Sunday, 8 September 2013

Incompetent MoJ

Just when I thought I was beginning to get a grip on this whole sorry saga, it turns out that the Ministry of Justice and Noms HQ are even more incompetent than I imagined. For the last couple of weeks and since Joe Kuipers, Chair of Avon and Somerset PT told us, we've all been labouring under the misapprehension that individual Trust Boards had some discretion in relation to the contract variations being imposed by HQ in London. 

It's not his fault that the MoJ/Noms implementation team can't even get right the documentation sent to each Trust regarding the contract variations they want each to sign up to. They can't employ any lawyers down there in London because they neglected to make it clear that the Ministry was invoking its powers to make the contract variations mandatory:- 

"Interestingly it has emerged that the variations we are about the discuss are 'mandatory'. This means that the Authority (NOMS) is using a power within the contract to force Trusts to comply with the variations. As I have indicated previously, many are no more than updating the contract, but others have more material consequences. The contract sets out that where the Authority uses its power to make a variation mandatory it will make this clear that the variation is mandatory in the title of the variation. The mandatory nature of the variations was not clear when they were received by the Trust, and the relevant notification is now 'on its way'. This has only emerged following our questioning. The Trust Board can appeal to the Authority. My understanding is that most trusts have already signed the variations - whether they have discussed them I do not know.

That said, the more important variation is the one still expected in final form, the one detailing the termination of the contract, and this will not have been signed by Trusts as yet. It is important that readers of this blog understand this distinction between the variations; those referred to above and the expected one dealing with the termination of the contract. More on this in due course."

It seems we do indeed live in a form of totalitarian state and confirms to me the absurdity of having the charade of so-called independent Trust Boards acting under the terms of 'contracts' with the MoJ, when in reality the terms can clearly be unilaterally altered at any time. I think if I was an outfit considering making a bid for probation work when it's advertised on September 19th, I'd be very wary indeed of the sneaky small print. Joe says it's possible to appeal, and you know something, I hope one or two Trusts do, just to emphasise what an epic omnishambles this is turning out to be.

Talking of bidders getting jittery, Joe's latest blog post picks up on recent twitter conversations concerning the small print likely to be part of contracts between CRC's and the MoJ covering the all-important issue of money. As outlined on the very helpful Clinks TR website, it seems potential bidders don't like the sound of possible penalties being imposed if they don't meet targets or astonishingly, if a client's risk level rises necessitating a transfer to NPS:-  

"Payment mechanism

Providers’ level of payment will be dependent on the reduction in reoffending which they achieve. Contracts will combine both ‘fee for service’ elements and ‘payment by results’ (PbR) elements. To receive the full success payment, providers will need to achieve both an agreed reduction both in the number of offenders who go on to commit further offences and a reduction in the number of further offences committed by the cohort for which they are responsible. 

MoJ/NOMS will also impose financial penalties if certain targets are not met or if an offender’s risk level escalates to the point that they require a transfer back to the public sector Probation Service. "

Sounds like a real recipe for disaster then with a financial incentive to keep the case and hope for the best. Should make for some interesting Serious Further Offence enquiries.

According to Joe's very informative blog post, it seems that last weeks teleconference with Trust Board Chairs was mostly concerning the four week 'consultation' that will be triggered by the official contract advertisements being published on September 19th:-

"There was a telephone conference between NOMS / MoJ and Trust CEOs and Board Chairs on Thursday 5 September, notified the day before. This was primarily to advise CEOs and Chairs that important 'draft' ('restricted') information would come to us on Monday 9 September addressing crucial HR issues in advance of a four week consultation period between each Trust (as the employer) and its staff commencing on 19 September. It is proposed that staff will be transferred to either the new NPS or CRCs by way of a staff transfer scheme called COSOP (Cabinet Office Statement of Practice on Staff Transfers in the Public Sector). It is the finer details around this transfer that unions, employers and NOMS / MoJ are negotiating. At the time of writing agreement had not been reached. On Friday afternoon we were advised by the PA that pending the next negotiating meeting on Tuesday 10 September the information referred to in the teleconference would not be made available until after that meeting. All pretty well joined up then?"

Helpfully the post goes on to outline some fascinating questions that require urgent answers:-

  • whilst staff terms and conditions were proposed to be protected on transfer to the NPS and CRCs from April 2014, would those protections continue once the CRC was 'transferred' to new owners after the competitive process (this transfer is expected to take place in October 2014)? Would the new owners be bound by the protections offered to staff at the first transfer?
  • whilst it appears that NOMS / MoJ intend there to be no compulsory redundancies, other than voluntary departures at the point of first transfer in April 2014, will the new owners of the CRCs be bound by the same expectation once the CRCs are transferred to them? Can the new owners of the CRCs institute a programme of redundancies?
  • will there be any roles or functions for Trust Boards after April 2014, such as addressing residual employment / employer matters (such as appeals, etc) or any Trust winding up functions?
  • once CRCs are created as being NOMS owned from April 2014 until they are transferred to new owners later in 2014, who (i.e. which people) will be the employers of the staff? The CRC will be the employer, but which people will deal with employment matters (such as appeals, complaints, etc)? What sort of governance arrangement will be in place to undertake some of the current Trust Board roles for the CRCs in this interim period before new owners put in place their own arrangements? 
As ever in this evolving epic omnishambles, the posts by Joe Kuipers shine out out as beacons of erudition and light amidst a mostly dark and hostile landscape. I would urge people to read what he has to say in full.  


