Grayling, Grotius and the Howard League

 Earlier this month, Justice Secretary Chris Grayling told charities that they did far too much campaigning and should instead concentrate on delivering services to the needy.  In a wonderful riposte to his authoritarian bluster, the Howard League has managed to mobilise the entire literary establishment against the petty restrictions on prisoners’ contact with the outside world which he introduced at the end of last year. It’s an exemplary campaign- an unarguable message (even the most punitive baulk at banning books), disseminated via social media and backed by anything but the usual suspects.

Grayling may feel unfairly done by in the media coverage but the fact that there is no specific prohibition on books but rather on all parcels makes the impact worse not better. His argument that parcels cannot be checked for contraband is feeble -it’s done for pre-trial prisoners, why not for the sentenced? His claims that reading needs are met by libraries are dishonest. The three most recent Inspection reports have found insufficient easy read materials at Kirkham, very low use of the library at Liverpool, and limited access at Belmarsh.

His harsher system of incentives was trailed in the Daily Mail last year as the introduction of Spartan prisons. Since the Spartans believed in feeding their young men so they had a taste of not having enough, Grayling will no doubt have been pleased that according to today’s Inspection report, prisoners at Liverpool complained about the inadequate size of food portions. While Jonathan Aitken may think that Grayling is actually progressive and that tougher prisons are the price he has to pay to get hard-line backbenchers to support his rehabilitation revolution, there is more than enough evidence of his illiberal world view. His wish to restrict judicial review because it undermines parliament and to defy the jurisdiction of the European Court of Human rights are two examples. What would Hugo Grotius have made of him? After all the founder of international law escaped from prison in a chest that brought his books in.

Fortunately there are many who don’t share Grayling’s ideology, preferring the view that people go to prison as a punishment not for a punishment.  Whether or not the Howard League force Grayling to amend his small minded privileges scheme, they have succeeded in bringing to light some of the hidden realities of life behind bars. It goes to show that charities should do more campaigning not less.

What the Public Accounts Committee should ask about Transforming Rehabilitation

This week feels like the denouement of the Government’s reform of the Probation system in England and Wales.  This morning Chris Grayling addressed Policy Exchange on the wider question of Privatising Justice. This afternoon the Lords considered the Offender Rehabilitation Bill which needs to enter into force before short term prisoners can be supervised on release. Tomorrow the Public Accounts Committee will question Ministry of Justice officials about a rather weak NAO landscape review of the Probation service.  The three events give us an idea about whether the Government will change course themselves or might be pressured to do so for political or administrative reasons. 

Justice Secretary Chris Grayling certainly showed no sign of any "policy exchange". He seemed discomforted maybe twice, once when he revealed he did not know the extent of a private company’s liability if one of their prisons was burned to the ground – he’d have to check with his contracts people.  He also saw no paradox in the fact of private companies proving successful in the rehabilitation world if they shrink rather than grow their market.  He thought they would be in demand overseas- a successful work programme provider apparently now plies its trade with the government of Saudi Arabia.  Otherwise he assured his audience that privatisation was not a dogma; he had after all scaled back on the proposed outsourcing of prisons. Bringing in new providers was not about profits to shareholders but about innovation and private sector management skills.

In the same breath, he told us that nothing much would change. The rehabilitation revolution was, after all, an evolution. Grayling has no truck with those who say payment by results is untried and untested- it’s no more than performance related pay. As for private providers, he could not say as much as he’d like about G4S and SERCO because they might yet be prosecuted. But no private company would henceforth be able to play fast and loose with government contracts which had been subject to a root and branch review.

Grayling assured his audience that failures in the management of contracts go back many years and were in fact picked up by his new broom. He was not asked why tagging company Buddi found their relationship with his department so “unproductive and frustrating” that they withdrew from their contract nor had what lessons been learned from the Ministry’s failures in respect of the Court Interpreter contracting during the coalition government.

Unproductive and frustrating might well describe the relationship between parliament and the ministry during the last twelve months, with requests for more information about costs and risks repeatedly denied to legislators. The House of Lords seems to have fired its last shot in the battle for more transparency. With this afternoon’s narrow defeat of their attempt to subject the probation changes to greater parliamentary scrutiny, responsibility for extracting more details about the plans moves to Mrs Hodge and her colleagues on the Public Accounts Committee.

