- This article previously appeared on openDemocracy’s Our Kingdom site here
- Thanks to Andy Aitchison at PRISONiMAGE (@prisonimage)
If Mr Gove, who has taken over from Chris Grayling as Lord Chancellor and Secretary of State for Justice, were to ask my advice on how he and his team of Ministers should proceed, I would say that, before doing anything, they should obey the three key words that are impressed on every child when being taught road discipline – Stop, Look, Listen.
My article is in two parts, firstly an overview of the present situation, designed to convince him that all is not well, and secondly some advice on what remedial action he might consider.
Stop. Look. Listen. I use those three words as a plea, not an attempt to belittle the ability, or status, of any of those to whom it is addressed. The announced delay in bringing forward any legislation concerning a British Human Rights Bill encourages me to think that the government may have learned lessons from an unfortunate characteristic of the early days of the Coalition government, and of Chris Grayling when Secretary of State for Justice, namely charging ahead with the implementation of un-researched theories, in defiance of, or without any, supporting evidence.
In Mr Grayling’s case his headlong rush appeared to have a sub-plot, namely winning the votes of an allegedly punitive electorate, witness his introduction of party politics into what should, ideally, be an entirely non-party issue, by categorising any informed criticism or advice as ‘left-wing’.
Now that the electorate has voted that the Conservative party alone is to form the new government, it, alone, will have to reap the harvest of the seeds of potential crisis in the legal, prison and probation systems, sown by the same Conservative Prime Minister, and the previous Secretary of State for Justice. Mr Gove and his Ministers should therefore be aware that there is absolutely no one else whom they can blame if that harvest is poor.
During the recent election campaign there was a marked absence of mention of some very serious issues, such as Britain’s place in the world, foreign affairs, defence or the criminal justice system.
The electorate was not given the slightest clue as to which of the main political parties possessed the greater competence, or which would better protect them by their management of offenders.
All they got was a bewildering number of vote-seeking economic promises which confirmed my worst fears that being elected, or re-elected, is what really counted in the minds of many of those standing for election, party politics having a higher place in their pecking order than the national interest.
There is no doubt that too many of today’s politicians are ill-equipped to judge the practicality of ideas, or to know, from experience, just how essential is proper leadership of any people who are involved in the delivery of any programme or activity. This makes it even more important that they should seek out, and listen to, those who know what they are talking about.
I fear that politicians have inherited a most unattractive blame-culture, which amounts to trying to ensure that they can never be held responsible for any decision or action, for which they might be blamed. While I can sympathise with them for their lack of experience, I am always sad when I see them falling back on the traditional tool of the inexperienced — the presumption that the measurement of the quantity of process, based on prescriptive targets and performance indicators, is an appropriate substitute for professional judgement of the quality of outcomes. This cult of managerialism is the curse of our age, not least because it is so widely practised by inexperienced Ministers and officials.
Nothing encapsulates the danger of this more than the recent introduction of Payment by Results for services commissioned by NOMS, and/or the Ministry of Justice, for the rehabilitation of offenders. I have lost count of the number of times I have said in the House of Lords that ‘People Are Not Things’. Every person, offender or otherwise, is an individual, who will act differently, think differently and behave differently, in different situations, from other people. Therefore you cannot generalise about offenders in the same way that you can about things such as different types of baked bean for example, or assume that any measurement of quantity, other than their overall number, has any meaning.
On Day 1 as HM Chief Inspector of Prisons twenty years ago, I asked the Home Office statisticians how they measured the re-offending rate, on which the success, or failure, of the offender management system seemed to be based. They told me that it was impossible to measure and what they actually measured was the reconviction rate, which they did by counting up court appearances. I have come across no evidence to suggest that that situation has changed, yet Ministers continue to refer to the un-measurable as if it were a Holy Grail.
To say that you will only pay organisations, for achieving — or deny them payment for failing to achieve — something that cannot be measured, suggests that you are out of touch with the real world.
Such action risks alienating the voluntary sector, which does more than 50 per cent of the rehabilitation work with offenders. No organisation, or its funders, can afford to wait for the three years that it takes to measure the so-called re-offending rate, to be paid for services rendered. If such organisations walk out, or are forced to close through lack of funds, Mr Gove’s ability to rehabilitate offenders will be seriously diminished.
When Jack Straw, then Home Secretary, introduced what is euphemistically called the National Offender Management Service (NOMS), which is not a service at all but a system with its own bureaucracy, it was dubbed by some of its concerned opponents the ‘Nonsense On Marsham Street’.
