The White Paper on prison reform

The White Paper, 'Prison safety and reform', published in November, contains some good and important things, but overall, it is a political document, intended to evade, not address, the central issues. 

Here are the two papers I put to the Justice Committee, one an overview, the other on organisational changes.

JUSTICE COMMITTEE INQUIRY INTO PRISON REFORM, SESSION 2016-17
 
FURTHER EVIDENCE SUBMITTED BY JULIAN LE VAY: COMMENT ON THE WHITE PAPER
 
Summary
 
The White Paper:

• contains some important, positive proposals
• but is wrong on the causes of the current crisis, and in seeing the Service's fundamental problem as excessive centralisation
• proposes management structures and relationships that are deeply flawed and unworkable, and repeat mistakes made by the Labour Government (see my submission on sub inquiry on governor empowerment etc.)
• makes some proposals for 'reform' which do not in reality amount to much change
• maintains an ominous silence on future the private sector, which needs to be resolved
• ignores the key challenge for long-term reform: sentencing

 
Analysis
 
1.         The White Paper ('WP', numbers refer to paragraphs) contains promising proposals, particularly:

• devolution to Governors (see separate submission to sub inquiry);
• restoring some of the staffing cuts (less than a quarter - it remains to be seen whether this is enough);
• measures to improve recruitment and retention and to support and develop staff;
• a far-reaching estate strategy, not only for reducing overcrowding, but tackling problems in the configuration of the estate and how it is used that have handicapped the service for many decades (though it is unclear about costs and reducing overcrowding).

 
2.         But the WP is fundamentally unsatisfactory, on seven counts.

1. First, its explanation of what caused the crisis, and indeed its nature, differs from everyone else's. Almost all commentators see as the main reason for the crisis the 27% cut in staffing since 2010, made worse by loss of so many experienced staff, and failure to recruit and to retain new staff.  All agree that other issues were important – especially the new psychoactive substances (NPSs). But these are not seen as the main causes. The WP is clear:  the cuts were not to blame:  'It was right' to cut staffing but ' the destabilising effect of changes in the environment such as...the new psychoactive substances...means that we must now reconsider staffing levels (177, my italics).  So, the cuts would have worked fine, had it not been for NPSs and 'changes in the environment'.  The extra 2,500 staff are presented not as restoring ill-advised cuts, but to implement the new dedicated officer system (185).  Comparison with Scotland is instructive: the Sc99ots did not cut staff: their prisons are not in crisis: Annex A.  Efforts to blame changes in the prison population verge on the disingenuous: Annex B.
2. Second, cuts apart, the WP sees much wrong about the present system that other observers, even if they agree that improvement is possible and desirable, do not see as a major problem, and certainly not a cause of the crisis.   For example, the WP talks of 'lack of clarity' 'blunting the teeth' of the Inspectorate (chapter 2 summary and 55), which is not focusing on whether prisons achieve their purpose (80), and needs 'sharpening' (81).  But it was the Inspectorate's reports, and particularly, its sophisticated measures of performance on safety and resettlement, which first alerted the public to the impending crisis years ago, a message then Ministers were at pains to reject – and a one ‘sharp' enough for them to decline to extend Nick Hardwick's appointment.  So it is unclear what the WP thinks is so 'blunted' about the Inspectorate. 
3. Third, the WP maintains that the Service is 'held back' and 'stifled' by over-centralised bureaucracy, though how this has happened is left unexplained (chapter 4 summary and 31). This is disingenuous.  Centralisation was the response (and an effective one) to two previous of crises: the anarchic, scandalous state of prisons in the 1990s (central control didn’t 'stifle' the Service then: it saved it), and Mr Grayling's demand for deep, rapid cuts in 2012 (when a fully ‘hands-off’ approach would have done even worse damage).  Large distributed service organisations often oscillate between centralisation and devolution.  I agree the time has come for more devolution. But the suggestion that current problems are linked in some way to the centralised model is false.
4. Fourth, in seeking a new operating model, the WP proposes a set of relationships between NOMS and Ministers, and between both and Governors, that are muddled, unworkable, and repeat mistakes made by the Labour Government (see my separate submission to the sub inquiry).
5. Fifth, many of the WP’s ‘reforms’ turn out to involve curiously little change - for the 'biggest overhaul in a generation'. Examples are the new statement of purpose, so little different from the various formulations since Woolf (chapter 5); the Inspectorate, where the key change many have argued for, appointment independent of the S of S, is not even mentioned; new performance measures, which turn out to be much like the old ones (see separate submission to the sub-inquiry); and a scheme for intervention in failing prisons which looks very like what happens now (80-82).
6. Sixth, the WP maintains the ominous silence on private sector prisons. Yet they comprise one fifth of the system and represent a 25-year-old experiment in doing exactly what the WP wants – reduced central control. The S of S may be foreseeing the imminent conclusion to the Serious Fraud Office's 3-year investigation of SERCO and G4S, and leaving open an option not to continue with competition.  But these contracts will remain for some years, and the way reform affects the private sector needs to be clarified.
7. Last, the elephant in the room: the doubling of numbers since the 1990s. The WP has nothing whatsoever to say about sentencing, or why offenders get sent to prison, or who gets sent there and for how long - so much for the purpose of prisons being clearer. The 'most far reaching prisons reforms of a generation’ comprehensively evade the key issue. (And there is a major capacity issue separate from sentencing - the 9,000 foreign nationals expensively housed in our jails, which surely needs tackling in the era of Brexit.)  The WP is not even entirely clear about building plans (Annex C).