There are three basic questions areas that the PAC should probe if they are to fulfil their obligation to test the economy, effectiveness and efficiency of the changes.

On economy the simple question is whether the government plans are affordable. Grayling may say that contracts will be let on quality not price but in order to supervise 50,000 more offenders with the same resources, something has to give. His own strategy says that “from previous competitions for Offender Management services, we have seen evidence of the potential to generate efficiency savings, which allows us to invest in support for short sentenced offenders and those who need it most. The private sector is driving savings within the CJS.” The permanent secretary needs to tell the PAC for example whether the  estimated £25m saving on the Community Payback bill in London after SERCO took over in October 2012 is still valid- presumably not since the contract is being terminated early. The NAO should also press on the costs and performance of HMP Oakwood – allegedly operating at half the annual cost per prisoner place of comparable prisons.  The MoJ see this is an example of how the private sector can cut costs. But performance so far has been very poor. Is this a genuine or responsible benchmark for costings in criminal justice and if not what is?

On effectiveness, the key questions relate to the manageability of the new arrangements. How and with what resources, are the Ministry going to ensure that contracts are delivered properly? And how will the Department make sure that that the crucial operational interfaces are properly managed between the public Probation service on the one hand and the Rehabilitation Companies on the other and between the Companies and the range of other relevant agencies. The NAO last week published a separate report on criminal justice which found that governance and management arrangements are complex and that delivery partners “need to be working well together at national and local level, focusing on how best to achieve the overall objectives of the criminal justice system, rather than optimising the performance of their own organisations.” In probation, arrangements are about to get a whole lot more complex and the PAC should want to know how they will work.

The third focus of the PAC is efficiency. The NAO criminal justice report found that “changes to one part of the system can have unexpected consequences for others”.  The PAC should ask about unintended consequences of the Transforming Rehabilitation changes. Grayling told Policy Exchange that if he were running a CRC he’d want to set up a housing operation. He’s right of course that prisoners need a place to live but do we really want to develop offender specific services that could inadvertently reinforce rather than diminish their social exclusion. Is there not a risk that mainstream services will see an opportunity to wash their hands of offenders safe in the knowledge that their needs are to be looked after by these new private agencies? 

On the sharing of good practice, the PAC will want to know how the Ministry will develop a contracting regime that encourages encourage providers to share what works when there is a commercial advantage not to do so.

When Grayling first announced his changes, he was reported to have said that you don’t pilot a revolution.   By contrast, his junior minister told the Sunday Mirror at the weekend that the government has  always been clear that the changes “will be rolled out in a controlled way, with robust testing at every stage”.  Although they are interrogating officials rather than ministers, the PAC has the right to press them hard about the results from of this alleged testing so far  and the plans for the future . In fact they have the duty to do so.

One Last Chance Saloon for Probation ?

 Next week the Offender Rehabilitation Bill returns to the House of Lords, where the upper House has a last chance to disrupt the Government’s plans to dismantle and privatise the bulk of the Probation service.  But the parliamentary ping pong will almost certainly end one way. The Government will say that the unelected chamber cannot frustrate a measure contained in the Coalition agreement which promised to introduce a rehabilitation revolution paying independent providers to reduce re-offending. There may be debate about whether, in constitutional terms, an item in the Coalition agreement is the same trump card as a manifesto commitment; or whether the item necessarily requires the destruction of probation in the way that’s proposed. But notwithstanding the severe doubts raised about the rationale for, and practicability of, the proposed changes, the Government will most likely get their way.  

Unless that is, the Ministry of Justice decide that slowing down what many see as a headlong rush to disaster, might after all be the wiser course. Yesterday’s  decision by the technology company Buddi to pull out of the electronic monitoring contract it won last year, should start enough alarm bells ringing in Whitehall or Westminster to haul the Ministry of Justice  back from the brink.

By coincidence, the National Audit Office yesterday published a landscape review looking in part at the plans for Probation. Most of the report’s material about the future outlines specific administrative challenges related to the winding up of Probation Trusts (such as who will do the books). But it also  lists generic risks inherent in a programme of this scale and complexity.

Presumably through concern about overstepping their remit rather than sloth, the NAO makes no effort , however, to assess how well these risks are in fact likely to be managed by the MOJ in this specific programme. The Ministry, they say, will need “to identify and retain, and if necessary, develop or acquire, knowledge of the service area being commissioned, as well as commissioning skills themselves.”   Surely the NAO should offer an assessment of the MoJ’s commissioning capabilities? Evidence from the court interpreting contract where according to the Public Accounts Committee  "almost everything that could go wrong did go wrong", and from the commissioning of the new electronic monitoring services, is hardly reassuring. 

