Time for the Lawyers

As I mentioned the other day, Napo have signalled that they intend seeking Judicial Review of the whole TR omnishambles, and now that the 'consultation' has ended, Joe Kuipers, the intrepid Chair of Avon and Somerset Probation Trust, mentions the need for lawyers a few times in his most recent blog post:- 

We now wait to see what attention NOMS MoJ pays to the questions and issues raised by Trusts in their responses and the time that will be spent considering them. It appears that the PA has reservations about the time NOMS MoJ will spend considering the many questions that the consultation raised and is seeking legal advice on what might be a reasonable period between receipt of the Trust responses and NOMS MoJ pressing the 'go button' signalling the start of the 'staff assignment' processes. 

To be frank it would be good to hear that the Probation Association were doing anything at all that might be deemed useful in the present situation. Quite rightly, Joe highlights the need for each Probation Trust to satisfy itself that due legal process is being followed, and that ultimately:-

Trusts have a duty of care to their employees and have to be assured that their actions are compatible with legislation.  In this respect it has proved problematic that NOMS MoJ has not released the legal advice from TSol, especially in respect of the fundamental nature of the staff transfers.

NOMS MoJ indicated in writing that our legal advisers can discuss specific issues directly with TSol, but subsequent to trying to do this we were told that such discussions needed to be routed through the regional legally unqualified transition team. We have asked NOMS MoJ to ensure that proper legal discussions can take place to enable our Trust Board to be reassured, or not, that it is acting legally. My concerns are that we may be directed to act before the legal matters are fully resolved and the buck stops with Trust Boards as the legal employers. In this respect I remain bemused that the PA, as the employers' organisation, has not sought its own legal advice on such critical matters choosing, it appears, to just accept TSol's advice.

TSol refers to to the government's legal adviser, the Treasury Solicitor, and Joe goes on to explain the need for more spanners to be placed in the works:-

As expected NOMS MoJ issued the mandatory contract termination variation clauses to replace the existing contract clauses which currently set an expectation of a 12 month notice period. In brief, the changes will allow for a minimum of a 10 week notice period, to be issued at the will of NOMS MoJ. To meet the expected timetable this means that notice must be given by mid January, but it allows for slippage to meet NOMS MoJ needs.

We have written in detail to our senior community manager questioning the basic unreasonableness of such an approach and the impossibility of completing certain expected and required Trust Board governance tasks should a 10 week notice period be issued. In the contract we can challenge a 'demand' deemed to be impossible. For example, final accounts cannot be signed off; the required annual report to Parliament cannot be completed; payroll and pensions matters are unlikely to be finalised securely; external contracts are unlikely to be resolved satisfactorily; etc. Our letter to the senior community manager is a first step in challenging this contract variation, which on the face of it our Board is unlikely to authorise me to sign without clarification of the issues raised. It is unclear to me how any Trust Board Chair can sign such a variation knowing that certain governance requirements could not be met.

and he hasn't forgotten about that pesky risk register:-

We have not given up on securing the NOMS MoJ TR Risk Register on the basis that we are not in the policy development but in the implementation phase. Our data protection officer has written to the Information Commissioner complaining that NOMS MoJ has failed to respond to the initial request for the release of the Risk Register. It is equally important that other key stakeholders, such as the courts and PCCs have similar access to the risk register to understand more fully the potential risk impacts and remedial actions taken to mitigate these.

Do you remember all that guff about open government we were promised some time ago? Well the following response to a Freedom of Information request demonstrates the reality:- 

Could you kindly furnish me with accessible records/documentation (2013) relating to the MoJ Transforming Rehabilitation reforms to the Probation Service by way of the mandatory Assurance reviews undertaken by the MPA (Major Projects Authority) I have contacted the Cabinet Office to request access to such review(s) and have been advised to exercise my right under the existing FOI protocol to obtain access to such information.

I can confirm that the department holds information that you have asked for.  Three reviews have been carried out on the Rehabilitation Programme by MPA – a starting gate workshop report, an early intervention workshop report, and a Project Assessment Review carried out by the Cabinet Office’s Major Projects Review Team.  I can confirm that we have interpreted your request to cover these reports, plus a response drafted by the Department to the early intervention report, and action logs relating to the recommendations set out in the starting gate workshop. 

In this case we will not be providing the information you requested, as it is exempt from disclosure.

We are not obliged to provide information if its release would affect the delivery of effective central government and other public services. In this case, we believe that releasing the information would inhibit the free and frank provision of advice (Section 36 (2) (b) (i) of the Act; inhibit the free and frank exchange of views for the purposes of deliberation (Section 36 (2) (b) (ii), and would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs (section 36 (2) (c) of the Act).

In line with the terms of this exemption in the Freedom of Information Act, we have also considered whether it would be in the public interest for us to provide you with the information, despite the exemption being applicable. In this case, we have concluded that the public interest favours withholding the information.

It's not about lawyers, but I thought I'd fill this space with something pointed out to me by Essex Andrew and that can be found on the wonderful Kent Napo facebook page - a letter from Chris Grayling no less:-

To the Probation Service.

We have looked at the figures of reoffending rates amongst a group of people with whom we have not allowed you to work i.e. those with short custodial sentences of under 12 months and have realised that despite not working with them you have been unable to reduce their reoffending rates.

Therefore we are going give someone else the opportunity to complete the job that we didn’t allow you to do and also take away your existing work.

We feel that there are other people much more likely to contribute to the conservative party to whom we can give the contracts to do the work you do now.

If you are lucky they may keep on existing staff members but we have ensured that there will be no need for them to tupee you over by creating a ‘new’ employer for yourselves in the interim.

This will mean that you will be able to maintain your employment with our new providers at a much more economic (for them) rate.

We have also changed employment law so that should they not want to keep you we have kindly reduced the notice period that they need to give you.

We are sure that you will agree that this is in the best interests of reducing reoffending for the future.

However should you not agree please remember that if you are found to be voicing that disagreement in any manner we will use our rights to terminate your employment immediately.

Yours sincerely

Christopher Grayling
The Conservative Party