In July last year the Criminal Justice Alliance sent a paper, How to start reducing the prison population, to Rory Stewart. They argued that the population could be reduced by 12,000 in 4 years, saving £900m. Some of their ideas can be done without legislation, some not.
I am in in favour of this sort of pragmatic ‘how to’ approach and we badly need to get prison numbers down quickly.
However, it is marred by mistakes and weaknesses which are all too common when pressure groups are keen to explain that this or that policy change will liberate huge amounts of dosh, as follows:
(In one respect, the CJA may have underestimated savings, in that a reduction of 12,000 or even 6,000 would be enough to close prisons, so there would be capital income as well. But that assumes the CJA is content to leave overcrowding at its present near record levels, with all the damage that does. On the other hand, if you keep all prisons open, so that overcrowding reduces as prisoner numbers fall, you much reduce your savings per unit, as it were. And in any case, on latest projects the population will continue to rise, making it problematic to close prisons only to have to reopen or rebuilt them later.)
It seems a little harsh to criticise the CJA since they have at least shown some of their their workings and tried to net of some new costs. But it’s very clear that the real net savings achievable through this plan are a fraction of the £344m a year claimed, that the £900m figure is misleading because arbitrarily accumulated over years, and that any net savings that can be made must stay in the prison system itself, if we want to alleviate their current disgraceul state at all.
As FD, I always thought smaller amounts based on realistic assumptions had more impact than big numbers resting on dubious foundations. And it matters much more now: because in the post Brexit world, where there is good reason to believe that the economy will slump for many years, and no reason to think rates of growth can ever recover to pre-2008 levels, the only way we can improve services – or preventing them deteriorating – will be through radical, but utterly realistic, ways of doing thiings differently. And we know, from so many examples, how difficult it is to realise savings in services through deliberate changes in policy and practice, rather than arbitrary cuts.
For the terrible truth is, we aren’t almost out of austerity – we are about to re-enter it, courtesy of the monstrous self-harm of Brexit.
Rory Stewart's plan for re-introducing competition for running prisons, announced in November, is the most ambitious and is some respects, most sophisticated ever attempted. But can it work?
For the private sector, there are three main deterrents to entering this market. First is the stop-start, hand-to-mouth nature of such competition, with no assurance of any long-term prospects – indeed, many competitions have been aborted or petered out half way through. Second is suspicion that, when the public sector is allowed to compete, there will be some sort of bias in its favour. Third, no company wants to win contracts at such unfeasibly low prices that failure is all but inevitable.
Stewart's plan addresses the first point with a 10-year programme, comprised 10,000 places in new prisons to replace ageing, cramped prisons with poor facilities, together with the re-competition of existing private prison contracts when they end (the first of the 25-year PFI contracts will end in 2022) – so, not far short of 20,000 places in total. It dwarfs anything that came before.
The 10-year planning horizon is unprecedented in this sector, and highly unusual in any area of public policy. It offers a long term 'pipeline' of commercial opportunities which is exactly what the private sector, particularly aspiring new entrants, need. This is not appreciated by those with no understanding of how the private sector works, which sadly includes many ministers as well as civil servants, who tend to regard the private sector as a tool for Government to switch on or off as convenient.
The need for a pipeline isn't greed: it's a commercial necessity. Bidding is costly: it requires the bidder to assemble a team, which must include a credible Governor or two who, if you are a new entrant, generally has to be poached from the public sector: and good governors will be hard to attract, especially if this is a first ever bid, since if unsuccessful, there may never be a prison to govern. A good bid team, plus lawyers etc, costs around £500k minimum, much more for PFI; moreover, these are people who could be bidding for prisons in other countries, or for other opportunities in the UK, so there are big opportunity costs also. There are huge diseconomies in operating one prison only. Prisons are a highly specialised market, so the company's board will need persuading that there are long-term opportunities. Government's habit of announcing competitions as one-off, abandoning many of them part way through (an astonishing 11 out of 14 market tests since 1992 have been aborted), and invariably awarding contracts to the existing big three operators, is massively discouraging to companies contemplating entry to the market, as I well know, having worked for two.
So, Stewart's 10-year programme is welcome indeed. Trouble is, the UK system of government makes such long-term strategies entirely undeliverable, especially where there is no bi-partisan agreement. By 2028, there will have been at least two General Elections, but probably several more – there is every likelihood of one being called in the next month! Labour strenuously oppose competition and are committed to re-introducing monopoly provision. Even within a single Parliament, Government spending planning has a maximum horizon of 3 years, so there is no guarantee of funding beyond that – especially as we approach the uncharted seas of Brexit, with likely further deep cuts in Government spending as the economy tanks. On top of that, there is the rapid turnover of ministers, and the strange convention nowadays, that continuity of policy within an Administration means nothing, rather we have a succession of distinct policies by different Tory minsters. And Stewart himself has pledged to go if he can't reduce violence in prisons by August 2019 (but expect some re-engineering of that promise: 'reduce' meaning 'stop rising further', 'prisons' meaning 'some prisons' etc).