The NAO say that once services are commissioned,  the MoJ will require contract management skills that are "a scarce resource", suggesting that “recent difficulties in the management of existing tagging contracts provide useful learning”. Strangely, they do not specify what the learning is- perhaps it’s that private companies can run rings around government officials for years. Finally the report talks about managing the risk of market and supplier failure, again without saying if the MoJ has put proper contingencies in place.

It is not only the critics of the policy who have expressed concern about the manageability and timescale of the plans and frustration that the Government have not shared key information about costs and risks. It is not easy for any Government to expose the state of its most complex and high risk projects. But this Government pledged to do so, setting up the Major Projects Authority (MPA) to provide “unprecedented transparency” to “help prevent problems being hidden and left to spiral out of control.”

Sadly it seems, the MPA along with the rest of Westminster and Whitehall’s machinery has so far totally failed to scrutinise the proliferation of fiascos to have emerged from the Ministry of Justice.    If there is a question of the outsourcing of probation joining that list, the Government  should call a halt to it next week. 

Do we really need yet another Crime Bill?

At yesterday’s hearing of the Justice Select Committee, the question of the climate of opinion on crime came up. I hazarded a view that public were much less concerned about crime than at times in the past and this provided an opportunity for constructive policymaking. It turned out I was right on the first point. I checked MORI’s polls to find that about one in seven think crime is the most important issue facing the country less than half the proportion who did so twenty years ago  before crime started to drop.

Today’s publication of the Criminal Justice and Courts Bill shows I was sadly wrong on the second point. Any opportunity for a progressive turn in penal policy has been spurned by a ragbag of proposals which would restrict diversion from prosecution, toughen sentences for a selection of the most serious offenders   and make adult offenders pay for the costs of the court hearings which convict them. (It might have been worse. The Dutch Justice Minister is legislating for prisoners to pay for the costs of their jail time.)

There are some uncontroversial and welcome elements in the Bill , but there is a serious question about whether the proposals as a whole require yet another law and order statute before the last one has been enacted.  The Coalition partners used to mock Labour’s legislative hyperactivity in this area but have been unable to resist it themselves.

Chris Grayling is at least open about what he is doing- it’s so that “the law abiding majority know that we are making  ... changes”. Whether they are likely to be effective or even practical seems of less relevance despite his ludicrous assertion that these are the measures needed to keep us all safe.

His intentions are not quite so open about the secure colleges which will allegedly put education at the heart of youth custody.  They almost certainly mark the death knell of secure children’s homes- the small local units which provide high quality but expensive care for the most troubled young people. But we know almost nothing about these proposed new institutions other than that they’ll be larger and cheaper than what they replace. Defining institutions as educational is no guarantee of desirability let alone success as Approved Schools and Community Homes with Education proved in years gone by.

The questionable rationale for several of the measures and the uncertainty about their impact and costs suggest the bill should at the very least been published in draft and subjected to pre –legislative scrutiny. Judging by the rational and evidence based approach they showed in yesterday’s hearing, the Justice Committee would probably have made mincemeat of much of it.

 

Follow the Money: Changing how we pay for Prison could reduce its Unnecessary Use.

The 85,000 prisoners in England and Wales is pretty much at the same level as when the Coalition came to power almost four years ago. Projections published last week contained the welcome news that numbers could fall over the next five years – but even the most optimistic scenario – 77,300 in 2019 would represent an increase of more than 60% in 25 years. Apart from the social and ethical costs of locking up so many more fellow citizens, the last ten years has seen the financial spend on prison rose from £2 to £3 billion. With almost half of prisoners re-convicted within a year of release, something new is needed beyond the much vaunted "rehabilitation revolution".

In a new report published today by Transform Justice , I argue that structural change is needed in how we pay for prison if we are to achieve radical reductions in its use  and the development of more humane and effective alternatives.

Four years ago the House of Commons Justice Committee published an impressive blue print for Justice Reinvestment,  containing a range of measures to shift funds away from prison into locally based measures to prevent and respond to crime. Despite widespread rhetorical support for the idea, progress on concrete implementation of its key proposals has been somewhat fitful.

