Is Inspectorate up to the task of alerting Ministers to risks of Probation reforms?

 This morning, Justice Minister Simon Hughes defended the government’s probation reforms. He used three main arguments, all highly questionable.

First he claimed that Transforming Rehabilitation has been undertaken “deliberatively” and over an appropriate time scale. Yes there has been consultation but it is hard to see much evidence of how   debate has influenced the shape of the programme.  And the timescale has been widely criticised as too rushed, dictated by the need to sign the contracts ahead of the election. Even new providers are concerned about the pace. Only half-jokingly, a senior representative of one told me recently that there was only one thing more worrying than losing out in the bidding process and that was winning the contracts.

Hughes’s second contention was that the reforms had been piloted. This is a half- truth at best. Yes there has been piloting of post release supervision of short term prisoners which seems to have shown positive results. Payment by Results has been tested in a number of contexts.  But just as trying out new computer programmes is of limited relevance if you are planning to change the whole operating system, so there is a good deal of uncertainty about how the moving parts in the new probation machinery will actually mesh together. Yes that new system has been running for a few months; not before time, it looks as if a court of law will judge on the reasonableness of such a wholesale reorganisation given the risks that have been widely identified.

But perhaps Hughes most interesting point was that the independent inspector has alerted us to “no concerns that the system isn't moving across”. In fact the Chief Inspector of Probation wrote in his most recent annual report that “like all significant change programmes the transitional phase of Transforming Rehabilitation carries inevitable heightened risk.” But to be fair to Paul McDowell’s position, he recognises “the opportunity to innovate, to think afresh, and to make a significant impact on reoffending outcomes”. 

If Ministers are to look to the Chief Inspector to alert them to problems, it is obviously important that the office is structured to do that effectively, impartially and independently. In the case of HM Inspectorate of Prisons, the Chief Inspector is always appointed from outside the prison service to give that assurance. Moreover, the Prison Inspectorate website contains a register of interests for the Chief Inspector. On it, Nick Hardwick reports that he has a close relative who works for the Metropolitan Police service.

In the case of the Chief Inspector of Probation, there is no requirement that the post holder is drawn from outside the service which he or she inspects. Most have been former senior probation staff.  Paul is a former Chief Executive of NACRO, the charity which will henceforth play a major role in the probation landscape which he will inspect. NACRO (for whom incidentally I worked from 1989 to 2000) has been named as the preferred bidder in six Community Rehabilitation Company areas.

NACRO’s partner is Sodexo, whose deputy managing director is Janine McDowell, who is a close relative of Paul.  I have no reason at all to question the integrity of either Paul or Janine, whom I have met, like and respect as professionals. But I do think there is a potential for a perceived if not actual conflict of interest. It needs addressing at the very least by greater transparency and in future by recruiting Chief Inspectors from outside the world of  probation and community rehabilitation companies.  

Conference Calls : What the Parties had to say about Prisons

 As the conference season finally comes to an end, what have  the various parties said they have in store for the criminal justice and prison system? Most attention has been paid to Tory plans to limit the writ of the ECHR; no votes for prisoners, fewer hurdles to extradition and whole life sentences all feature in their  promised land freed from  the Human Rights Act and less fettered by Strasbourg judgements . So too do measures to reduce diversion from prosecution and extend honesty in sentencing (which will add at least 1000 to the prison population in the long run).

Chris Grayling’s speech also set out a more nuanced –some might say  contradictory- vision for the prison system; cheaper but with more work and education, less like a holiday camp but better able to meet mental health care needs, stricter but with improved resettlement and mentoring. But aside from the not inconsiderable matter of weakening human rights protections for prisoners, there was little new in the conservative platform and no prospect of relief for the ailing prison service or retreat from the sale of probation.

Not surprisingly, Grayling’s somewhat pollyannish view of the state of the prisons was criticised by his Labour shadow Sadiq Khan who cited the Chief Inspector’s picture of a system on the edge of collapse.  Labour plan a victims law, the revival of their unimplemented 2001 commitment to extend the role of the Youth Justice Board to 18-21’s, and, it seems, the devolution of youth custody budgets to local authorities to incentivise further falls in its use.  But with what looks like a firm pledge to scrap Police and Crime Commissioners, their preferred shape for local arrangements to govern criminal justice remain unclear, as do their intentions in respect of the soon to be privatised probation service.