So, the chances of his strategy lasting 10 years are vanishingly small. Proof of that is what has happened to previous strategies: the 5 year programme to compete a quarter of prison and probation spending launched in 2006 (1), or the grand plan in 2009 to increase capacity to 96,000 places and replace ageing city centre prisons with new ones, but with competition to run new prisons limited to the private sector (sound familiar?) (2) or Ken Clarke's competition for 9 prisons launched in 2011 (3). None of these lasted more than a year or two, or came anywhere near the volumes promised, for all sorts of reasons: lack of persistence and nerve by Government, change of minister or Government, the Crash, disgrace of bidders.
On the second issue, the public sector is apparently to be excluded - it isn't totally clear that Stewart means they will never be allowed to bid in any of these competitions, but that is seemingly what he says. This too will greatly encourage bidders. But is it in the public interest? If the private sector gain 7 or 8 new super jails, replacing perhaps 12 or 15, old public sector prisons, then the private sector share of the prison 'market' would rise from about 18% at present to around 30%. Why exactly is that desirable, given that as Stewart rightly says, there is no consistent difference in performance between the two sectors? Stewart does not say. Of course, the answer he should make, is to increase competitive pressure on the public sector. But if all the competitions for the next 10 years exclude the public sector, and if the growth in the private sector is entirely through new builds and new-for-old, and not through market testing of existing prisons, then where is the competitive pressure on the public sector? Successive heads of the Prison Service have said that an important driver of improvement in the public sector was knowing that if you persistently failed, another operator be brought in to take over your prison. On Stewart’s strategy, the public sector face steady erosion of their market share - but are never challenged to show how they could improve performance. 'Competition', yes - but never between sectors. Missing the point, surely.
This brings us to the question of the purpose of this strategy. Here Stewart is less than clear, and seems content with the usual platitudes that have been offered in every competition for a quarter of a century now. He says it 'is not about the difference between the public and private sector'. Rightly, because on quality, there isn't, and never has been, a clear consistent lead of one against the other; on price, there probably still is a significant private sector advantage but we don't know how much, and the main cost difference, pensions, is unknown, indeed unknowable.
So, what is Stewart trying to achieve? ' Driving quality and innovation'. But he has admitted that there isn't a difference on quality. As for innovation, the evidence is that innovation by the private sector, though useful, has been of marginal importance and certainly not a game changer, and not just in this country. (In my book, I make the argument that prisons are simply not a particularly suitable sector for innovation, for various reasons.) And there is nothing inherently good about innovation, it isn’t some sort of magic powder you sprinkle over everything – it can be harmful, as we have seen in probation.). The private sector did innovate in prisons, two decades ago, by cutting building times and costs in half and reducing operating costs by around 30%. But they no longer have quite the same edge now. And that was about cost, not what they achieved with prisoners.
Stewart also wants competition to reduce re-offending. On this, there is no evidence that private prison operators do so better than the public sector, here or in any other country. Nor privatised probation. I believe that looking to 'innovation' to reduce reoffending is a mistake, resting on an uncritical belief that innovation is invariably the route to improvement (it wasn’t in the 2000s: we just started managing. Though for Government, OK, that was an innovation.) We know very well what sort of things reduce risk of reoffending: we just don't do them very well, because they cost money. Indeed, as I have argued elsewhere, it is my growing conviction that for various reasons, no correctional service can reduce reoffending by more than a few percentage points, and any such success is likely to be drowned out by fluctuations in the reoffending rate due to societal and other changes which we do not control and do not understand. To be sure, to help the offender in front of you lead a more law-abiding, satisfying and self-reliant abiding life is always a moral imperative: but the correctional services are not a machine for changing society.
So, I am not much impressed by the supposed aims of this strategy. Yet surely, it isn’t too hard to describe what we really want. Not shiny gizmos or clever new panaceas. We want prisons that aren't desperately overcrowded or full of drugs, prisons that are safe, decent, and provide the regimes and activities which, we already know very well, help prisoners stay out of crime on release. Prisons we needn’t be ashamed of and which, if they don’t do much good, at least don’t do much harm. But all that costs money.
