Richard Heaton explains MoJ'S failures

Richard Heaton, Permanent Secretary of the MoJ, appeared before the Public Accounts Committee on 29 June to give account for his Department’s failures on management and expansion of the prison estate, set out in a recent National Audit Office report.  The Chair and a member of the Justice Committee also attended, a useful innovation, since there is so much common interest.

Heaton was accompanied by the Chief Exec of HMPPS and the Deputy Director of Prison Maintenance and Change. He did not bring his FD, Mike Driver, surprisingly, since the talk was largely about money. [But perhaps someone had recalled that at a previous session, Driver told a gobsmacked Justice Committee “I would say that we have a very good financial management regime within the organisation.”  That would not have gone down well on this occasion.]

The hearing was never going to be easy.  Because what the NAO reported was that prisons remain dangerously overcrowded, with a big mismatch between the type and location of available and places needed, that the programme to create 10,000 new places by 2020 had created precisely 206 places, with not one new prison opened, that a ballooning budget deficit of near £1bn a year had meant available capital had to be switched to current,  that plans to close old prisons with poor conditions  had almost entirely failed, that MoJ had failed to keep pace with a rising backlog of essential maintenance, so that an increasing number of places had to be taken out of use while conditions in many prisons were appalling, and that contracting of FM had been an unmitigated disaster ending with the collapse of Carillion, and all this while prisons were less safe, less decent than they had been for many decades.

Now you might think that if that was the wicket you were going in to defend, you’d have sent hours and hours mastering the facts, preparing your response to the inevitable criticism and to shoulder responsibility for this avalanche of failures.

But not Richard Heaton.

In all my years as a civil servant, and my own appearances before the PAC and other Committees, I have never seen anything remotely like it. Heaton had not mastered quite basic facts, did not appear to feel that he personally had anything to answer for, did not seem to think that anything – including the Committee- mattered very much.

He was not, however, short on explanations for all these disasters. Turns out that it was either all someone else’s fault – impliedly, his immediate predecessor, Ursula Brennan's - or alternatively, the fiscal equivalent of the wrong sort of snow. Here is the complete list of his excuses:

1. The SR 2015 spending settlement was ‘undercooked’.   [What does that even mean? Is he thinking of ‘cooking the books’?] It was a bad settlement that reflected badly on the Department (before he joined it, natch) and HMT equally.
2. He arrived just too late to put it right [“I came in at the end of 2015”. But that’s not quite true, is it? Heaton took over in August 2015, handover starting in July. The SR outcome was announced in late November. ]
3. Forecast of receipts were ‘unrealistic’
4. Projected savings from legal aid budget were ‘unrealistic’
5. Savings from the contracting out of FM also ‘turned out’ to be, guess what, ‘unrealistic’ and someone managed the contract badly
6. FM and probation outsourcing were the first of their kind, so naturally they went wrong [FM has been one of the commonest things to outsource for decades. HMPS had outsourced FM in several prisons earlier in the 2010’s. Also, may I point out, in the early ‘90s,  prisons were among the very  first, and  by far the most tricky PFI contracts: those contracts still stand, 25 years later.]
7. ‘some’ of the MoJ’s big programmes turned out to have ‘over-ambitious and unrealistic spending or savings targets’
8. The prison population didn’t behave exactly as forecast [it never does]

 
“My predecessors landed me with this shit” plus “Fate was unkind to me”. Not me, Guv!
 
Heaton has obviously never heard the maxim that when things have gone really badly wrong, 10 excuses are 10 times less credible than 1. Or that the most powerful defence in the language is, “I’m sorry, I got it wrong”.
 
When Shabana Mahmood rightly pressed him to be a bit more precise about how the Department came to get so many things so wrong, Heaton replied: “Maybe we suffered from group think…maybe we were not rigorous enough, maybe our forecasting was not good enough, but without a historical exegesis…I do not think I can be more precise than that”. The mandarin equivalent of ‘whatev’. But I do believe him. I do accept that he is quite unable to be more precise.
 
For indeed Heaton is not a man for detail. How many places would the 4 new prisons just announced give? How many prisons hold women? Could MoJ do lease back of new prisons? How much had he got for Holloway? Don’t ask me. Why did you underspend on maintenance by £24m? The answer: “..we did not see the figure. We just cannot [inaudible] where the underspend was”. Don’t ask me, I’m only the Accounting Officer. If all his evidence had been inaudible, we might be better informed.
 
His language was striking. Heaton seemingly wishes to appear hip, relaxed, casual, none of that old-world Sir Humphrey stuff. In so doing, he seemed to me to signal a fundamental lack of seriousness and respect. The FM and probation contracts were ‘kind of doomed’. Oh, well, that’s really helpful. The 2019 budget “gave us the money we needed to keep the lights on” and “a good slug of capital” (Heaton the fiscal alcoholic. “Gimme anther slug, willya. And leave the bottle!”)
 