It seemed to them, as it did and still does to me, that the last thing the Criminal Justice System needed or needs, is yet more bureaucracy, not least because both offenders, and those who have to manage them, are people, and ‘People Are Not Things’. Notwithstanding the dedicated hard work of many admirable individuals within it, the organisation and structure of the management of offenders has been dysfunctional for years, with operational staff crying out to be led rather than subjected to the cult of managerialism.One of the regular complaints made by prison staffs during inspections, was about the amount of time they had to spend answering demands for instant information from Headquarters. I have often wondered whether those in Petty France making those demands, actually understand that each request takes already busy and overstretched people away from their operational duties, namely working with offenders.Put another way, they are actually undermining the protection of the public, by preventing work designed to prevent re-offending. Such demands would be totally unnecessary if the management structure consisted of named people responsible and accountable for different types of prison and prisoner, because they could answer such questions without worrying busy prison staffs. I suspect that, in the vast majority of cases, the information is already available somewhere in the vast bureaucracies that are the MoJ and NOMS. I will outline a management structure solution below…Since the introduction of NOMS, two of the three Secretaries of State for Justice have interfered with the management of offenders in a way that would not be tolerated in countries such as Sweden, the worst offender being the first non-lawyer ever to have been Lord Chancellor throughout the long history of that appointment. I hope that Mr Gove will not be tempted to do the same, because managing offenders is a time-consuming task, requiring considerable skill and training that neither he, nor the vast majority of the bureaucrats who surround him, possess. There is no reason why they should, because they have other parts to play in the whole process, for which they need different skills and experience.Mr Gove might like to reflect on the fact that, unless things are right for staff, nothing will be right for prisoners. That is the way things are now.Staff numbers have been cut below a sensible safety and operational minimum – witness the increased number of assaults, the number of times the emergency response teams have had to be called out, and the number of activities for prisoners, such as education and training courses, that have had to be cancelled because there simply are not enough staff to escort prisoners to them.
Far too many prisoners are left locked up in their cells all day, doing nothing, which is the very antithesis of rehabilitation, and hardly the best way to help them to live useful and law-abiding lives in the future.
There are better ways of doing things, as good Governors prove whenever they are put in charge of prisons. But, as I have been trying to point out continuously since 1995, the problem is that neither good nor less good Governors are supported by a functional management system or structure.
I first became aware of this during my second week as HM Chief Inspector of Prisons, when, having walked away from an unannounced inspection of HMP Holloway, I introduced myself to the then Director General of the Prison Service, and asked him if I could see the Director of Women’s prisons. He replied that there wasn’t one, explaining, when I asked him who was responsible for ensuring that women in a prison in County Durham received the same treatment and conditions as women in a prison in Gloucestershire, that there was a civil servant in the policy department, responsible for publishing policy.
When I asked him who was responsible for overseeing that what was laid down was actually done, he told me that it was the geographical area manager. The snag of this was and is that, while responsible for the budget of every prison in their area, an area manager was not responsible for its operational practice. There was also no reason why an area manager should have worked in a women’s prison.
If I asked the Chief Executive of NOMS today, who was the director of any type of prison or prisoner, I would be given exactly the same answer, with the sole exception of High Security prisons. They have had their own Director since Lord (Michael) Howard of Lympne, then Home Secretary, accepted a recommendation from General Sir John Learmont (a military contemporary of mine) whom he commissioned to write a report on the escapes from HMP Parkhurst in 1993. The result, as I and my successors as HM Chief Inspector of Prisons have found, has been that only high security prisons are run as a group, have coherent career plans for staff, share good practice and, above all, have consistent programming for the type of prisoner they contain.
What is more, incoming Governors are not allowed to do their own thing, but have to follow on from where their predecessor left off. For the life of me, I simply cannot imagine why the proven advantages, particularly in terms of consistency, that result from having a responsible and accountable director, have not been repeated for local, training, resettlement, children’s and young adult’s prisons, as well as for specific groups of prisoners such as lifers, sex offenders, foreign nationals and those serving indeterminate sentences.
Having someone responsible and accountable for each type of prison and prisoner, is not heresy, but normal management practice in every operational organisation, all over the world, except for the British Prison Service. That is why I recommend its immediate introduction to Mr Gove. After all, every hospital has someone responsible and accountable for departments such as maternity, surgical, or A & E, every school for departments such as languages, science or history, every business for functions such as sales, finance or HR. The Armed Forces have named individuals responsible and accountable for each operational formation, as well as each arm or service such as Special Forces or Engineers.
