Julian Le Vay: Thoughts on Government
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HOW A PRISON GOES BAD

26/8/2018

6 Comments

 
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NOTE [added 1 September: I have received quite a few comments privately on this piece; I have summarised some  of general interest at the end]

I have been reading the report of the internal MoJ inquiry into the major riot at Birmingham prison on 16 December 2016, which had been withheld, but then released this week following a Freedom of Information Act application. It has been redacted, but not much.

The report, by a former Director of what was then the National Offender Management Service (NOMS), is a most illuminating document, detailed, balanced, thoughtful. It not only casts light on how Birmingham prison reached the dire state described by the Chief Inspector in his Urgent Notification last week, but vividly illustrates perennial truths about how to run – and how not to run prisons – and what a difficult and important a job that is. Anyone seriously interested in prisons ought to find time to read it.


It comprises first an analysis of what happened on the day of the riot, and second how the prison had deteriorated in the preceding 12 months, to the extent that staff had effectively already lost control well before the riot.

I am not primarily interested in the actual riot, but the detailed, minute by minute account of the loss of control is as gripping as any film – quite terrifying. It sets the scene by describing how staff shortages and high turnover over many months placed staff, inadequately supported by management, under intolerable pressures and lead to disrupted regimes which in turn fueled prisoner boredom and discontent, and how staff gradually ceded control of the wings to prisoners. Then, on the day, an act of defiance by a couple of difficult prisoners gradually escalated, needlessly, as several opportunities to contain things and regain control were lost due to muddle and lack of grip by middle and senior management. Prisoners reacted to indecision by turning to violence, and soon even those who'd have preferred to stay out of it felt obliged to join in.

But the report also records some acts of great courage by staff, in rescuing vulnerable prisoners from danger and holding vital control points despite ferocious assaults by groups of prisoners. One scene sticks in my mind: one wing had been lost, staff were running for safety, but one staff member saw a vulnerable prisoner who he knew would be severely beaten or worse, ran back at great risk to get him and they both then pelted down the wing for safety, closely pursued by a mob. 'The PCO described his good fortune at managing to unlock and secure the gate first time...' I bet he did, but not in those words! Once safe, the prisoner vomited with terror and relief and then would not leave the PCOs side. G4S failed abysmally - but some of their staff past the test alright. I do hope their courage and professionalism has been recognised.


The second part of the report analysis how control was eroded over the preceding year or so and it is hugely illuminating.

First of all it confirms what I have been saying, that the prison which improved markedly after transferring from public to private sector management in 2011. Two things confirm that. The first is
research by Alison Liebling and others which showed improvements on 7 dimension
s of prisoners' 'quality of life, as defined and measured by them: ‘respect/courtesy’; ‘humanity’; ‘decency’; ‘care for the vulnerable’; ‘staff-prisoner relationships’; ‘fairness’; and ‘personal autonomy’. Even more marked were improvements in the quality of staff life, including relationships with line and senior management – an extraordinary and important achievement, considering the feelings aroused by of the competition in 2011 and the highly contentious move of existing staff to the private sector, the first time this had ever happened and (as I know) long the source of much worry amongst policy makers (1).

This progression is confirmed by NOMS own Prison Rating System, a sophisticated analysis of many aspects of prison operation, over the same period. I reproduce a graph, showing this improvement according to the PRS after privatisation in 2011, up to January 2015, and the precipitous decline thereafter. (Note the steady decline in public sector prisons right across this period).

 Chart 1: ratings of Birmingham and other local prisons, NOMS Prison Rating System
 
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Thus, two lessons immediately: 1) privatisation was not the issue (in fact, privatisation had initially lead to much improvement, albeit from the low level in which previous public operation had left the prison); and 2) the decline began way back - two and half years ago.

The report doesn't help pinpoint quite why the prison started its rapid decline around January 2017 though there is some suggestion that the drug problem became much more serious around then, and it was just at that time that assault and self harm rates began to accelerate upwards across the whole system, so the cause or causes weren't peculiar to Birmingham.

Staffing levels, and management of staff, are central issues. Mapping the data from this report onto data I previously obtained under FoI, budgeted staffing levels (302 PCOs) have not changed significantly since 2013, and probably not since privatsation in 2011. Neither budgeted staffing levels not the number of posts vacant (about 3%) were out of line with other prisons – on my analysis, the staff:prisoner ratio was considerably better than Doncaster or Thameside, and about the same as Parc.