Which brings us to the third concern – the risk of the race to the bottom. Stewart says he wants 'value for money' but what does that even mean nowadays, when the entire system is in a bad way? Grayling cut public sector staff/prisoner ratios, and staff starting pay, to something much closer to private sector levels; staff ratios were cut in some private prisons too. Meanwhile there has been no relief from high overcrowding. Add to that the new drugs, and the result has been catastrophic: a prison system which in 2010 was in as good a state as it had been in living memory, has become, in local prisons particularly, a violent, drug-fuelled chaos that shames this country and, of such a thing were possible, this Government. (In 2011-11, not one prison received the lowest performance rating, giving 'serious concern'; last year, 15 prisons were so rated, with no great difference between public and private sectors).
So, the question is, can extending the private sector be helpful, in a system so damaged by austerity? I can see how it just might. Bigger, newer jails will mean significantly lower operating costs; and in addition, it looks to me that the private sector is still significantly more efficient than the public sector, not necessarily because the staff: prisoner ratio is lower, but because they get more work time out of staff, pay lower pensions, can be more sensitive to local labour markets, and so on. Put those things together and the operating cost of a new big private v old smaller public prison might be 25 or 30% lower per place. If those savings are reinvested in staffing levels and decent regimes, it might be that the private sector will have a better shot at running decent, safe jails, which moreover will have sufficient, modern regime facilities.
But will those savings be re-invested in the new prisons? I can’t see that happening. MoJ is currently running a structural deficit of £1bn a year, almost as big as MoD's. That is to say, current operations are under-funded by £1bn, which is being covered in various hand-to-mouth ways. If MoJ were a business, it would be required to file for bankruptcy. Brexit will for some years drive down GDP and hence spending, while driving up spend on benefits and support for what was previously EU funded. The court reform programme, which promised savings, is already in deep trouble and looks set to be next MoJ failure.
And there’s another obstacle, of Stewart’s own making, to retaining and reinvesting savings: rising numbers. Gauke and Stewart have talked a good talk about cutting short sentences, but done nothing. If the number of sentences under 6 months were halved, that would cut numbers by only a couple of thousand. On current projections, we need more capacity by the early 2020s. That suggests that 'new for old' will be impossible – we will need to keep some of the old prisons going to meet demand. But if the old prisons in reality cannot be closed, then where are the operating costs for new prisons to be found from? So, my guess is the Treasury will want its pound of flesh and any savings from ‘new for old’ will go to offset the MoJ's frighteningly huge operating deficit and to keep existing prisons going. Making the race to the bottom the only game in town.
A further question, that I’ve raised before, is who will bid. SERCO and G4S are still (after 5 years!) under investigation by the SFO, leaving only one operator, Sodexo, as an acceptable bidder. The obvious source of new bidders is the privatised probation service, in particular MTC, who operate prisons in the United States, and Interserve, who build and service prisons here. Both companies have been marched up and down this hill previously, but may reckon that their CRC experience, which means they are used to dealing with offenders in the UK, justifies the triumph of hope over experience, especially with £5bn or so of contracts potentially on offer. What is their track record? Privatised probation has been a failure: its contract has been terminated early, its performance has been much poorer than the public sector, innovation has, says the chief inspector, been marginal and some of it downright harmful. MTCs record in America is not terribly attractive; private prisons generally in the US have not been as much a success as here, and there is the nagging worry that American methods of running prisons are nothing like ours (The Shawshank Redemption v Porridge, if you will). And Interserve have been teetering for some months on the verge of becoming the next Carillion – and a hefty Brexit-driven recession could well tip them over. So, it’s not clear where Stewart’s transformative effect will come from.
Prison operators, existing and new, are therefore being offered the prospect of running huge new jails, that will be perpetually overcrowded and near the limits of control and decency, with the sort of blowback on reputation that G4S has suffered, and on tighter than ever margins. Some offer! Still, a pipeline with a value of maybe £5bn will get very serious attention. And companies looking for public service outsourcing contracts can’t pick and choose – they are stuck with government, as customer, for better or worse. So bidders will come forward, smelling the big money in an increasingly bleak world.
I am just not sure that it’ll do much good – I mean, deliver any real public benefit, which is the only justification for outsourcing. When most prisons were doing OK, the threat of competition helped keep them that way. But when both sectors struggle, in a system so badly damaged by deep cuts in funding, but none in prisoner numbers, and in much worse shape now than for the past several decades, does competition promise any more than a choice of operators who can barely cope?