The advantages are tangible both to those at the top, who know that, should a problem arise, they can question a responsible and accountable subordinate without having to initiate a separate examination, thus solving the problem of instant demands for information that I discussed earlier, and to those working in an organisation, who know precisely for what they are responsible, and to whom they are accountable and can turn to for advice. Such well proven practice is old hat in the world, so why not join the world?
When I look at the performance of individual prisons over the years, or attend the annual presentation of Butler Trust Awards for good work by individuals working in prisons or probation, I could weep, because the former it is not a steady line but an up and down zig-zag, and I know that award winning work is unlikely to still be being done in three years’ time, either because the initiator will have moved on, or it will have been dropped by the prison Governor’s successor.
During my time as Chief Inspector I deliberately included examples of good practice in every inspection report, amounting to more than 2800, some in the very worst prisons. However only 70 were picked up and run with, because the Prison Service simply did not have a lessons learned department, or anyone responsible for deciding whether such and such a practice was appropriate for a particular type of prison or prisoner, and turning it into common practice — the best way of making improvements. Not only is such inconsistency inefficient, but it is extremely wasteful of scarce resources.People used to come from all over the world to see the practice at HM Young Offender Institution Lancaster Farms, under an inspirational Governor called David Waplington. Although clearly best practice, none of it was picked up by the Prison Service, and, it having been abandoned, the prison has now sunk well down the performance pecking order. I just wish that Ministers, instead of introducing unproven theories, would concentrate on asking why institutions performed so inconsistently, and failed to deliver what was required of them. One possible solution is there for Mr Gove, and all, to see.But I also urge Mr Gove to do three other things that should have been done years ago. Against all the evidence that they work in other operational situations, they have deliberately not been tried in the penal system. Current practice is clearly not working, and I warn him that, unless something different is considered, and hopefully introduced, it will continue to deliver a constant rise in the re-offending rate, as it has done since 1997.All three assume that whichever government is in power will observe another simple and well-proven premise, namely that before embarking on any venture, you must ensure that you have the necessary resources, particularly a management structure, to enable you to do what you want. The ability of NOMS and the MoJ, as currently constructed, to deliver what is required of them has been questioned by both the House of Commons Public Accounts and Justice Committees on numerous occasions, and in countless reports by the Chief Inspectors of Prisons and Probation. Mr Grayling launched his ‘transformation’ exercise without organisation, staff, money or evidence, so what ought Mr Gove to do?Firstly I urge him to look again at Lord Woolf’s seminal report on the riots in Strangeways and other prisons in 1990. (You may read the report here). When Lord Woolf spoke recently, on the occasion of the 25th anniversary of the riots, he called for a fundamental rethink of penal policy, with which I fully agree. He also repeated that the three things most likely to prevent a person from re-offending were a home, a job and a stable — family — relationship. All three are put at risk by imprisonment as currently conducted, because far too many prisoners are held in prisons far from their local areas, for population management reasons, i.e. where there is room in a cell.
To mitigate this he recommended that prisons should be grouped into community, or regional, clusters, each cluster containing a sufficiency of accommodation of each type, so that no prisoner needed to be confined outside their local area. The only exception were high security prisoners, on the grounds that there were not sufficient numbers to justify a separate high security prison in each cluster.
In addition to making it easier for prisoners to remain in contact with their families, clusters required local organisations to become involved in the rehabilitation of their own prisoners. Local ownership of both local problems, and their solutions, is a powerful driver of better rehabilitation. Furthermore, keeping people in local areas allows continuity of education, work training and medical or substance abuse treatment, to name but a few, impossible in a system in which offenders from Devon can end up in prison in Cumbria.