It was left to two other parties to address the elephants in the penal policy room. As one might have hoped, Simon Hughes pointed out that the key problem is that we lock up too many people in the first place. He identified the need for alternative sanctions for those receiving short sentences, people who have drugs for personal use, the mentally ill who need treatment and for women.  A stronger advisory council on drugs and a new women's justice board were promised. Of course the Lib Dems record in the last four years has not achieved much along these lines as part of a government which has, as Grayling boasted, locked up more people, for longer, more cheaply. 

More surprising was the contribution of UKIP. They of course would move faster than anyone to get rid of the ECHR altogether and historically have taken a tough line on penal policy. Their 2010 manifesto promised to double prison capacity. Their Justice and Home Affairs lead Diane James told this year’s conference of the need for a full costed analysis of the prison system and, paradoxically, to learn lessons from abroad in reforming it. In their hands such an exercise would almost certainly be a disaster. For abroad they seem to have the USA in mind and their preference might well be for a wholly privatised system. But they do at least acknowledge the problems in prisons and the need for a comprehensive review.

Failing Prisons Are No Longer News

  On a busy day, another scathing prison inspection report hardly counts as news.  Serious assaults, frightened prisoners, restricted regimes, backlogs in assessments have become the norm.  Nick Hardwick’s finding that HMP Swaleside is failing in its central task as a training prison comes as little surprise.

Even if the catalogue of shortcomings is a sadly familiar one, today’s report has some startling features. Staff seem to have given up on mandatory drug testing so they have no accurate idea about the availability of narcotics inside the prison. Alcohol seems to be more widely available than in other jails. The regime in the dirty and ill equipped segregation unit is punitive and records are not properly kept about the use of force. ‘Special accommodation’,   (a small bare cell without furniture), is used much more often and for longer than at comparable prisons. Despite some good work opportunities, others are exceptionally mundane, and in the case of the rag-cutting workshop, stultifyingly boring.

What if any lessons can be learned from what’s happening on the Isle of Sheppey?  First as with all inspection reports these days, it is not at all clear if the recommendations made by the inspectors are actually accepted and if so acted on. Years ago reports were published with a response from the prisons minister, head of the prison service and the governor. That should be reintroduced in recognition of the fact that , as Inspectors concluded at  Swaleside , while  prisons can themselves address some of their shortcomings, they need  much more effective support from the centre.

The second lesson is that the centre – that is the prison service headquarters functions and the National Offender Management service (NOMS) needs much more in the way of external and expert oversight. The processes and initiatives by which NOMS has cut costs – “fair and sustainable”, “benchmarking”, “new ways of working” appear to have caused some serious unintended consequences.  For example, the Swaleside Independent Monitoring Board reported this year that too many staff were allowed voluntary redundancy during the year due to lack of forward planning by NOMS and as a result, a vast amount of irreplaceable experience was lost.

With so much of what happens in prisons a direct result of decisions made in Whitehall, the balance of informed scrutiny needs to be shifted so that the administrators are inspected as well as the prison staff.  It is true that the National Audit Office looked at the NOMS cost cutting plans last year but they reached an absurdly narrow conclusion that the strategy for the prison estate is the most coherent and comprehensive for many years, has quickly cut operating costs, and is a significant improvement in value for money on the approaches of the past. The Prison Inspectorate, currently limited to looking at prisons, should work much more closely with the NAO in the future.

Finally, there is a strong case for exempting prison budgets from the next round of cost cutting which the outgoing head of the civil service warned today may last five years.  Recent reports such as Swaleside show that establishments increasingly cannot do their job with resources available to them.  The prison system is becoming an institutional failure.

Going Dutch

  There is much to admire about the Norwegian penal system. Relatively few people are in prison, less than half per capita than in the UK.  Conditions are generally good, prisons small and in the case of the well-publicised Bastoy seemingly very comfortable. Staff are trained for three years and prisoners enjoy a resettlement guarantee which requires local welfare agencies to ensure they have a place to live, continuing health care and a work or training when they are released.

