Ministry of Ineptitude and Vindictiveness

It's been a good week for Frances Crook of the Howard League, and yet another bad one for Chris Grayling and the MoJ, as explained here on her blog:- 

Books For Prisoners: Not a good week for the Ministry of Justice

It has not been a good week for the Ministry of Justice. On Friday it lost a judicial review that overturned its ban on books for prisoners, and on the Monday it had to pretend it had never banned journalists from attending a Howard League fundraising lunch. The ministry has become known for a mixture of ineptitude and vindictiveness.

The Howard League launched a campaign to allow books and other essentials to be sent in to prisoners following a ban introduced by the Ministry of Justice. The full story of the campaign is on our website and so I won’t go over it here. But, we did gain the support of top writers and it was a world media furore, making our justice system look ludicrous.

For years the charity has held fundraising events that are designed to educate people about prison issues, a key part of our charitable objectives. We were pleased to link with the Clink restaurant inside Brixton, to hold a fundraising lunch hosted by the High Sheriff of London. People made donations to our work and we gathered a glittering array of supporters, members, donors and some media types.

A couple of days before the event we heard that no journalists would be allowed to attend. So, we told them, and they got a little annoyed. Alan Rusbridger, Editor of the Guardian, emailed and Ian Hislop phoned the Secretary of State to complain, several times.

All of a sudden the decision was reversed. It had, apparently, all been a misunderstanding. So we had a very convivial lunch. Silly Ministry of Justice.

Details of the judgement are covered in this piece on the politics.co.uk website:-

Prisoner book ban judgement: Grayling's views found to be 'absurd' and 'strange'

We've gone through the judgement so you don't have to – and it is exceptionally bad news for Chris Grayling. Mr Justice Collins, in delivering the judgement that rules that the restrictions on prisoners' access to books are unlawful, reserves special criticism for the justice secretary. He notes that Grayling said on March 29th that prisoners were able to order books from Amazon using their prison earnings or money sent in by relatives.

"This I am bound to say was somewhat misleading," the judge states, "since it seemed to indicate that money sent in could be used with no constraints. In reality, that is not so since a prisoner cannot spend more than his or her weekly limit, however much is sent in by relatives or friends". Under the 'basic' tier, that is just £4 a week. Even under the top 'enhanced' tier it amounts to just £25.50.

The claimant referred to comments by deputy prime minister Nick Clegg that a ban on sending books to prisoners "would be ridiculous" and "outrageous". It was suggested that the clearly-stated principle that prisoners should be encouraged to read for education and rehabilitational purposes clashed with reality. 

The judge noted there's a loophole in prison rules which could allow the governor to bypass the incentives and earned privileges scheme's (IEP) "virtual ban". But they were dismissed by Mr Justice Collins, who said they "do not seem to me to have any relevance". A further loophole, which allows items to be permitted "in exceptional circumstances", was also examined. Did that apply to the case in question? To find out we need to look at the judgement in a little more detail.

The prisoner who brought the claim, Mr Justice Collins explains, was serving an indefinite sentence. She's a 56-year-old woman who was serving an indefinite sentence for a number of offences, including arson with intent to endanger life. Back in March this year she saw a neurologist because of lapses of memory resulting from epilepsy. At the time she was reading books by Alan Bennett, Monica Ali and the dialogues of Marcus Aurelius. She said she loved reading books. "She cannot stress how important they are to her," Mr Justice Collins noted. "Thus any restrictions on her ability to have available books which are not easily obtainable through the prison library operate particularly harshly."

The prisoner was serving her time at HM Prison Send, a closed category women's prison in Surrey. It has two libraries – and what Mr Justice Collins suspects is one of the best prison library services in the country. All the books requested by the prisoner were obtained for her. And it was pointed out there is reasonable access to the library and that it's open at sufficient times. All of these points served to undermine the suggestion that what the prisoner faced was a ban on books, Mr Justice Collins found.

A 'ban' isn't quite the right way of describing it. But what he did find was "a severe restriction on possession or acquisition of books which a prisoner can treat as his or her own". He noted not all prisons are as good as Send at providing a decent library service, blaming cuts for reduced staffing levels. Above all, he stated that "the IEP as now operated seems to fail to recognise that it is deprivation of liberty that is the penalty imposed and that any further restrictions must be fully justified".

On April 9th 2014 the prisoner's request for five books was refused. The books were Brewer's Dictionary of Phrase and Fable, The Penguin Book of Saints, Elephant Bangs Train by William Kotwingle, Billy Bathgate by EL Doctorow and Portnoy's Complaint by Philip Roth.

These would have exceeded the prisoner's allocation of 12 books – despite the fact the prisoner had more than enough room for them in terms of the amount of space the permitted items for her cell would have taken up. "That seemed to me absurd," the judge said. Reports from the courtroom suggest it was this comment during evidence hearings that prompted the MoJ's retreat on the issue earlier this year. Government lawyers offered to take the judge's view back to their "client" immediately. Mr Justice Collins reportedly suggested this was a good idea, and the MoJ quickly changed the rules.