(1) “Improving prison and probation: public value partnerships” Home Office 2006
(2) “Capacity and competition policy for prisons and probation” MoJ 2009
The excellent Liz Saville-Roberts, Plaid Cymru MP for Dwyfor Meirionnydd – she is Plaid spokesperson for Home Affairs, Justice, Business, Energy, Industrial Strategy, Women and Equalities (what does she do on Tuesdays mornings, I wonder?) - has been pursuing inquiries about prison staffing. She seems to be one of those MPs who likes getting her teeth well into a subject and worrying away at it. Too few of those, nowadays.
She has been making a nuisance of herself in a series of Parliamentary Questions asking why the MoJ won’t regularly publish the staffing figures for privately run prisons, as they do for publicly run ones. The MoJ’s reply amounts to, ‘we don’t publish them because we don’t collect them, so it would be a change. And we don’t want to do it’.
In point of fact, the MoJ and before them, the Home Office, have justified non-disclosure before on various grounds. For many years, the main argument was commercial confidentiality: the number of staff used by a contractor was a commercial secret, and disclosure would give unfair advantage to other bidders in future. That argument fell away because Government did disclose figures in some PQs, probably forgetting that it had previously argued this were important commercial secrets. [The era when government Departments were obsessed by precedent is a distant one – nowadays, they can hardly remember last week.] So, the commercial secrecy argument no longer applies.
The argument now seems to be: we don’t set staffing levels in contracts, because that would undermine the flexibility of contractors to use staff as they want: anyway, we hold operators to account on performance, not inputs. And we don’t want to ask contractors to supply information to us that isn’t specified in the contract.
The case that the public should know the staffing levels in privately run prisons is overwhelming, and has been made in Government reports by such dangerous radicals as Lord (Pat) Carter. It is that competition entails a risk of a race to the bottom: we* know that in the past, such competitive pressure has, indeed, driven staffing levels too low on occasion (as I document in my book); we* likewise know that cutting staffing levels too low in the public sector has been the main cause of the appalling degradation of the prison system in the past decade. The staff: prisoner ratio is, therefore, one of the main predictors of unsafe prisons. As is the staff turnover rate: since high turnover means many staff are new and unconfident, also that many staff are terrified and stressed out, and choose to leave after not long in post. And new, unconfident, terrified staff make for unsafe prisons.
Therefore, the public have every right to know both the ratio of discipline staff (PCOs) to prisoners, and the turnover rate in those grades; and possibly in management grades also (admin staff, not so much).
The argument that none of this matters, because if staffing is too low, the prison will eventually fail against contract requirements, is no longer sustainable, after MoJ was taken by surprise by the collapse of Birmingham prison, in which very high turnover and high vacancy rates were a major causative factor. Besides, so many prisons, public or private, are operating, on the margins of safety nowadays, that to say, oh, we’ll find out later if staffing was too low, suggests callous indifference to human suffering and/or a desperate wish to conceal as long as possible the mess Government has made of a once-proud service. One might also add, that most contracts don’t in point of fact set performance requirements in such matters as the rate of self-harm or suicides. So the argument that the contract terms will pick up problems caused by low staffing simply doesn’t convince.
The real reason for non-disclosure is revealed by the MoJ reply:
As the Department does not currently collect workforce data from private prison providers, to publish these or require the provider to do so would require significant changes to the contracts of all private prison providers and we currently have no plans to do this.
i.e. - we can’t be bothered.
This won't do. Never mind the public - the MoJ ought to know what staffing ratios, and vacancy rates, are in private prisons, in order to know how safely they are being run. It's its job to know that, and take action accordingly. And if MoJ know, so should we.
As for the argument that this would be some huge, unnatural adminstrative burden - oh, please! This is information private operators know every week, every day. Sending it to MoJ once a month, in defined, standard terms, would be the least budnesome task imaginable.
The case that publishing this information is in the public interest is overwhelming. The MoJ should be shamed into doing so.
*‘we’ means, everyone who knows anything at all about prisons, except the Minister and his servants.
If people want to argue that privately run prisons are wrong, fine - but let them argue the case, and not merely assert it.
But too often, they assume that because they personally think the idea wrong in theory, it must be wrong in practice too - privately run prisons must fail, because they think they should. And here they part company with reality. And that I do not respect.
Among such ideologues are: Richard Burgon, Labour Justice spokesman; Alan Travis, the Guardian Home Affairs correspondent; and Frances Crook, chief executive of the Howard League (for over 30 years! - come on, trustees, wakey wakey!).
My book shows that over 25 years, neither sector has convincingly and consistently done better than the other, though quite clearly, the private sector has been cheaper. And since all public spending has an opportunity cost, that you might think that means the private sector has done better.
Here is the assessment of the (public sector) HM Prison and Probation Service Agency for prisons in 2017-18, based on an elaborate methology which includes asking prisoners what they think, via anonymised surveys.