It comes as something of a surprise to learn that from next year, some Norwegian prisoners will be serving their sentences in the Netherlands. Renovation work in some of Norway’s 42 jails will bring down capacity from the 3,800 places currently available. With more than a thousand prisoners waiting in a queue to serve their sentence, ministers must have felt the need to make some emergency provision.

Prisoners serving their sentences in other states is common practice in the USA. Many of Hawaii’s prisoners are in a facility in the Arizona desert and in 2012 almost 10,000 of California’s prisoners were in out of state prisons. Former British Home Secretary David Blunkett describes in his memoirs how he looked at using space in Scotland and Northern Ireland when the prison system in England and Wales came under pressure in 2002. But the first and so far only example of one country renting an already staffed and equipped prison from another was in 2009 when the Dutch   government agreed to house Belgian prisoners. When the steep rise in the Dutch prison population came to a halt in the mid 2000’s, Holland was faced with spare capacity.  Tilburg prison, near the border, seemed to provide a temporary solution to Belgium’s chronic overcrowding problem while a building programme was undertaken.

Five years on Norway seems to be following the Belgian lead. It’s much further away of course (more than 1000 kms from Oslo to Amsterdam or a 14 hour drive).  Few Dutch speak Norwegian. But perhaps this won’t matter. The Belgians chose to select prisoners not in frequent need of transfers to Belgium for medical or family reasons, and in respect of whom pressure in terms of rehabilitation is low. This meant to a large extent foreign national prisoners and it  is likely that Norway , a third of whose prisoners are foreign nationals plan to do the same.

When the Committee for thePrevention of Torture (CPT) visited Tilburg in 2011, they took the view that as a matter of principle, a prisoner who has been sentenced to imprisonment in one State should not, on the basis of an administrative decision, be forced to serve the sentence in another State. Prisoners should therefore be able to choose. Will they do so?  Conditions in the Netherlands may not be as good as in Norway (where prison costs 270 euros per prisoner per day- among the highest amount in Europe). The CPT found serious problems of overcrowding and violence at Tilburg and a lack of regime. Norway may need to insist on certain standards in the places it’s buying but if its needs are so urgent it may have to accept what’s on offer. But is the need that urgent?

The prison waiting list is reportedly 1,300 but it has been higher - more than twice that number back in2006.  In much of Europe, people sentenced to prison do not always start their sentence immediately. If they have been on bail they return home to arrange their affairs before receiving an invitation to report to prison. This may be some weeks or months later. In some countries where prison capacity is limited, the invitations are delayed as a way of managing the population. The position is different for those remanded to prison and many foreign nationals, with fewer community ties fall into that category.

But where someone has abided by bail conditions and receives a short sentence there is no reason not to commute that to a period of home detention with some unpaid work of community benefit.  For more serious cases, the Government might look to reduce the proportion of sentences served in custody. Knocking 10% off sentence lengths (replacing them also with a package of tagging and community service), could free up places and improve resettlement.    Renting extra space might no longer be necessary.

Constructive and imaginative measures such as these would confirm Norway’s reputation as a leader in prison reform. It could otherwise be endangered by the risky plans for going Dutch.

The crisis in prisons has revealed not only a deterioration of a service but a failure of governance.

  Of all of the public services facing austerity cuts since 2010, prisons have perhaps been the least able to cope. The often disastrous decline in standards in many establishments, public and private, is all too clear from seemingly weekly Inspection reports. Last week we learned that at Wormwood Scrubs, many windows are broken with some exposed shards, graffiti is widespread and many toilets are filthy. Three years ago it was an improving prison that had got many of the basics right. But even then, a few cells were in very bad condition and sometimes prisoners could not be provided with socks and pants. Little wonder that with budget cuts that have seen staff numbers fall by almost a quarter, the prison has deteriorated in almost every respect.

Given that what’s happened at Scrubs increasingly looks systemic, few would disagree with the Observer newspaper’s call for a complete overhaul of the penal establishment in England and Wales. An overhaul means a thorough examination of a system, with repairs or changes made if necessary. The question is who is to do it and what should be its scope?