When it comes to the future – which Heaton much prefers talking about than all that dead old history, man – Heaton is as rhapsodic about the wonders to come as he is short on details, such as when, or at what cost, or what risk. The Justice Committee chair, pressing him, says ‘There’s no overarching strategy for dealing with any of these things, is there?’ Heaton replies that the Committee has had ‘the ingredients of a strategy’ and that “I hope you would not observe a lack of strategy if you were to revisit this, I say in 6 months” i.e. after I’ve escaped. Towards the end Heaton became quite the visionary: he hoped MoJ would carry on way beyond the 10,000 new places, building more and more prisons…glorious. (No sense at all of the fiscal, social indeed moral case for not having more and more prisoners. Or of the long experience that if you build more capacity, some politician will fill it up again, and then overfill it.)
 
Heaton has however given us more insight into the extraordinary catalogue of failures in MoJ in recent years than he thinks. An organisation headed by such a man, a man without the least concept of what leadership entails, a man so disdainful of detail, so unable to take personal responsibility, could never flourish. The MoJ rotted from the top down.
 
The story extends to two other serious failures.
 
As ever when someone fails in a job by so wide a margin, questions must be asked about those who appointed him – and who kept him in office when it was clear it was quite beyond him: Cabinet Secretaries Jeremy Heywood and Mark Sedwill. Why did Heywood appoint someone so unsuitable by reason of his experience – Heaton was a Government lawyer of no real management experience – and temperament, to a massively difficult management job, £8bn complex spend and a huge variety of services, employing 70, 000 or so staff right across the UK?
 
This is more than bad judgement in one case. The mandarinate have never really squared two completely different jobs at Permanent Secretary level: giving advice to Ministers (not that they seem to want it much, nowadays) and dealing with Parliament, media etc on the one hand, and managed huge, complex, costly public services under great stress. The Agency concept was an attempted solution: separate the two out. That worked well until MoJ brought all the corporate and support services, including procurement, back to the centre of MoJ, with on the whole, bad results. This matters: insiders tell me of crucial discussions  about funding andmanagement of prisons from which those with operational experience were excluded. And I know from my own time how necessary their input was when the going got tough.
 
Second, there is another failure here: the failure of the PAC and Justice Committees to do their jobs. As an interrogation of the chief of Department where financial control has broken down, where public services had been badly damaged, where contract after contract has gone bad, their sessions were laughably shallow. As I have noted before (1), this is partly this is the inevitable result of rushing through so many inquiries in a Session, and of interrogation by a Committee of members, each with their own personal interests and issues. It is also the case that so long as Committees only call those currently in post, and absolve their predecessors, it will be to easy to maintain, as Heaton did, that it was all the fault of those who came before, and that all he did was try to clear up the appalling mess they left, disgusting, isn’t it, some people! Committees should have power to call predecessors in post (but then they’d have to call Grayling, wouldn’t they?). It would have been interesting, for example, to hear Ursula Brennan's response.
 
And that exposes a delicate cultural issue too. The PAC has the reputation for being fearsomely tough and critical. And appearing before it is quite a challenge. But I’ve noticed again and again, how Committee members, especially chairs, seem to want to avoid too direct a challenge. I noted that in my book, regarding the misappropriation of £200m by SERCO/G4S (1). I note it again here. Here’s the chair to Heaton: “glad to hear you are so upbeat” and offering him “muted congratulations from the PAC” (for what!?). And then cutting off Mahmood, who seems one of the sharper minds on the Committee, in mid-sentence as she told Heaton that MoJ’s litany of failures were ‘inexplicable’: “I think, Ms Mahmood, this is also about, once a mistake is made, how long it takes to unpick it, which is a salutary lessons for Whitehall and Westminster indeed”.
 
“Whitehall and Westminster indeed”. Indeed. As I have often noted, for all the conflict that their can be between Ministers and top civil servants, there is also a profound and (for the laity) sinister congruence of interests. Neither are keen for awkward truths to get out, or to spend too much time analysing the fruits of their actions and decisions. That was surely the real burden of ‘Yes Minister’. It is the price we pay for not separating out Executive and Legislature. Not much less than afifth of MPs are the Government payroll - and maybe another fifth hope to be soon. The watchdog is self-neutering.
 
In talking of Heaton’s and the MoJ’s failure, I do not - of course - suggest that failing is in itself morally blameworthy. I am not Michael Howard. Anyone who thinks they’ve never failed is a dangerous fool. In my book, and since, I’ve made it clear that I made mistakes in my time. The question is, do you scrutinise your own record, do you own your failure, do you show remorse, do you put it right, do you learn. I don’t think, on this showing, that any of those things can really be said of Heaton.
 
Heaton will shortly, leaving almost every part of the justice system in a worse state than it has been in living memory. Likely he will be replaced by some creature of Cummings choosing. MoJ must be dreading his or her arrival. But then, could they really do any worse?

NOTE

(1) My book, ch. 5