Of course, where ideology collides with reality, ideology usually wins. So I am not expecting to change any minds. Or even open them.
But let the facts speak for themselves.
Some damned Tory Brexiter was saying the other day that it was high time we who oppose Brexit ‘come to terms’ with it, accept it as inevitable and ‘pull together’ for the country’s sake. Much as if I woke to found a majority in our household had decided to set fire to the curtains in our house, arguing that it would save on heating bills, I should accept their decision and smile benignly as they went about their senseless destruction. But I can’t bear to write more about that. Instead I shall give myself (and just possibly you) the pleasure of writing about two great films that are completely unavailable in this country, but which have recently come into my hands through rather roundabout routes.
One involves ‘coming to terms’, the other it’s opposite, for which there is no name. Now a certain person whose confidences I shall respect by calling him Felix, which happens to be the name of our son, says that if there is one thing he cannot abide, it’s film and novels about ‘coming to terms’. An odd aversion, since so many great films and novels are about just that – what else is ‘Gone with the wind’ or ‘It’s a wonderful life’ but ‘coming to terms’? But I think I know what he means, Felix, that is: a certain type of too-easy English resignation, acceptance of pointless failure, of life not properly lived: ‘Remains of the day’ or ‘Brief encounter’ type of thing.
The first of these films is about ‘coming to terms’ but in a far more positive, even joyous, way. It is ‘A ball at the Anjo’s house’ directed by Kōzaburō Yoshimura in 1947, at the start of the golden age of Japanese cinema. A high-born family is facing their own total defeat, in the wake of Japan’s defeat in war: they have lost their status, their titles, their money, the ancestral home, in short, their world. The father lost the house by credulously trusting to one of Japan’s new rich, who exploited the family name, tricked them into signing over the house and now disposes of them ruthlessly as no longer useful to him. His son hides his desperate sympathy for his father beneath a brittle veneer of world-weary cynicism, and dismisses the servant girl he has seduced with promises of marriage. One daughter, conscious of her rank, dismisses their former driver who adores her and who through hard work has made himself enough to offer to save the family home. The other daughter, played by the incomparable Setsuko Hara, is desperate to save her despairing father, who sharply rebuffs her plans.
(Hara specialised in such roles, notably in the films of Yasujirō Ozu, including ‘Tokyo story’ (1953), which ranks high on most lists of all-time great films. There was something of the father/daughter relationship between her and Ozu. On his death she never worked again and retired to a remote village where she died in 2015. Her roles, as the dutiful, self-sacrificing daughter, but happy in her self-sacrifice, don’t suit today’s feminists. But I know women like that, and they are not patsies or failures or weak, but amongst the best and strongest people I know. I don’t have a favourite actor, but I have a favourite actress: Setsuko Hara, who manages somehow to make every other actress seem a little…well, tawdry, somehow.)
The Anjos decide to hold one last ball in their home, just as they used to do, before losing it forever. Much goes wrong: their past is falling apart in front of their eyes. Yet Hara saves the day, averting her father’s suicide, and in an extraordinarily prolonged scene, almost without dialogue, bringing him, and the whole family, back to life, to love life again, to look forward to their uncertain place in the new Japan. She does it by dancing the tango with him. Wonderful, wonderful Setsuko Hara.
The second film, 'Sunday's children', is a sort of negative to that story: the erasure of a reconciliation, of kindness that was contained in the past. The script was by Ingmar Bergman and is about a Sunday in the household of his (thinly disguised) family household in rural Sweden in the 1900s, when Ingmar was 8 and his father a priest. The outwardly happy, boisterous household conceals a failing marriage and a harsh, sometimes physically brutal relationship between Bergman pere and Ingmar fils, extraordinarily played by Henrik Innros. In a flashforward, we briefly see both in 30 or 40 years’ time – the father is dying, the son visits him, they resume their lifetime’s quarrel bitterly, no coming to terms here. Yet in the present moment, that Sunday all those years ago, we see the two take a trip to a neighbouring parish, and on the way back taking refuge from a thunderstorm: and there is a time of simple happiness and love between them. I find that so moving: the idea of the moment of true happiness, forgotten later, inaccessible to the grown man, but always there, always real.
It adds to the pleasure of this film that it was written by Ingmar Bergman but directed by his son Daniel. Ingmar was notoriously not a good father to his many children from different wives, but he seems to have had some sort of relationship with Daniel, who learned his craft from watching his dad. And it is beautifully filmed, the cinematography like but not like his dad's films. Daniel soon abandoned cinema and became a paramedic working in ambulances, where he reasoned he did more good than by making films. As even my friend John Ellis, capo di capi of media professors, might agree. (Not that there is anything criminal about John, though he would make an excellently calm and shrewd capo di capi, more Godfather than Soprano, should the opportunity ever arise.)