Chart2: Prisoners per PCOs at Birmingham and comparator contracted prisons

Source: PQs and FoI applications
Note: figures affected by reduced pop after 2016 riot

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But the staffing situation was nevertheless very difficult indeed – dangerous, in fact - for several interconnected reasons:
  1. High churn rates – resignations were running at 24% a year and recruitment wasn't quite keeping pace: thus a high proportion of staff were very new to the job (2)
  2. An astonishing 60 PCOs were off work, on sick leave on training or away for other reasons, thus the prison was trying to operate with 1 PCO in 5 (on very tight budgeted staff levels) not available for work.
  3. On top of that, poor work detailing meant that staff deployment was a shambolic affair, with staff were turning up to work to find they weren't detailed, and managers never knew how many staff they'd have available. This lead to regimes activities being needless interrupted and staff time being inefficiently used.

Thus the planned regime simply wasn't deliverable with available staff numbers. There weren't enough staff on landings, prison routines were constantly disrupted and many staff were new, insufficiently trained and scared. As we know from previous breakdowns in privately run jails (3), this quickly become a downward spiral - with new staff appalled at what they are faced with and choosing to quit or, if they stay, adopting passive and defensive behaviours rather than challenging misbehaving prisoners. Staff complained that they were poorly supported: 'new staff....reported feeling ignored and marginalised, and made to feel like a nuisance when they asked for help'.

Management was suprisingly weak in many other ways. Managers insisted staff maintain a 'full regime' despite low staff availability - but it wasn't even clear to staff (or the inspectors) exactly what 'the regime' was supposed to be! Policy on unlocking was also unclear and staff seemed to make it up as they went along.

The consequence of all this was a gradual retreat from authority, a process so familiar in prisons. Prisoners bullied and conditioned staff into unlocking everyone, whether entitled or not, and the IEP scheme, meant to relate privileges to behaviour, was hugely undermined. Unlocking everyone despite dangerously low staff availability became the norm, with staff unable to reconcile safe staffing minima with management's demand that they to keep prisoners unlocked (4). Staff over relied on prisoner volunteers to keep order, and some of these were not averse to using violence to do that job (and possibly some had other agendas of their own). The jail really had been turned over to prisoners to run! Extraordinarily, prisoners who wanted to be unlocked into this unsafe environment were asked to sign that they accepted the risks, an absolute abdication of responsibility by staff (and G4S). Staff seemed to loose control of such a basic thing as movement around the prison. Discipline was effectively abandoned - in one period only 1 in 6 serious assaults were referred to the police, of 655 cases so referred only 1 in 10 lead to a conviction. Violence went unpunished and drug taking went unchallenged. Vulnerable prisoners were not properly protected.

Prisoners' attitudes in such circumstances varies – some relish the lack of control, but others find it threatening and difficult, finding they were unable get the help prisoners need from staff to get things done:


“There as too much freedom,we like freedom but there weren't enough staff to deal with it. You weren't made to do anything, no discipline, no structure ...You couldn't find any staff...they let us get away with anything. Every day was a party. But boredom leads to badness”.

“Boredom leads to badness” - that should be inscribed above the gate of every jail.

The result was soaring rates of drug taking, self harm, and prisoner on prisoner and prisoner on staff violence.

Chart 3:  number of PCOs, assaults, self harm incidents at Birmingham, all per prisoner
Note: PCOs on right hand axis, other data on left axis

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The management response was hopelessly inadequate. There are processes to ensure data such as assault and disciplinary rates are regularly reviewed in jails and that Governors/Directors regularly assess the stability of the jail. At Birmingham management assessed the jail in the weeks before the riot as 'low' i.e. 'there is no evidence of increased stability or instability above the norm'. That had been the rating throughout 2016, as every indicator turned glaringly red. The report suggests that management had been conditioned to accept very high levels of violence as the 'new normal'. In plain English, management had completely lost it.

And not only management. Each private prison has a number of MoJ officials – 'Controllers' – permanently working inside the jail to monitor operations. Here the report is more reticent, but it appears to confirms what a number of commentators have remarked on, a tendency of the Controllers to retreat into bureaucratic box ticking role. If they had walked the walk and talked to staff and prisoners, and taken a more common-sense over view of the state of the jail they could not have missed the seriousness of its rapid deterioration. But the role of Controller has always seemed unclear, and it's a difficult job to fill, because you need able experienced Governor grades, but such people would rather be off running their own jail.

What does the report, on a riot 20 months ago, tell us about the run up to the Chief Inspectors extraordinary intervention last week? Difficult, because until the full report on this most recent inspection is published, we don't know what happened in those 20 months. But I think we can already say:
  1. Birmingham's problems were not caused by being privately managed.
  2. After some years of improvement post privatisation, there was a sudden sharp downturn in early 2016.
  3. We don't know why that occurred, but increased availability of drugs may have played a part.
  4. Staffing was the main reason why the prison became so unsafe: while there had been no staff cuts, as in many public sector prisons, and absolute numbers of PCOs were comparable with other privately run prisons or better, a huge proportion were not available for work, high churn meant many staff were new and lacking confidence, while poor detailing meant those who were available weren't used to best effect.
  5. Consequently the regime wasn't deliverable; and managers insistence on nevertheless high levels of unlocking meant the prison was poorly controlled.
  6. The many signs of management weakness in fundamentals– in detailing staff, defining expectations in terms of regimes, managing unlock, dealing with assaults, assessing the stability of the prison, then lack of grip and decisiveness on the day of the riot, and poor adherence to procedures for managing disturbances, are quite damning.
  7. Drug taking and violence escalated phenomenally in a short period and were not confronted or punished, self harm also escalated.
  8. Staff withdrew from formal control in many ways, and let prisoners run things to a clearly unacceptable and dangerous degree. Control had been lost long before the riot.
  9. It appears the Controllers assumed a somewhat bureaucratic role, whch may have stopped them from grasping the urgency of the situation.