In his judgement today he adds he is "pleased" that the MoJ subsequently amended the rules to allow more than 12 books. This was all well and good. But it didn't change the fact that 'exceptional circumstances' were still required to allow the books to come into the prisoner's possession in the first place. And it is in assessing the lawfulness of this that Mr Justice Collins makes some of his most striking comments. His judgement here assesses the difference between having access to books and actually possessing them yourself. They go to the heart of what books are for. They are an affirmation of literature and culture and knowledge.

"What in my view has not been taken into account is that for many there is a need to possess particular books to be treated as their own property," he states in paragraph 36 of the judgement. "Some books are used as references, such as dictionaries' Brewer's Dictionary may well fall into that category. Others are regarded as those which need to be available to be reread or, such as for example a compendium of a particular author's works, to be dipped into frequently. It is possession which can matter as much as access. It is difficult to follow why books are included in IEP facilities when their availability to prisoners is regarded to be so important. There is no ban on books in the IEP but the severity of the restrictions clearly may prevent acquisition and possession."

Then comes the critical part of his ruling. He makes clear that "in the circumstances" the virtual ban on books is contrary to the intentions expressed by Grayling. Mr Justice Collins says he can't see any good reason "in the light of the importance of books for prisoners" to restrict books so harshly. Because "an action taken by a public body must not be such as fails to promote the policy and objects of the enabling power", the policy is judged to be "unlawful".

He later adds that even the name of the IEP is strange. "In the light of the statement made about the importance of books and the absence of any intention to prevent or interfere unreasonably with prisoners being able to have access to books, to refer to them as a privilege is strange," the judge says.

This is a triumph for campaigners but, more, it is a triumph for the lawyers who have secured this victory. Today's judgement vindicates those who fought against the prisoner book ban – and leaves the MoJ embarrassed and defeated over one of its most unnecessarily harsh policies.

It's interesting to see a lawyer getting angry about Chris Grayling's appearance in front of the Justice Affairs Committee this week and subsequently venting their feelings on the firms blog site:-

Grayling has much to answer for

I know Chris Grayling is not a lawyer and that he is often criticised for his lack of legal knowledge and experience but he did a damn good impression of a top lawyer when he appeared today in Parliament to answer criticism of his reforms to the probation service, blamed by probation chiefs for two recent murders. It was so frustrating to watch as he escaped proper cross examination of the issues for the lack of knowledge of those charged with doing so.

For years the government has complained about the high reconviction rate amongst those released from prison after serving short term sentences. Successive Justice ministers have sought to blame the probation service and even today, Grayling, in defending his reforms, blamed for at least two recent murders and a host of other offences committed by people under the supervision of the new service, uses this same attack on the probation service by citing unacceptable levels of reoffending as justification for his reforms. No mention of a sorry then!

As said above, the perceived problem has always been re-offending rates of the shorter term prisoners. What he and his predecessors have not told you though, is that offenders released after serving less than 12 months are never ordinarily supervised by the probation service. This is a situation completely devised by government ministers, (presumably based on financial considerations because of the high numbers of released short term convicts, estimated at 200,000 that would require supervision) not judges or probation officers and is something that parliament could change but have thus far refused to do so. Now they have a willing private sector so can claim to be rightly addressing the issue.

The evidence that these reforms are intended as nothing more than a ploy to win votes must be the fact that this inadequate Probation service is left supervising the “High” risk offenders because the private sector will not take them on. And if the former probation service is unable to effectively monitor low to medium risk offenders, how is a CRC made up of woefully ill-equipped and inexperienced organisations with profit and only profit in mind and who will be taking over a reduced number of over-worked and under resourced staff from the probation service.

Today Grayling was unrepentant, preferring to save face than admit defeat, notwithstanding an 18 page letter from Probation chiefs, evidencing amongst other things the fact that the probation officer assigned to one of the would be murderers was not only a mere trainee but was also so over-worked that she could not maintain her home visits schedule for that and/or other offenders supposedly under her supervision. The offender in question who also killed himself had previously been convicted of a domestic violence offence. He ought to have been the subject of closer and more expert supervision.

Another probation officer was sexually assaulted by an offender she was supervising. His file carried with it a warning that he should not be alone with female probation officers. The probation officers in question and their supervisors did not ignore these warning, they simply did not know about them. The information on high risk offenders that the “probation service” holds is not available to the CRCs and their staff.

The CRCs are only meant to be dealing with low – medium risk offenders so this should not matter. However, that is where we have been lied to again. Offenders convicted of domestic violence offences are, like others often made to complete a “programme” of rehabilitative work. Many domestic violence offenders are rightly categorised as High risk yet as the “programmes” side of the newly reformed service falls within the remit of the new CRCs, the employees of these new services are often unwittingly working with High risk offenders in respect of whom they have no prior knowledge.