I guess the reason I love these two films is that they show two eternal truths about us humans, which one becomes acutely aware of in old age: our need to tell us ourselves a story about our lives that tells us warts and all, it has a pattern and meaning, that yes, that bit ended and this bit started, but it all makes a kind of sense; and equally, that true meaning is as it were imprisoned on the moment, can only be known in that moment, cannot be overwritten by some larger meaning.
Plus, of course, neither film has anything to do with Brexit.
Best account I've read of exactly how a brave new all-signing, all-dancing new computer system can prove both a blessing and a curse. This is by a doctor, user/victim of a big new a system recently implemented in his healthcare group in the USA. At one and the same time, the system both saves users lots of time and consumes lots of their time, enables them to do so much more and makes it impossible to do their job properly, saves money and costs money.
It is particularly good on the work-arounds that users evolve in self-defence and how these may work, or make things worse. (In this case, a supposedly labour-saving computer system ends up causing each doctor to hire an assistant to use it – but it still probably a net benefit, even though some of the benefits are impossible to access, because of unintended side effects.)
To his credit, this is not a standard oh-god-what-idiot-designed-this! rant: it is more intelligent than that, conceding that it was right to change the status quo, and open to the idea that (some of) the nuisance he experiences might have been be necessary, even beneficial. This is a more helpful way to think about the benefits and disbenefits of computer projects than condemning systems as 'failures' for not having exactly the benefits that were promised.
And, maybe, not just computers.
Last week Rory Stewart, the prisons Minister, announced that operation of two new prisons, at Glen Parva and Wellingborough, will be offered to the private sector, with no in-house bid – though bids will be judged against a default a public sector benchmark, so public operation might still be a possible result. (They cannot be built using private finance, the Chancellor having formally abolished PFI in the Budget, though Stewart thinks private capital might yet find a role in the projected 'new for old' prisons deal, not yet agreed with Treasury. That sort of land swap is probably a better field for private capital - always assuming the customer is clued up enough not to be taken for an expensive ride.)
This will be welcome news to the private sector, given that it will be 8 years since the last competition started, and the last new build, Berwyn, was given to the public sector with no competition. But there are problems.
For a start, can the private sector still run prisons more cheaply than the State? The gap has much narrowed since MoJ savagely cut both staffing levels and pay in public sector prisons earlier this decade. While public sector pensions have also been cut, they are still much more generous than most defined benefit private schemes. But because the public scheme is unfunded, the true costs are unknowable, and can be magicked away through accountancy legerdemain. Besides, who cares about the deficit in 2050?
One can't answer that question by looking at the costs of existing prisons, because complex adjustments are needed to ensure fair comparison (and comparison is flatly impossible for privately run prisons built using PFI, as most are.) The best comparators are Berwyn and Oakwood, both big, new, Cat Cs – but comparison is complicated by the fact that Berwyn has been only slowly building up numbers. However, figures I have obtained indicate that when full, Berwyn's cost per prisoner could be in the region of 15-20% more expensive than Oakwood's.
But price is no longer the key: we are way past the point where the cheapest bid is the winner. Now, neither public nor private sector prisons are adequately funded, that is to say, for safe staffing levels – hence the chaotic violence that has overwhelmed so many prisons, in both sectors. So, a private sector bid that incorporated convincingly safe staffing levels might well be above the public benchmark. But if that were the case, how could the MoJ (running a structural deficit of about £1bn a year) give preferential funding to the private sector? Such is the dilemma of outsourcing in an age of austerity: unacceptably poor service, in a choice of two colours.
One also has to ask: who will bid? The MoJ foolishly allowed the market to consolidate from 4 operators down to just 3 in 2008 - of which 2, SERCO and G4S are still (after five years!) under investigation by the SFO, for over-charging on tagging contracts. Difficult, surely, for the MoJ to award a contract to a company that might be on trial for (or convicted of) fraud against it?
The MoJ no doubt thinks to bring in new operators. That has always been difficult. From the customers' perspective, a prison is about the riskiest service to contract for - so you look for companies that have some sort of record in managing offenders, or detention. They are few, and some are in America, where prisons are run very differently. And over the years, the Government has marched so many potential new operators – Reliance, MITIE, and GEO, amongst many others – up that particular hill and down again, before invariably awarding prison contracts to the three existing operators. Would any outsider have the appetite for another round, suspecting they are there just to make up the numbers?