As for who should do it, we need some new machinery. The crisis in prisons has revealed a failure not only of a  public service but of its governance. There is no shortage of watchdogs but the Inspectorate, Ombudsman and local Monitoring Boards have been revealed as lacking in  teeth.  Parliament takes a sporadic interest but the Public Accounts Committee’s last foray produced the risible conclusion that the management of the prison estate should be disseminated across Government as a best practice example.

The Justice Committee is starting a long overdue inquiry into prisons planning and policies which they say will be an opportunity to consider in detail the current programme of reforms and efficiency savings. But there can be no great confidence that it will produce much more than a further catalogue of failure, with the danger of dividing on party lines as the election approaches.  I have previously suggested a Royal Commission but as Harold Wilson said their problem is that they take minutes and waste years.  If as the Observer rightly says the need for prison reform is desperate, we can’t afford to wait. A judge led inquiry like Lord Leveson’s could be a better model.  

As for scope, the organisation, funding , standards and inspection of prisons and probation should all be looked at, with plans to sell off the latter put on hold until the inquiry reports.

There’s no doubt that any meaningful inquiry into prisons needs to look too at who goes to prison and for how long.  Anything else would put the cart before the horse.  Terms of Reference could be drawn from a recent British Academy Report which asks why and how we should try to reduce both the number of people we imprison, and the length of time for which many are imprisoned.

Today’s Liberal Democrat “pre-manifesto” proposes action on two of the proposals in the British Academy’s report  -restricting the use of jail for certain offences and removing mentally disordered and addicted persons from prisons. Plans to “depenalise” drug use are bold and encouraging (contrasting with a misleading claim that the Coalition has delivered more prisoners working longer hours).  

The promise to reform prisons, likely to be made in due course by all the parties, can only be achieved by these kinds of measures and others proposed in the British Academy Report.  Any overhaul needs to consider how to achieve more extensive diversion from courts, greater use of alternative disposals, restrictions on short prison terms and shorter sentence lengths. Only then perhaps will we ensure that prisoners at Wormwood Scrubs can get underwear.

Parc Inspection Report should send Secure College Plans to the Drawing Board

 The champagne corks must be popping at the headquarters of G4S. After two “anni horribili”, the company can bask in the glow of a positive report from the Prisons Inspectorate. The children and young people at Parc prison in Bridgend are being well looked after and experiencing good education and healthcare. 

Coming after a run of appalling reports from HMIP about prisons of all kinds, it comes as something of a relief to read about a safe clean establishment, (or part of one at any rate), with low levels of violence, self-harm and drug use, doing its best to ensure that young people can access good and useful services and experience positive outcomes.

And as someone who has been critical of the shortcomings in some privately run prisons, it was sobering and pleasing to read about the positive staff culture at Parc. Young people, HMIP found, are not collectively seen as a problem or blamed, and the culture is not punitive.  There’s a lesson there for the rest of the juvenile secure estate. But what else can we learn?

For one thing of course that as far as prison custody is concerned, the Parc Unit is very much the exception rather than the rule. With a capacity of 64 and an average population of 50, it is smaller than each of the Secure Training Centres let alone the other Young Offender Institutions.  If not beautiful, small is the least ugly as far as prisons are concerned. The report suggests that the Coalition’s plans for a 320 bed secure college to be negligent at best and reckless at worst.

A second reflection is that according to the Howard League’s recent report, Parc Prison as a whole was one of the only prisons in the country to see its staff numbers increase between 2010 and 2013. According to a parliamentary answer last year, there were 70 total staff in post in the young offender unit in 2012. This relatively generous staffing ratio explains why for example more than two thirds of the young people told inspectors that someone had checked on them personally in the last week to see how they are getting on. In other juvenile YOI’s fewer than two fifths say so. 

There are weaknesses identified in the report. Fewer than a third of black and minority ethnic young people agreed that most staff treated them with respect compared to 80% of white young people. More worrying still, half of BME young people said they had been victimised compared to 7% of white. These findings deserve more attention than the Inspectors’ comments that they did not see evidence of this and children did not raise it with them. The Inspectors also skate over the finding that fewer than half of young people said it was easy to attend a religious service, compared to two thirds in 2012.