The sense of this was recognised by the then Home Secretary, Lord (Kenneth) Baker of Dorking, who laid down that such clusters were to be introduced, in the White Paper, Custody, Care and Justice, published in 1991, following Lord Woolf’s report. Needless to say nothing has happened, but nor has the Prison Service proved that its present arrangements are better.Secondly I urge him to ask his officials what is the actual cost of imprisonment. They will tell him exactly how much money the Treasury allocates to the Ministry of Justice, how much is passed on to the Prison Service, and how much to each individual prison. But that is not the actual cost, which should include the cost of what needs to be done with and for each prisoner, if they are to be prevented from re-offending. If he presses further he will find that that too has never been worked out, and so cannot be costed. But, without knowing how much you need, you are in no position to know the size of any shortfall, and, without knowing the shortfall, you cannot possibly work out the implications in terms of what can, or cannot, be done with and for offenders.I then advocate consideration of a process that I came to know well when working in the Ministry of Defence. Each year, either a Defence White Paper, or some other government instruction, laid down what each Armed Service was required to do. This was then costed, and compared with what money was made available. Invariably there was a shortfall, and there then followed what was called a ‘basket weaving’ exercise, in which the implications were examined and ‘baskets’ made of the essential, desirable or nice to have for operational purposes. These were then put to Ministers, who had to lay down what had to be done, determine what could not be one, or decide that the operational implications were such that they were justified in going back to the Treasury to ask for more.In my naivety I imagined that this was common Whitehall practice, and that Home Office Ministers would know the actual cost of imprisonment, based on which they could lay down what could or could not be done with and for prisoners, or how much Treasury assistance had to be sought.
How wrong I was! While I heard endless complaints that the Prison Service was short of money, I found that no one knew — or knows — by how much, because no one had laid down what exactly had to be done with and for prisoners, and therefore nobody knew the amount of money required. Instead of Ministers laying down what was or was not to be done, such decisions were not even taken at Prison Board level, but left to individual Governors to decide. In governance terms this must be wrong, because Ministers, who are, after all, responsible for the outcome of such expenditure, namely the protection of the public, should make the decisions . . .
The need for Ministers to know exactly how much money is needed to manage offenders is accentuated by the demands of the austerity cuts, which the government has announced that it will continue to be impose. Unless they know how much is required, they cannot possibly make any sensible decisions over, for example, who should, or who should not, serve their sentence in expensive prison as opposed to under cheaper supervision in the community. If for no other reason than cost, Mr Gove should realise the stupidity, quite apart from the defiance of the country’s long and proud record of fairness under the law, of continuing to detain thousands of prisoners awarded Indeterminate Sentences, who are already years over their tariff.
The third ‘urge’ may not seem so obvious, and indeed is not in Mr Gove’s gift to deliver. Before the recent election, a number of All-Party Parliamentary Groups, of which I am a member, met with practitioners to discuss what they would like to say to new Ministers. One particular characteristic of the Coalition government was mentioned, namely that there appeared to be little or no tie up between different Ministries with different roles to play in a common venture. Particular mention was made that no one person appeared to be responsible and accountable for co-ordinating the actions and/or expenditure all Ministries involved, each one appearing to operate as a silo, the Ministry of Justice being one of the worst offenders.
A particularly blatant example of this was Mr Grayling’s promotion of the biggest children’s prison in the Western world, euphemistically called a Secure College, in the middle of Leicestershire. While he sought to give 320 troubled and difficult children, the vast majority of whom have mental health and emotional well-being problems, a programme dominated by education, the Children’s Mental Health and Emotional Well-Being Task Force, set up by the Department of Health, was conducting a pilot in the Black Country, part of the Secure College’s catchment area, to ensure that children with exactly the same problems were kept in their local area to enable continuity of treatment.
Emphasising its silo approach, the MoJ confirmed the College was not seeking designation as an official Place of Safety, which all establishments dealing with such children, are required to be. Therefore my third ‘urge’ to Mr Gove is that he should look at every activity in which the MoJ and other Ministries are involved, and ask the Prime Minister to ensure that one Minister, no matter from what Ministry, is responsible and accountable for co-ordinating their contributions to particular programmes.
Austerity is, or ought to be, a very powerful driver of all that I have mentioned. Mr Gove has an awesome responsibility, to exercise which he has been given a suspect bag of tools. Rather than rush in, with yet more theories, with which the Criminal Justice System, and particularly the Prison and Probation Services, have been bombarded for far too long, I beg him to ‘Stop’, before doing anything, ‘Look’ at what is required of him, and ask himself whether his present organisation is capable of doing what is required of it, and ‘Listen’ to those who know what they are talking about, and can tell him what will or will not work.
Armed with the knowledge of how much it costs to run an agreed offender management system, a regional structure, in which each region has someone responsible and accountable for supporting the management of its offenders, and an operational structure in which someone is responsible and accountable for consistent treatment of and conditions for each type of prison and prisoner, he will be in a position to run an offender management system that has at least a sporting chance of being able to protect the public. If he can go further, and persuade the Prime Minister that, it would make sense for one Minister to be responsible for co-ordinating the contribution of others, he will be in a position to determine whether and what remedial action needs to be taken to mitigate the ‘revolution’ rushed in predecessor. On his decision rests the protection of the electorate.