 
Conclusion
 
There are good and important things in the WP.  But overall, it presents a wrong diagnosis, and a false prospectus for recovery.

Annex A:  comparison with the Scottish prison service

Notes: SPS and NOMS stats. Staffing data for publicly run prisons only. Difference is not due to absence of NPSs in Scotland: see “Understanding the patterns of use, motives, and harms of New Psychoactive Substances in Scotland” Scottish Government, November 2016.

Annex B:  misleading use of statistics
 
The WP is keen (172) to blame rising violence and self-harm since 2012 on changes in the makeup of the prison population. This passage is misleading in its use of evidence, in several respects:
 

1. it mixes together characteristics where there is comparative data to show a change over time (e g offence group); and characteristics known to be associated with violence (e.g. (anti-social attitudes and poor self-control) but for which no trend data is given, thus no way of knowing whether there has been a change and if so, in which direction; 
2. it comments on the increasing proportion of prisoners sentenced for crimes of violence against the person, sexual offences and drug offences between 1993 and today. But this is of course irrelevant, because between 1993 and 2010 prisons became safer, not less safe. What we are asking is, what has caused the deterioration since 2012.  So, why did the WP not use 2012 data? Because it doesn't support the argument: the proportion has not changed significantly since then.  So, the authors went back as far as they needed to demonstrate a change, even though it is not relevant to the period in question
3. it states that younger male prisoners are known to be more violent, but then doesn't show that this group has increased since 2012. Why not? Because it hasn't increased, rather reduced (18-20-year-old males in 2012, and today).

 
Annex C: Uncertainty about building plans 
 
The WP proposes:
 

1.             9 new prisons with 10, 000 'new' places

 

1.             5 community prisons for women

 

1.             closure of old prisons and replacement by modern prisons

 

1.              far reaching reconfiguration of the estate in longer term

 
 
There is a lack of clarity on key points:
 

1. The relationship between these 3 strands is unclear.  Do they overlap? Is the net increase in total capacity 10, 000 places plus 5 women's' prisons, or some lesser figure?
2. SR 2015 provided £1.3bn capital to build the 9 prisons but seemingly no running costs to operate them.  Will they be properly funded - and at what staffing levels? Or is this another efficiency squeeze?
3. The 5 new women' prisons are additional to the 9 new prisons announced – how will they be funded (capital and running costs?) How many extra places will they provide?
4. The closure programme will generate both capital receipts and running cost savings. These closures are required by the SR settlement to generate £80m a year savings. Will capital receipts be enough to buy replacement sites and build replacement prisons? Will the 'new for old' prisons be adequately funded, despite £80m savings, and to what staffing levels?
5. What is the estimated reduction in overcrowding from this programme, taking account of population projections?