In youth justice, pilots have shown that financial incentives can stimulate local measures to reduce the numbers of under 18’s in custody; and making local authorities pay for under 18’s in pre-trial detention since last April seems to have made them work harder to use less costly alternatives.

On the adult side, pilot programmes have rewarded agencies which work together locally to reduce demand for prison places- but the payments made to them have only represented a small proportion of the costs which have been saved. Local reductions in prison numbers do not allow the national prison service to reduce its costs in like for like fashion.

What’s needed is a more thoroughgoing devolution to local level of the budgets which pay for prisons to create a greater incentive to fund new approaches.  If local government were responsible for meeting the costs of Detention and Training Orders for young offenders under 18 as well as for remands, they could over time create alternative community based, semi secure and secure options that could take the place of prison altogether. For adults, new machinery would be needed to oversee a devolved system - local authorities, Policing and Crime Commissioners and the NHS working together to commission the services most likely to reduce crime and re-offending; in London the Mayor's office could take the lead. 

As a first step, the custodial budget covering adult remands, young adults aged 18-21 and women offenders should be considered for devolution to these new regional bodies, but in the longer term they could assume responsibility for commissioning all prison places and the range of community based supervision programmes that would increasingly replace them.  The devolved custodial budget could be used not only to respond to the demands of the courts but to shape those demands ; by commissioning a wide range of custodial, semi custodial and community based measures which would meet the needs of suspects and offenders in their localities, reduce re-offending and prevent crime. The services and facilities funded through JR should be developed in consultation with the communities most affected by crime  where possible enabling disputes to be resolved through restorative measures and  suitable candidates to be diverted into health and social care.

Justice Secretary Chris Grayling has talked of making the prison system not smaller but cheaper. Justice Reinvestment  could make it both smaller and cheaper – smaller by incentivising reductions in the use of imprisonment and cheaper, not by the irresponsible cutting of costs but  by sharing them more broadly among the agencies with an interest in reducing re-offending. Far from being an empty slogan, Justice Reinvestment can provide sustainable future for penal policy.

Seven Days in Tamimi

While Tamimi may conjure up images of a pacific island paradise, the bleaker reality is one of two United Nations compounds in the heart of Baghdad’s Green or International Zone (IZ). It is home to more than a hundred staff from the UN mission in Iraq (UNAMI) plus burgeoning numbers from an alphabet soup of international agencies. Members of the multinational teams whether working to inoculate children against disease, to settle and feed people fleeing from Syria and Anbar province, or to strengthen Iraq’s fragile system of governance, stay in pre fab containers alongside the security staff who protect them and the contingent of Fijian soldiers who guard the compound. Some of the staff have been there years, (with monthly breaks), others like me come for a few days for specific assignments.

Within hours of arriving, not so distant booms were followed by a loudspeaker instruction to stay indoors until further notice. An email reported an ongoing wave of explosions in the Baghdad area, small arms fire and movement of security forces. It was left to CNN to break the news that one of the targets was a juvenile detention centre with two guards killed and more than twenty escapes.

The attack cast a shadow over our planned visit to Rusafa prison, intended to form part of a five day training workshop organised for the Iraqi Correctional Service . Prisons have been targeted by Al-Qaeda across the region since last summer. While the Rusafa prisons are in the highly fortified perimeter of the Ministry of Interior, crucially they are in the Red Zone- a short drive but a world away from the eerily empty IZ , the  ghost town that is home to the international community of diplomats, aid workers and contractors , but it seems scarcely anyone else.

Venturing into the Red Zone requires close protection officers and an armed convoy and with limited resources support for missions has to be rationed. VIP visits and a long range mission meant our visit could not be supported until well after the workshop had finished.

Difficulties of international staff getting out of the IZ is matched by the problems Iraqis face in getting in. The stringent security meant the fourteen participants in our workshop could not arrive before 9.15 a.m. and had to leave by 2p.m. Bussed in and out of the IZ and checked numerous times, they reached the workshop venue not a little dazed and perhaps embarrassed by being on the receiving end of procedures they are more used to applying to others. Disappointed by the UN’s inability to authorise our visit to one of their prisons, the ICS staff none the less worked hard in the classroom at developing plans to bring their institutions into line with international standards. UNAMI’s human rights monitors may be able to check whether plans become reality, but their visits to prisons, like all missions into the Red Zone are severely restricted both in terms of time and place.

