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.