What we still don't know;
  1. Why the turning point in early 2017, after years of improvement? Was staff churn always so high, if not what caused it to rise to this level? Which came first – high churn, drugs, violence?
  2. Did the Inspectorate misread the situation and overstated management grip in their February 2017 report, so soon after the riot?
  3. What happened to the recovery effort praised in that report, in the 20 months since then? Did it begin to make progress and then fail, or did it never gain purchase?
  4. Just where is the contract in all this? The case for contracting is that it sets out clearly what standards must be delivered by the operator and provided sanctions if it does not. Were there financial penalties on G4S during 2017 and 2018 (I've FoI'd this and will post the answer here)? If not, was the fault with the contract, or with contract management? (5)
  5. Why did both G4S, and the MoJ, failed to understand the serious of the deterioration until the Chief Inspectors intervention last week? In the case of G4S, how is it that the company can make such an outstanding success of some prisons (6), and such a disaster here? Is it funding? Leadership? And  whatever the cause, faced with this obvious failure, over several years, why didn't G4S act? (The other prison operators have serious problems, but with them I don't get the impression that I do here, and at Medway, that management simply didn't register what was happening.)
  6. In the case of MoJ, did they not understand that there was a quantum difference between the failures at Birmingham compared to other jails? Did the Controllers under-estimate the seriousness of the deterioration during 2017? How was the Controller's role defined? Was a factor abolition of area managers, who in earlier times would have been in and out of such a deeply troubled prison weekly, and not needed the Chief Inspector to tell them how bad things were? Does the withdrawal of procurement expertise to the centre of MoJ, away from the Prison and Probation Service, help explain why contract management was ineffective, or slow? Are civil servants so overwhelmed by the sheer number of failing prisons - more, on the latest count, than ever before since this system was first set up - that they can no longer respond
  7. What had the Minister been told was the state of the prison before last week?

More general thoughts prompted by reading this extraordinary document:
  1. MoJ must start publishing staffing data for all prisons, public or private: the budgeted levels of operational staff, number actually in post, churn rates. Sometimes it has said that such data for privately run prisons is commercially confidential – but then they do publish it, in response to PQs or FoI applications (so it can't be commercially confidential). Besides, all the operators know the others' staffing levels!
  2. When I worked in the then Prison Department in the '70s and '80s – yes, I am incredibly old! - the great scandals were about staff beating or abusing prisoners – the beating to death of Barry Prosser in the healthcare unit (yes!) of, as it happens, Birmingham jail, in 1980; the beatings that sparked the Hull riot in 1976 and followed after the surrender; the systematic torture of prisoners in the Seg Unit at Scrubs over many years, til exposed in the late 90s; the racist abuse at Brixton and other jails exposed by the CRE around 2000. (Note for Guardian writers and readers: all these vile episodes were committed by the public sector. whose monopoly you are so desperate to restore.) But in recent years, the scandals are rather of prisoner violence towards other prisoners, and towards staff (Medway STC is one exception I can think of). It's the staff who are now running scared. Is that progress? In a sense, maybe: but a pretty perverted sense.
  3. One thing that we have got right: a series of Chief Inspectors of Prisons who are informed, methodical, passionate, balanced and fearless.  and one cheer also for the FoI Act, that got this secret report unsecreted.
  4. Reading this report, and the profound causes of the malaise at Birmingham, Rory Stewart's insistence that assault rates can be cut by 10% or 25% in 10 prisons in 12 months if chaps just get down to it with a will, looks very misjudged. Recovery isn't just a matter of a super-manager being parachuted in, or windows being re glazed – its a hard grind to recruit and retain the right calibre of staff, properly train and support them, and to restore confidence, respect, relationships; that will take years. In my book, I looked at 4 prisons, 2 public, 2 private, that reached near meltdown around the year 2000: in some cases, they were still in very poor state years later. I dont fancy Stewart's chances.
  5. Finally, what on earth can be the benefit of sending more and more prisoners into such hell-holes? Isn't it clear that it can only lead to their becoming addicted to drugs and brutalised, whether as victims or perpetrators? Aren't we again at the position, enunciated so clearly by a previous Tory minister in 1992, that sending offenders to prison in the hope of reforming them is 'merely an expensive way of making bad people worse'? (7).