The technical limitations on UN activities are coupled with a political reluctance to embrace international norms. On the first day of our workshop, 26 death sentence prisoners were hanged - just a week after Ban Ki Moon had urged the country to suspend executions during his visit to Baghdad.

While security restrictions may frustrate the ability of agencies to do their work, they also shape everyday life at Tamimi and in the IZ. There is a curfew for staff and walking and cycling in the IZ  is prohibited at any time of day.  The UN’s Security Chief, visiting while we were in Baghdad, was told about the inhibiting impact of the regimen,  but given that the UN’s measures  are considerably less stringent than those operated by some other embassies, the deaths of UN staff in Kabul last weekend  and the upcoming elections,  any relaxation seems unlikely.

With a curious symmetry, on my last night  , the tannoy again instructed us to stay indoors,  this time to avoid some celebratory shooting – not it seems marking the successful end of the workshop but of a football match. Shortly after the all clear, staff descended on the bar where mysteriously free drinks were on offer. This came as a surprise to the visiting Security Chief next to me at the bar but was none the less a welcome one to everyone else. 

A Secure College misses the chance for really radical Youth Justice Reform

What is it that lies behind the desire of every generation of Tory politicians to invent new forms of institutions for juvenile delinquents? Sometimes it's political calculation; in the 80's, Willie Whitelaw needed short sharp shock detention centres as a tough counter weight to his controversial early release scheme for adult prisoners.  For others, it’s a genuine if misguided belief in the effectiveness of closed establishments. Kenneth Clarke arrived at the Home Office in 1992 with plans to revive approved schools to set straight the unruly youths who, the Chief Constable of Nottinghamshire told him, were responsible for most of the area’s offending. These morphed into Michael Howard’s Secure Training Centres which would take persistent young offenders off the streets as part of his 27 point plan to address “the tidal wave of crime”. But with crime nowadays much lower down the list of public concerns and with   huge financial pressures facing his department, what‘s driving Chris Grayling’s proposal for a new secure college?

Almost certainly his plans for the 320 bed “fortified school” in Leicestershire and enhanced educational provision in the Prison service Young Offender Institutions (YOI’s) spell the end of the road for secure children’s homes (SCH’s). These small, mainly local authority run facilities provide very good quality care for highly troubled children but at considerable cost.  That their role for young offenders is to be wholly or partly phased out is suggested by the admission that while the new Secure College will serve young offenders from the Midlands and the East of England, “offenders from other areas could also be taken”.

Grayling’s overall approach is to make the penal system cheaper not smaller so it’s perhaps no surprise that the SCH places costing more than £200,000 per year have caught his attention.  SCH’s are unlikely to have crossed his radar previously because by and large they work well with a vulnerable and volatile population. Whatever the rhetoric about combining security with an increased educational focus,  a single large cheaply run facility is likely to be fraught with difficulty. Recent French experience with "Établissements pénitentiaires pour mineurs", run jointly by the prison service and social workers does not inspire confidence in such a hybrid model.

Improving access to education in the YOI’s is of course welcome but can that on its own solve the fundamental inappropriateness of prison settings for juveniles.. NOMS has reportedly recommended that for every 12 young people there should be one officer as the minimum staffing standard which means a reduction in some establishments.   The new ratio emerged from a staffing review prompted by the large and welcome fall in the number of under-18s in custody in recent years.  But with more and more young offenders managed in the community, those who are locked up are the most damaged and demanding young people, requiring more generous not more restricted staff numbers.  

Arguably, the falling juvenile custodial population has brought the MoJ the economies it needs and opens an opportunity for a much more radical overhaul of  youth justice than the one announced today.  

First, reshaping the Detention and Training Order so that very short periods of detention can be followed by a longer spell of training in the community could perhaps halve the number of custodial places currently required. It would better meet the requirement of the UN Convention on the Rights of the Child that “the arrest, detention or imprisonment of a child   shall be used only as a measure of last resort and for the shortest appropriate period of time”.

Second local government could be made responsible for meeting the costs of these orders. Devolving funds could stimulate the kind of creative alternative provision that over time would take the place of imprisonment. In this way prison custody could be phased out for 15 year olds perhaps within a year, 16 year olds within two, and 17 year olds within three. 

Finally,  Mr Grayling should be looking to shift responsibility away from his department. If he is serious about educating young offenders,  it’s a job for the Ministry of Education, not for him.