A more troubling anomaly is the Inspectors comment that the use of separation or segregation was commendably low. True it was lower than at the last inspection two years ago. But 131 placements in segregation in the six months prior to the inspection is actually high for a unit with 50 people. In a similar period, Wetherby used it 182 times with a population of 230; Hindley 96 times for a population of 161.

Inspection reports are immensely useful but would be even more so if they included a little more in the way of quantitative data.  Systematic information about staff numbers and ratios, budgets, numbers of incidents of various kinds would enable more telling comparisons to be made and lessons drawn. But there is no doubt about the main one to be taken from the Parc Inspection. Take plans for the Secure College back to the drawing board.  

Chris Grayling Must Accept Whats Happening in Prisons

          One imagines the election can’t come quickly enough for Chris Grayling. Whatever the outcome, he’ll be freed from responsibility for a prison system that is rapidly deteriorating in front, if not of his eyes, then those of almost all who work in and visit jails. 

While he may not think so, as a society we are indeed lucky that the Prison Inspectorate (HMIP) and local monitoring boards (IMB’s) can catalogue for us the impact of the cuts which he and his predecessor have imposed on the service; and to signal the dangers they pose to security, control and justice in prisons. As Zola put it, "if you shut up truth and bury it under the ground, it will but grow, and gather to itself such explosive power that the day it bursts through it will blow up everything in its way".

Much has been made of the stinging criticisms in Nick Hardwick’s recent reports. But the annual reports of IMB’s- the local people who visit prisons week in week out are to some extent more telling. IMB’s sometimes have a reputation of being too close to the prison management and too much part of the local establishment – I met an IMB chair last year who had first been appointed by Roy Jenkins. But the reports they send to the Justice department each year are born of familiarity with the day to day life of the prison which HMIP cannot easily capture.

What is striking about recent reports is the concern about the impact of the benchmarking process which has been used to determine adequate staffing numbers.

Take two very different prisons both given reasonably positive reports last year by HMIP and both rated a 3 -   meeting the majority of their targets- in the latest NOMS performance table. At Liverpool, a large local jail, the IMB reported that members, when performing their duties on the wings, “have noted with considerable concern, the low ratio between Prison Officers and prisoners. If staffing levels were reduced further, the Board feels that the capability of prison staff to contain any incident that may take place would seriously compromise staff.” At Erlestoke, a small Training prison “the Board continues to be concerned about the staff to offender ratios, particularly on the residential wings. There are times during the day when only one officer is on duty, responsible for over approximately 50 offenders. The Board considers this to be unsafe for the officer and for offenders”.

At Nottingham, the IMB reported that  the reduced staffing levels which came into effect in September 2013 as a result of the nationally imposed benchmarking operation, have severely stretched the prison’s resources, resulting in frequent cancellation of education, library, work, exercise sessions and  gym sessions together with  the virtual collapse of an effective Personal Officer scheme. At Norwich, officials from the Department of Work and Pensions do not consider the reduced staffing levels provide enough safety for them to visit prisoners in the activities block. At Portland, the IMB questioned whether the prison could continue to function humanely and efficiently at even the most basic level, if there are further financial cuts.

Other Boards describe some of the impacts of those cuts and of overcrowding, whether it is prisoners forced to urinate on the floor of vans outside Norwich prison, cells measuring less than 6.5 square metres being used for two prisoners at Lewes or lack of sufficient prisoner clothing at Lincoln. Some of this treatment,  including the growing incidence of abuse of prisoners by cell mates  and other prisoners - could easily be found inhuman and degrading were it brought before the European Court of Human Rights .

While he is likely to be dismissive of any such findings, it is difficult to see how Grayling can simply continue to ignore the findings of the Boards or the Inspectors. Both the HMIP and IMB’s form part of an internationally authorised body aimed at preventing ill treatment in places of detention in the UK- the so called National Preventive Mechanism (NPM). Under the Optional Protocol to the Convention against Torture, the UK government has agreed (at article 22) to examine the recommendations of the NPM “and enter into a dialogue with it on possible implementation measures.”

Such a dialogue is therefore not simply an urgent practical necessity but a legal requirement. Grayling will surely wish to comply with the Ministerial Code which places (at 1.2) an overarching duty on Ministers to comply with the law including international law and treaty obligations.