COMMENTS RECEIVED

  1. the Deputy Governor at Birmingham left to go to Altcourse just before the riot - and before that, the Governing Governor had been providing support to Altcourse, which had been in difficulty. This may have had weakened management at Birmingham.
  2. the mix of prisoners at Birmingham may have got more difficult due to local police decisions to focus on bringing members of violent gangs to justice.
  3. a wider and interesting point: the emphasis on leadership by the Governing Governor is overdone. As important, if not more so, is the quality of middle management which (this commentator says) is not as good as it needs to be throughout the prison system. Many of the weaknesses at Birmingham described in this report, before the riot and during it, were at middle management level, not right at the top.
  4. the riot also illustrated failure to train basic grade staff and their immediate supervisors well enough in responding to incidents – better trained staff might have acted at once to contain the situation before it escalated.
  5. the dividing line, especially in local prisons, between just coping and losing control is very thin. There are other Birmingham that could happen any day.
  6. is the private sector sometimes too keen to please the client (who after all is a monopoly purchaser – there's nowhere else to go for business)? Do private prisons too readily accept dangerous overcrowding and transfers of difficult prisoners? (Of course there may also be a purely financial interest in taking more.) [From what I hear, this was the (or a) cause of the G4S Olympics fiasco – a very late demand from Government for masses more security staff, which G4S couldn't realistically recruit in the time available, but still they agreed to do it.] As described in my book, much the same has been said of public sector Governors also – that they no longer feel able to 'push back' when the centre makes unreasonable or unsafe demands.
  7. Finally, an addendum from myself: in light of this article one cannot simply blame 'cuts' for the state of our prisons. There weren't any cuts at Birmingham – and it had functioned fairly well with the same staffing levels for some years after moving to the private sector. Rather, as several Governors have put it to me, the tighter staffing levels imposed by MoJ on public prisons, and which have always been the case at most private prisons, are OK as nothing out of the ordinary happens. When it does, e.g. the arrival of the NPS drugs, or local recruitment problems, there isn't a margin for coping with it.
  8. NB as I have previously documented, Altcourse is an interesting example of cuts in the private sector; always extremely well funded, its excellent performance seemed to dip after MoJ demanded money back, in the early part of this decade - contracts are little protection against aggressive demands by a monopoly purchaser! -  which had the effect of driving the staff: prisoner ratio up.
NOTES

(1) In my time it was thought too risky to attempt without much reducing prisoner numbers during transition, something we never had space to do.

(2) Rates this high were common in privately run prisons in the early 2000s and as recounted in my book, were key in bringing several to crisis point. Public sector rates were then very low – possibly too low. I had been told that changes in the labour market after the 2008 Crash had brought rates right down, to 10% or so: but clearly, not everywhere. The Crash feed through into austerity and big cuts in starting pay in the public sector, raising public sector churn rates and contributing to problems they have been experiencing. One conclusion is that Government should publish staffing levels in all prisons, public or private, and also vacancy and churn rates

(3) Particularly, at Ashfield in the early 2000s, described in my book, in the section 'Four prisons in trouble' – the only other time that Government has intervened to take over a failing privately run prison.

(4) Management's insistence on keeping prisoners unlocked, even though for many, there was nothing for them to do is odd, because it appears there was nothing in the contract to require this.

(5) Curiously, there were significant financial penalties in respect of this prison in 2011-12 (£95k) and 2012-13 (£205k) – the very years when the prison was doing OK! See Commons WA 5.10.16

(6) “Overall, Altcourse was in some key areas bucking the trend when compared to other local prisons. While it still faced significant challenges around safety, the downward trend in violence and anti-social behaviour was highly creditable. This was in no small part due to the energetic and proactive approach taken by the prison. Levels of self-harm, while still high, were also decreasing and there had been a real focus on ensuring men with these vulnerabilities were identified and cared for. This had been supported by a positive staff culture, a good focus on decency, and an excellent regime that was being delivered consistently….. the director and his team were providing strong leadership, enabling a highly positive staff culture and delivering good outcomes in many key areas. Overall, Altcours e showed that a local prison can provide fundamentally decent treatment and conditions for prisoners, despite facing many of the same challenges as the rest of the prison service. There was much here from which others could learn.“

Stick that in your pipe and smoke it, Guardian!

(7) 'Crime, justice and protecting the public'. Home Office, 1990





6 Comments

PROBATION PRIVATISATION: A STUDY IN FAILURE

3/8/2018

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The traditional time for burying bad news is just as Parliament rises for the summer hols. So, no surprise that Gauke chose 27 July to announce early announced termination of the probation contracts (1). For it is a study in failure – one failure heaped upon another.