And from the operators' perspective, just how appealing is a prison contract nowadays, anyway - with margins tighter than ever, and prisons more difficult and dangerous to run than ever, meaning huge commercial and reputational risk? Where it can be 8 years between opportunities - and many competitions are aborted mid-stream? For a customer which is institutionally incapable of planning more than couple of years ahead (spending plans never more than 3 years ahead, elections every 5 years or sooner, ministers changing every 18 months)? A customer whose last 3 big procurements - probation, FM, tagging - have all ended in very public failure? Where Treasury have not agreed funding of the 'new for old' programme, where private sector share of the system is already 18% and very unlikely to grow much, where the prison population and system can't rise much, because it simply can't be afforded? And with the market doomed if Labour get in – which may well happen even before these contracts are signed?
Would a potential new operator think this prospect worth the considerable investment – not much change from £1m - needed to mount a credible bid? In the past, I advised several companies to bid. If advising a board today, I'd say, look elsewhere for opportunities.
Indeed, it isn't even clear whether all the existing three operators would want to bid. G4S, in particular, has been badly bruised by repeated failures – at Birmingham prison, Medway Detention Centre, Brook House Immigration Removal Centre (for all that they run prisons at Altcourse and Rye Hill that are doing alright). It is possible that they have had enough.
What if the MoJ holds a party, but no one turns up?
Nice pictorial summary - in the recent devastating auditor's report on the chaotic mess that is MoJ - of the relative performance of the public sector probation service (NPS) and of privatised CRCs. To persist with this botched privatisation is perverse, wasteful, and against the public interest. So naturally, MoJ is doing just that.
The new Prison and Probation Ombusdman, Sue McAllister, began work this week.
The eagle-eyed Rob Allen has spotted an anomaly in this appointment: the Justice Secretary makes the appointment on the recommendation of the the Commons Justice Committee, which examines candidates in public to give assurance of some independent scrutiny. The Committee did examine McAllister, on 17 July. But it did not send a recommendation to the Secretary of State or, if it did, preferred to do so in secret – which negates the value of public scrutiny.
This may seem a bureaucratic nicety, but governance arrangements relating to appointments (and for that matter, dismissals) are there for a reason. The failure to follow them here is serious, implying a casual attitude by the Committee to its duties.
This is particularly so, as there a couple of serious question marks about McAllister's suitability.
First, she is hostile to the private sector, as a matter of ideology, as she to her credit candidly stated at the hearing: she thinks privately run prisons are plain wrong, and has condemned privatisation of probation. To my mind, this must cast doubt on the appointment. She will be arbitrating between prisoners/offenders and the private operating companies – which she thinks should not be in business at all. The Committee asked about this and were satisfied by her statement that despite her views, she would be at all time professional. Too easily satisfied, in my view. It is not, of course, a question about her integrity, but about the need for absolute impartiality to be demonstrated beyond doubt in such a role. I don't see how it can be, given her views.
Second, there is a general issue about appointing former governors (or probation managers) to such a role. Prisoners/offenders want to be assured that the post holder is completely neutral between them and the management – that is the whole point of the Ombudsman. I don't think that requirement is fully met if the post holder has spent her entire career in prison management. It can be argued that that experience is useful background to the job. But it must also raise the question whether the post holder can really be expected to see the issues entirely independently. Sometimes you need an outsider to take the robust view that what seems sensible, right and proper to prison governor isn't, in fact sensible, right and proper, to the general public.
It seems agreed that the Chief Inspector should not be an ex Governor: how is this post any different?
I have, let me say, no reason at all to question McAllister's capacity and skills. And it is a miserable thing to sound such doubts just as she starts work. Indeed: that is exactly why such issues should have been properly considered during the appointment process. Now is too late. Neither the MoJ nor the Justice Committee have done an adequate job here.
I fear there is no magic money tree for justice, so the only solution is to shrink the system: by Penelope Gibbs (reposted from LinkedIn)
A really excellent article by Penelope Gibbs on the breakdown of the courts system. So many people blog about prisons and probation, almost none about the equally serious disaster unfolding in our criminal courts. The analysis is stronger for being rooted so much in peoples' direct experience, and the prescription is unusual in offering genuinely new, genuinely practical solutions, not just shed loads of more money.