  1. Uhmm. I posted an endorsement once, may have got lost in cyber space.

    Well done, thanks, please keep going, hopefully the national media will get on the story eventually - there are several elements that take it beyond the confines of probation and go to UK governance and rule of law issues

  2. I have read about via Twitter but did not see programme on TV about burglary and an IOM project somewhere in North of England(I think) that on MOJ orders Probation contribution concealed whilst Police were bigged up.

    Do you know anything about this - is there enough material to show in a post the extent to which MOJ PR and gagging is obscuring the positive work of probation?

    1. It is a Ch4 programme called 'Burgled' and filmed in Leeds. It is reliably reported that MoJ/Noms instructed WYPT that no probation staff were to be featured.

    2. That is the opposite of MOJ standing up for freedom of speech and also making argument for community sentences which IOM does. They missed an opportunity and should have been backed up by press report from the Probation Trust involved who presumably have it as a duty to look after interests of public but were being stopped by Government and what about local MPs especially the opposition ones?

      I read on Twitter of an MP who, in the past when there was media concern about probation, visited a project - in the south west(I think) but wanted his visit kept quiet!

  3. At risk of sounding bad, i wouldn't expect the 'public' to take an interest. And the press in this country are rarely conduits to truth & understanding. We need a celebrity advocate! Any suggestions on who that might be folks? Anyone got Bill Bryson's number?

  4. JIm,
    Your blog and Joe Kuipers blog are beacons of light in a dark and tawdry landscape. Surely if just a few more Senior Management Team individuals showed a bit of backbone and spoke out we'd all be in a better place. NAPO leadership is also weak and amateurish. For instance the questions you have above are surely issues that we should have already been briefed about and be discussing......but no-one apart from you and Joe is doing this. It's unbelievable.

    1. Thanks - I'm really, really surprised how few people in positions of authority have been willing to speak up - quite shocking.....

    2. Napo published a Weekly Update on TR on 28th August and by my calendar there are seven days in a week and therefore the next Weekly Update was due on the 4th September. I don't know if there are more than seven days in a Napo week or whether it's a case of Napo not knowing what it is doing from one week to the next. It is however a bit galling that a membership that pays subscriptions to its union and expects to be kept informed, must look elsewhere to keep up to date with developments. If the Weekly Update wants to beat the next Halley's comet, then it has until 28 July 2061.

  5. I have no difficulty in accepting incompetence on the part of Noms/MoJ with regard to mandatory powers. But incompetence can thrive on gullibility and I do wonder whether they do have the mandatory powers they claim to possess. If they have such powers these must be written into law. Is this their interpretation of their powers or are their powers unambiguously set out in legislation? I wonder if there is an alternative legal interpretation. I don't know, I just raise the question as when dealing with politicians we have to remember they can be economical with the truth and show a tendency to terminological inexactitudes.

    If these powers do truly exist then what freedoms did Trusts have in reality? if someone could, without further legislation, simply come along and declare you defunct. So Trusts really were marionettes and their autonomy illusory.

    I know a judicial review is fanciful thinking in light of the appeasement strategies that Trusts and trade unions are wedded to, but unfortunately these are the only bodies with the resources to commission legal action.

    1. Netnipper,

      Given Chris Grayling's recently announced campaign to curb the use of Judicial Reviews, it would have a certain ironic and mischievousness aspect to

  6. I have copied this to my MP (Former P.O. and Labour Party member - Mike Wood). Perhaps he can confirm if the legislation/powers exist, as I can't see NAPO getting access to the Trust Contracts in order to find/confirm the existence of the 'powers' referred to.

  7. Sarah Teather, Lib Dem MP is to stand down at the next election. The reason she gave for doing so is that the Lib Dems are no longer a party that stand up for social justice.
    Her announcement is pretty damaging to the party as its only a week to party conference, and there will be much talk no doubt about the approaching election campaign and political strategy required to win that campaign.
    There is no doubt either that after the conference the coalition can expect some conflict within the ranks.
    If the Lib Dems are really the party to fight for social justice then they have to evidence this and all the more strongly if members are leaving the party saying this is not what the party stand for anymore.
    Although no date has yet been set, there is still the second reading of the TR agenda to be had in the commons, and my instinct says that the Lib Dems may give Grayling and his party a lot more headaches on the subject then they have previously.
    The fat lady hasn't sung yet.

  8. Dream on. The Lib Dems are a spent force of Tory enablers.

    1. Thats exactly the point.

    2. As a political party they are not going to help probation because I am sure LibDems know by now that they have lost their collective reputations by earlier policy changes - such as student funding - however there are individuals with integrity who I think are very unlikely to vote with the Government on the Offender Rehabilitation Bill - which has ALL its stages to go through in the House of Commons (1st, 2nd Readings, Committee Stage, Report Stage,) before it goes back to the House of Lords where any amendments made in the House of Commons have to be accepted. So it is also worth canvassing Lib Dem members of The House of Lords and cross benchers.

      The SPO Tweeter from Napo Surrey & Sussex branch who is in the lead with public resistance down South(Mike Rayfield) - they have an event in Epsom(The Lord Chancellor's constituency) this coming Saturday - has said that he had a positive meeting with Sir Bob Russell MP for Colchester.

      I knew Bob in the 80s & have had brief email contacts since (I actually worked for his campaign when he was first elected MP in '97) and would be stunned if he voted to kill probation, although I can understand if he and others in his situation do not vote against.

      I also think Sarah Teather is likely to support probation and perhaps others like Sir Alan Beith - long time magistrate - I think it is very worthwhile for Lib Dem MP's constituents to be canvassing them very strongly as individuals.

      There maybe some Tories who can be won over, although sadly not mine Priti Patel in Witham, Essex unless maybe she can be convinced TR WILL fail (as it will) and she will be blamed - (which she will by me at any rate!)

      Andrew Hatton