Failure to admit failure

A policy that was predicted by absolutely everyone to be bound to fail, has now been demonstrated conclusively to have failed. You might have thought therefore that the statement might include words like 'unsuccessful', if not 'failed', or even, 'sorry'. Gauke is having none of it. This isn't a statement about what went wrong, oh no, it's a 'consultation' on how everything will be done even better in future. (Those SPADs! Worth every penny!) His statement is a masterpiece of evasion. In fact, reading it, you'd be hard put to understand quite why he is terminating the CRC contracts at all. It ought to be a set text for A level politics.

First, note the title of the consultation document (2): 'strengthening' probation'. A probation service that, according to inspection reports, and to MoJ's own performance assessments (3), was performing well, has been smashed to the ground and is now lying helpless on the floor. But, hey, let's not dwell on that assault, all we are about is 'strengthening' the victim.

Then, the Big Lie: CRCs cut reoffending by 2%, and thus demonstrating the success of privatisation. But he doesn't give the source. or time frame. Nor, of course, does he say what the corresponding figure is for the NPS, similar adjusted for changes in case mix (so embarrassing, if the public sector had done just as well, or better!). I have FoI'd this information and will post it here.

Now, I have set out before why I do not believe that changes in the reconviction rate can be attributed to the work of the prison or probation services. In summary:


  1. Around 2000, both services were well funded to reduce reoffending systematically using 'what works' evidence - and the fall was small (4). A priori, a similar effort now, using similar research evidence, but with grossly inadequate funding and huge organisational dislocation, is extremely unlikely to produce a better, or even a similar result.
  2. Over the past half century, reconviction rates have fluctuated very considerably for reasons that are plainly not to do with what was then happening in prisons or probation (5).
  3. Offending rates have halved since the mid 1990s, for reasons that are not understood: since reoffending is merely one type of offending, we would expect the reconviction rate also to fluctuate, for the same poorly understood reasons.
  4. Reconviction rates have been falling since the mid 2000s for a range of disposals that are nothing to do with the correctional services: fines, cautions, discharges (see graph 1 below)
  5. For community sentences i.e. those supervised by the probation service, reconviction rates had been falling since 2013, years before the TR changes – indeed they fell by more than 2 percentage points in 2013-14, before CRCs began,  and by  2 points way back in 2005-06, and in neither case was there any explanation for such a change -   so how can anyone think the 2 point fall since the CRCs began is proof of their effectiveness?
  6. Reconviction rates for prisoners have fallen by a whacking 8 percentage points since 2007, but does anyone seriously maintain  that prisons are doing a much, much  better job now than in 2007, in their current  state of violent chaos, with inspection reports reported sharp deterioration in safety, conditions and resettlement work? (Graph 1 below)

Graph 1: reconviction rates by disposal, 2005-16
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.Source:  Proven reoffending tables July 2016-September 2016, MoJ.  Notes: figures are Apr-June each year. Note: New data source from Oct 2015

It is therefore simply not credible to claim that the fall in reconviction rates for those supervised by the by probation services mark the 'success' of CRCs. It is certainly possible that the work of the CRCs  made some contribution, also possible that it did not – but to claim 'CRCs cut reoffending by 2%, therefore privatisation worked' is simplistic nonsense.

Gauke continues to elaborate on the 'successes'. ' Privatisation 'opened up the delivery of probation services to a broader range of providers and created the structure that we see today'. Perfectly true. The probation service was hacked to pieces, the pieces flogged off to the highest bidder and that created the chaotic mess we see today.

Then, 'there is strength in this mixed market approach, with scope for a range of providers....to continue to bring fresh, innovative ideas to probation services.' That is not the view of the Chief Inspector of Probation: 'We have seen small innovations – a peer mentoring scheme in Kent for example, and three social action projects in Durham – and some aspects of CRC operating models can be described as innovative as well. But there are few signs of innovation in resettlement work, or in other casework. Instead, well-established evidence-based approaches are on the wane, worryingly so '(6). And on through the gate services, 'the few examples of innovation we saw were on a very small scale, so are likely to have no more than a negligible impact on reducing reoffending'(7).

But the Chief Inspector does recognise some innovation - though not the kind Gauke lauds: 'Some [CRC staff] do not meet with their probation worker face-to face. Instead, they are supervised by telephone calls every six weeks or so from junior professional staff carrying 200 cases or more. I find it inexplicable that, under the banner of innovation, these developments were allowed' (6).

So, how has it all gone? The public sector National Probation Service is performing well, Gauke observes. But CRC contracts have faced 'challenges'. Not 'failure', no – just 'challenges'. What a wonderful word: a 'challenge' obviously isn't the fault of the person being challenged, it somehow just arrives from outside. Moreover a 'challenge' can be quite a good thing, can't it, something you 'rise' to? (Those SPADs again.). But 'difficulties were to be expected'. And that's true - they were 'expected'.