“Mags Ct today in chaos. 2 duty solicitors unable to cope because almost none of the 40+ defendants had own solicitors and all needed legal advice. There are consequences to reducing #legalaid scope and fees. Many cases adjourned to another day” @Halo_Lawyer
“Defendant appears at Mags Ct, but there’s no interpreter for him. Clerk says she won’t deal with him and will send him back to the Police Station. I query the lawfulness of this and am told this is what the regional court managers have said is to be done and it’s happened at other courts with no complaints. I point out that if they want to take that approach then I’ll expect to be quoted chapter + verse of legal basis for this – reply to that was, I’m the clerk, I don’t have to justify a decision” @neilsnds
“Two London Criminal defence firms I used to work for are about two months from going under due to the large number of people being released under investigation and due to the LAA making it a war of attrition to get PPE [pages of prosecution evidence] paid on any large Crown Court cases” @escobills
“The prison declined to bring the defendant to court because … they have spelled his name wrong on their paperwork. As we are asking for him by his actual name, it does not tally with their records. The fact that the Prison Number is the same is, it would seem, irrelevant” @ClonchFlud
“Trial adjournment application this morning in the mags. Schedule of unused [evidence] only served 2 days ago. Need to serve a defence statement. Court clerk had to be ‘guided’ to the view that this is an entitlement. Concerning” @Peter_L_Jones
“Another call today from Court to confirm tomorrow’s trial is off due to a lack of judicial/courtroom availability.3rd hearing in 2 months that I’ve had vacated the day before.Trying to explain that this is normal to clients & witnesses is never easy and it’ll only get worse” @SuffolkSolicita
“The ceiling in Court 7 at York House, Feltham, immigration tribunal fell down yesterday. All cases for that day adjourned. Cases for today supposed to be in Court 7 “floated” and then “floated out” [cancelled] at 3pm” @englishchick
“Currently prosecuting a trial with judge whose only concern is finishing so he can go on holiday next week. Outcome of every application contingent upon time it will take. We are now sitting at 09.30 every day He’s said he’ll discharge jury if we don’t finish on Friday” @F_E_Smith
“One of the biggest lessons this year has been this: Enforced speed is the enemy of justice. Dealing in bulk and getting punters in and out quickly sounds great.. but I think the public would feel safer and more confident if we were given time to read and consider” @CriminalPupil
These are just a few of the tweets I’ve seen in the last few days indicating that the courts system is coming apart at the seams. And if you search #thelawisbroken on twitter you will see hundreds more tales of lifts not working and cases adjourned. Last week I sat on a panel (organised by the South-Eastern Circuit of barristers) with Susan Acland-Hood, Chief Executive of the courts service. Around 30 lawyers chose to spend their evening giving their views on court reform, but inevitably the conversation dwelt on the kind of problems described above. I have seldom seen lawyers so frustrated and angry. Poor Susan was patient and courteous in responding, but I think even she was slightly shell-shocked by the palpable unhappiness. And by the scale of the problems – from court closures to administrative failure, from video links which don’t work to cancelled sittings.
Unfortunately I don’t think digital court reform will take us to new sunny uplands of effective courts. And before any of the reforms kick in, there is chaos to be sorted out. The only “saving grace” is that the police are investigating and the CPS prosecuting fewer crimes. So the workload in the courts is reducing. But diminished police resources means some crimes are not investigated properly, and disclosure is bungled.
The wise words of @criminalpupil that enforced speed is the enemy of justice I think provides part of the answer. There is no magic money tree for justice. There should be, but health, education and social care will always get priority when there is any money to spare. The only way of giving all court cases the time they deserve and getting enough money for the courts is to shrink the criminal justice system. Lets decriminalise lots of minor offences like possession of cannabis and non-payment of a TV licence. Lets divert a lot of low level cases away from court via out of court disposals, deferred prosecution and well facilitated restorative justice. Lets reduce the number of remand hearings by remanding fewer defendants. Lets have a moratorium on the creation of any new offences. If we shrunk the system, we might have some chance of paying lawyers a fair wage for their work, and of giving the cases in the courts the time they deserve – which would mean not delaying them because of a shortage of judges, nor rushing them through when they are actually heard.
Pie in the sky you think, but actually we have a home-grown case study. In England and Wales, we have shrunk the youth justice system considerably. There are fewer prosecutions, fewer first time entrants and fewer getting any kind of formal criminal justice disposal than ten years ago, and the child custody population has shrunk by two-thirds. Despite the recent media coverage of serious youth violence, there is no evidence that the shrinking of the system has led to an increase in youth crime (the number of proven offences has fallen by 75% in ten years). Overall the shrinking of the youth justice system has led to fewer children being criminalised and to the remaining money going further. I would shrink the system even more through raising the age of criminal responsibility and raising the prosecution threshold, but I feel the shrinkage so far has been positive. And it has, for the most part. been tolerated by politicians and the public. So lets try shrinking the adult system so the money available might possibly be sufficient.
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.
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