So much for the Ministerial view. Privatisation hasn't 'failed', there have just been some 'challenges' and now we can make it work (even) better by cancelling the contracts. Gauke is hugely better than any of his 4 predecessors (but goodness, what a low bar that is!). At least he is willing to state publicly the obvious truth, that our rates of incarceration are far too high and are a waste of money. But he is also a man whose reaction to shocking failure for which he personally is accountable is to dissemble. It needn't be so. A thing I much admired in Martin Narey, when he was head of the prison service, was his willingness to confront failure, own it, and use his own public dismay to fuel determination to improve. Honesty is not only possible: I suggest it also works better.


After Gauke, we get into the 'official' part of the document, where there is a little more candour. Yes, the quality of service has been 'falling short' in ' a number of areas'. But the reasons for this are 'numerous and complex'. There isn't a much specificity here about actual performance - so let me supply some. Why not start with MoJ's own metrics:
 
Graph 2: performance against 18 metrics
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Source: Community Performance Quarterly Management Information release April 2016-March 2017 Ministry of Justice

Public sector doing  what it says on the tin: private sector not doing what it says on the tin. Clear?

Or just review the wealth of testimony from auditors, inspectors, Select Committees.
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This isn't a few 'challenges' here and there - it's evidence of serious, system-wide failure.

Failure to understand failure

Gauke says he wants to 'use the lessons we have learnt so far'. That of course requires one to understand the reasons for failure – as well as being willing to acknowledge failure in the first place. What were reasons?


MoJ's view, in the consultation document, appears at first to be that it was just a technical problem - the volumes projections and financial terms and assumptions of the contract (i.e. the guts of any contract!) were all wrong. Specifically:

  1. There has been a steep decline in community sentences, so the volume of business for CRCs was lower than expected.
  2. Of the remaining community sentences, a higher proportion than expected are serious cases that go to the NPS, not CRCs.
  3. There are 2 ways of measuring reconvictions, and while CRCs have achieved a fall in the number of offenders reoffending (binary measure), there has been an increase in the average number of offences which each reoffender commit (frequency measure) which which hits CRCs income from Payment By Results (PBR).
  4. The baseline data for frequency of reconvictions was from 2011, years before the contracts started, again affecting PBR.
  5. The contracts got wrong the ratio of CRCs fixed to variable costs, so when volumes fell, payments didn't cover fixed costs.

Three things are striking about this list.

First: most of these things were known, or should have been known, before the contracts started. The fall in community sentences started nearly a decade before these contracts began. The rise in frequency of reoffending by those getting community sentences has been going on since 2009. And it should have been obvious to MoJ that CRCs should not be judged against a 2011 baseline – 4 years before they started work.  CRCs' cost structure should, of course, have been properly researched and understood as part of the procurement process. And that PBR might not be easy to apply the mechanistic way envisaged, and might not produce better results, was very apparent from the ambiguous results from MoJ's pilots in two prisons, but MoJ aborted those pilots early (8).

The second thing is that although MoJ ought to have known these things, there isn't the slightest acknowledgement of its culpability in this report. (No surprise, in a Department which in the teeth of all the evidence to the contrary, tells MPs what a strong financial grip it has (9)).

Thirdly, this isn't the first time such mistakes by MoJ have caused a contract to collapse: the collapse of the Carillion contract was also due to MoJ contracting on the basis of wrong understanding of cost structures, in that case, their own costs that they didn't understand (10).

In short, the document presents the reasons for financial failure as if they were the work of chance or external forces: it fails to acknowledge the extent to which MoJ itself created these difficulties.

But, as we read on, its transpires that there were many other serious mistakes and omissions in the contracts, which contributed to the failure of the contracts. It is astounding, for example, that MoJ wrote contracts for resettlement services that specified only one output – a plan, piece of paper – and nothing about what the plan must contain, let along actual results for real prisoners in the real world (7). Hidden away later in that report are appalling figures about the lack of care for the very prisoners who CRCs were set up to see 'through the gate'. 1 in 3 leaves prison with no where to stay, 2 in 3 of those need help with drug abuse on release, don't get it, only 1 in 6 is in a job a year after release. Never mind – there was a piece of paper filed somewhere with their name on it. How could officials think that was adequate?

Likewise, as the Chief Inspector also observed (why did it take the Inspector to notice how bad things were – did MoJ not know - or was it hoping no-one would notice?), MoJ was so hands off that it didn't think it necessary to lay down any basic requirement for the nature of probation officer/offender supervision – like, they should ever actually meet (6). Or that they should meet somewhere which gives them dignity and privacy – not a public library for example  (11).

Likewise, that the contracts don't say much about the content of Rehabilitation Activity Requirement orders (RARs), introduced in 2015, which allow CRCs freedom to do much as they liked. It is conceded that as a result quality is 'patchy' and sentencers 'often' lack confidence in them (contributing to the collapse in community orders and the remorseless increase in custody).

Much of what MoJ says it will now do, in new contracts, prompts amazement that they should only think of doing it now, three years into the contracts. MoJ plans to introduce minimum standards and measures of output – you mean, in 2015 you thought it OK to write contracts without them?

Some of these appalling omissions of what seem essential contents for any service contract must be put down to Tory dogma, a magical belief, that is refuted everywhere by real world evidence, that freed of all requirements to actually do anything properly or decently, the private sector will just 'innovate' its way to outstanding social results. But officials, too, are surely to blame. I very much doubt Grayling told them not to require anything in the 'Through the gate' contracts, other than a piece of paper, for example.

And it is an extraordinary lapse, because the MoJ has not one but two full scale, worked examples of how to specify and monitor complex services for offenders, worked out over many years: the creation of standards for a mixed public/private prison service since the mid 1990s, and the creation of a national probation service in the early 2000s. All these issues about the balance between central specification and local initiative were explored then, and balances set and revised in the light of experience over many years. There is therefore no excuse for having for that balance so extravagantly wrong now.

But it's not just another example of poor contracting by MoJ (12).
As the many external reports observe, there was a fundamental design mistake in the whole enterprise – the balkanisation of probation into many separate organisations, creating two parallel services in every area, the public sector NPS and private sector CRC. The problems this would create in a service which already had difficultly in working seamlessly with many other agencies, including the prison service, should have been obvious – and were obvious, to the rest of us.

It should be obvious to the MoJ also - because much of the consultation report is spent spotting ways in which balkanisation created new problems, and then trying to retro-fit some sort of national coherence to this incoherent model. Examples are the difficulty of ensuring adequate professional raining or standards, or [professional development; difficulties in partnership working with other agencies; difficulties of applying performance measures to results achieved through partnership working; difficulties with data sharing and inter-operable ITC. [MoJs promise to invest in ITC to aid data sharing will raise a hollow laugh in CRCs: this is what the Chief Inspector has to say on the subject:

“Despite significant CRC investment, implementation of new IT systems so central to most CRCs’ transformation plans is stalled, awaiting the essential connectivity with other justice systems, yet to be provided by the Ministry of Justice.” (my italics)]

Nevertheless, heroically, MoJ manages to ignore the issue of balkanisation completely, or rather, it has to ignore it, because Gauke has already decided that he will not countenance a return to a national service – because that would have to be a publicly run service. This means the report completely fails to identify the basic flaw of the design of this brave new world.

Failure to learn from failure

MoJ won't acknowledge the extent of its failure, or its own contribution to failure, and mistakenly thinks, or pretends to think, that the reasons for failure are limited to technicalities of the contracts. No surprise, then, that it shows every sign of failing to consider a different approach, one that might stand a better chance of success. Instead, they propose to repeat the failed experiment, on slightly different terms.. It is probable that new contracts which will give the CRCs more money will lead to some improvement in their performance. However the problems due to a fractured, balkanised service will remain.

What lessons should have been learned?
  1. if it aint broke, don't break it
  2. the public sector service has significantly outperformed the private sector
  3. innovation by CRCs has been of marginal importance, and not all of it benign (13)
  4. MoJ has been shown, yet again, to be surprisingly bad at contracting for services
  5. the claim that the fall in reconvictions was an achievement by the CRCs is not credible
  6. The basic aim of this privatisation, to get money out of probation through efficiencies for reinvestment in supervision of short term prisoners, has manifestly failed. But, in any case, that aim is now overtaken by Gauke's plan to end short prison sentences.
  7. PBR has been shown, yet again, to be a dubious device, requiring a rewriting of the ground rules to make it 'work'
  8. there is something to be said for a national probation system and something to be said for a locally organised and accountable system, but nothing at all to be said for a divided, duplicative and balkanised national system.

To which I add: this saga shows - yet again – that there is a major flaw in our Parliamentary system in that it does not permit Minsters (or civil servants) to be called account for their failures, however catastrophic,if they have managed to move on before disaster is evident. Parliament should change the rules and summon the guilty back to face the music. Starting, of course, with one Chris Grayling.

What should be done now? I don't know enough about probation to say confidently what the right model is to adopt now. But I do say that given the lessons spelled out above, it is irrational not to carry out a detailed and objective assessment of an option for returning to a single, national and mainly publicly run probation service.

I don't say that as an uncritical admirer of the pre-2015 service. In particular, it was very expensive (figures that follow are from an excellent study by the Centre for Crime and Justice Studies (14) ). In the 7 years from 2000, probation spending increased by an extraordinary 50% in real terms: over 12 year period, numbers supervised rose by much less (40%) than front line staff (65%). It is unclear that the results justified this huge jump in costs. And since then volumes of community sentences have almost halved. Pre 2015 probation also involved wasteful diseconomies of scale between lots of small Trusts, some tiny; and wasteful duplication e.g. of offender programmes for the same offenders in the same areas, as between prisons and probation services. Data I saw in the late 2000s for Unpaid Work in London suggested a hugely inefficient operation.

So I think it should be possible to develop a much cheaper public service model than the pre 2015 service, It would be fully integrated with the prison service into a single correctional service, sharing the same back office, procurement etc. functions. In due course the private sector might have another chance in a more sensible way, contracting out both prisons and probation in a significant area e.g. Kent so as to unite prison and community services under one provider, but with properly written and researched contracts and effective contract management (with real teeth and effective step in powers, as with prisons).

There are other factors favouring  an integrated national service. As this saga shows, the correctional services form an integrated system and it is often necessary to move resources around as workflows change. As shown here, a fractured, partly contracted service  makes this difficult. This will again be a problem when Gauke achieves his aim to abolish short prison terms, which will require a shift of resources from the prison system to the community. These changes can't be accurately forecast and it will be tedious if contracts  have to be constantly reset as such changes become evident. Similarly with changes in the balance between high and low risk offenders.


Gauke wont even mention this possibility, much less look seriously at it. The terms of the 'consultation' preclude it. I wonder why not? He does not strike me as one of the Tory fanatics on privatisation: he has already cheerfully renationalised the Carillion FM service and is proposing a dual public/private track for new prisons. And he's been brave enough in questioning the Tory addiction to incarceration. Renationalisation would increase pressure on Grayling, as author of this disaster: but he has lost much support in the party through the railway cock-ups this year.

The only explanation Gauke hints at for not even thinking of renationalising is that he is intent on
'minimising the disruption that more significant reform could entail' - which will raise a hollow laugh from the thousands of staff whose careers were ended or blighted by this wholly unnecsary and destructive privatisation. So its OK to rip everything up when privatising, but not when nationalising?

Is it cost? True, an all public, union-dominated model would tend to drive up pay and pension costs way into the future. But MoJ has shown pretty brutal determination to reduce these costs in the publicly run prison service, too much so in fact. And the cost of profit margins, and of procurement, would be saved.  In short, Gauke can't know what the balance of costs would be, without doing the appraisal I suggest.

I wonder if it's simply this: the Tories are saddled with being the party of endless privatisation, and can't now get off that particular horse, even if they wanted to. After all, Labour is now the party against privatisation: therefore by the law of 2 party politics, the Tories must favour it. I don't think it's even a matter of ideology: who, looking at many disasters of privatisation now crowding our newspapers, could possibly hold any more to the idiot dogma of 'public bad, private good'? Like armies in WW1, the Tories find themselves in the trenches facing the enemy opposite and have long ceased really to believe in privatisation -  but 'we're here because we're here because we're here'.

At any rate, Gauke's failure to consider a national. public service is another failure, but probably not the last one, in this saga.

A final, personal note. I've been asked why I, an advocate of competition in prisons, favour renationalisation in probation. Simple: I favour intelligent privatisation, that produces public benefit: I am against stupid privatisation, that does not. Prison is intelligent privatisation. Probation is stupid privatisation.

Notes


  1. https://www.gov.uk/government/news/justice-secretary-outlines-future-vision-for-probation
  2. https://consult.justice.gov.uk/hm-prisons-and-probation/strengthening-probation-building-confidence/
  3. In 2010-11, MoJ assessed evryr single probation trust as giving either good or exceptional performance. See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/218351/probation-annual-performance-ratings2010-11.pdf
  4. http://www.julianlevay.com/articles/20-years-of-reducing-re-offending-well-did-it-work
  5. ditto, see graph 3
  6. https://www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2017/12/HMI-Probation-Annual-Report-2017lowres-1.pdf
  7. https://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2017/06/Through-the-Gate-phase-2-report.pdf
  8. For an interesting analysis of the lack of good evidence for PBRs working.  and some of the issues with their use see http://russellwebster.com/PbRlitreview.pdf
  9. http://www.julianlevay.com/articles/not-on-the-money
  10. http://www.julianlevay.com/articles/moj-carillion-amey-partners-in-failure
  11. https://www.theguardian.com/society/2017/nov/01/privatised-probation-services-libraries-ex-offenders.
  12. http://www.julianlevay.com/articles/why-is-procurement-in-the-moj-such-a-persistent-failure
  13. Much the same conclusion as I reached about private prisons in my book. The belief that innovation will always transform services for the better may be out of place in services like prison and probation which turn round face to face relationships.
  14. https://www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/Prison%20and%20probation%20expenditure%201999-2009.pdf)








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    I was formerly Finance Director of the Prison Service and then Director of the National Offender Management Service responsible for competition. I also worked in the NHS and an IT company. I later worked for two outsourcing companies.

    Now retired, I write about criminal justice policy (or the lack of it), cultivate our allotment and make glass.

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