My wife is a probation service officer and she delivers one such programme to domestic violence offenders. Until recently, she would access all the information held by the service on her intended delegates as would her management. Now such information is not available to her. This is obviously a dangerous situation to exist. These concerns amongst others were properly raised by those opposed to the reforms, they were protested, marches were held and legal challenges brought. It was all ignored by the Lord Chancellor and his department and the tragedy is that the empirical evidence that they were right is now available for us all to see and so soon after implementation.

Sadiq Khan, writing on the Left Foot Forward website, sums up the Opposition view, but I can't help feeling it all sounds a bit unconvincing and feeble:-

Privatising probation puts public safety at risk

If this government has its way, by next May 80 per cent of people leaving prison or on community sentences will be supervised by private companies with no track record in this area. These companies will take over the day to day running of most of the probation service, on ten year contracts costing the taxpayer around £6billion.

All of this is happening despite no testing having been done to see if the new system will work. There’s been no piloting so we don’t know if the new way of working puts public safety at risk. The new payment model has never been used on this scale before in criminal justice anywhere in the world. It’s a reckless gamble that’s already leading to chaos -offenders going unsupervised, experienced staff demoralised and despairing probation officers opting to walk away.

No wonder experts, including the Ministry of Justice’s own officials, have been warning against these reforms ever since they were first announced. I’m not saying the old way of working was perfect. Far from it. Much more needs to be done to reduce re-offending, and it is right that those on short sentences are going to get rehabilitative support instead of being left to their own devices. But what the government is proposing goes against the grain of everything we know makes a difference in cutting re-offending.

Evidence shows that close co-operation between all of the key agencies – police, prisons, probation, local authorities, charities, employers, trainers and the private sector – really does lead to lower re-offending rates. What doesn’t help is carving up responsibility between different agencies, which increases the likelihood of failures, leads to confusion and creates a stifling bureaucracy.

Failures in probation put public safety at risk. To guard against this, a strong, independent chief inspector of probation is a crucial check and balance to prevent things going wrong. But Chris Grayling, in his arrogance, appointed a chief inspector with links to two of the companies that are preferred bidders for almost a third of the contracts. At a time when the chief inspector needs to be at their most vocal, serious questions are being asked about whether the current incumbent can perform the role free of fear or favour. Serious questions need answering about Chris Grayling’s judgement in making the appointment in the first place.  

To make matters worse, Grayling’s dogma and ideology have led him to insert poison pill clauses into the contracts with the private companies, which would provide them with a massive windfall. So insecure is he about his legacy that he wants to make it as difficult as possible for any successor to unpick his half-baked reforms. Should a change of government wish to walk away from his mess, the taxpayer could be lumbered with a compensation bill worth £400million. This is not value for money for taxpayers.

There is still a chance that the mess created by Grayling’s privatisation is so great that the wheels come off. If so, I’ve made very clear that any unsigned contracts will go straight in the bin if I become justice secretary. What’s more, if the contracts are signed, I’ll be asking the best and brightest experts to pore over them to find a way out that doesn’t lumber the taxpayer with the bill for Grayling’s windfall for the private companies. Let those bidding be on notice – I won’t simply inherit this this government’s plans, no questions asked.

The fact is there is an alternative if only the government had been prepared to look for it: local, publicly run probation trusts acting as commissioners of what works to cut re-offending. Each trust close to their local area, free to work with the public, private and voluntary sector to keep the public safe. Whitehall restricting its role to setting tough stretching targets, and a no nonsense zero tolerance regime in place for those trusts that fail. What’s more, as my discussions with probation trusts confirmed, most trusts would have taken on short sentence prisoners within their existing budgets if only they’d been asked – there was no need to privatise the service.

We can only conclude that the government’s plans are ideologically driven. Outrageously, the Lib Dems have gone along with Grayling’s plans to reward the same companies that have time and again let down the taxpayer. They are propping up the same payment model that failed so spectacularly in the Work Programme. Public safety is too important an issue to take risks with, but that is precisely what this government is doing with its reckless probation privatisation. 

Dame Ursula got a rough time from the Public Accounts Committee on the effects of Legal Aid cuts, as discussed on the Law Society website:- 

MoJ chief admits cuts rushed through without research

Leading civil servants at the Ministry of Justice have admitted they did not have the time to research the potential impact of cuts to civil legal aid. During a lively session before the House of Commons public accounts committee (PAC) this morning, MoJ permanent secretary Ursula Brennan said the government’s decision to cut £300m from the legal aid budget was ‘imperative’.

When pressed by committee members to explain the evidence basis for the subsequent Legal Aid, Sentencing and Punishment of Offenders Act which came into force in April 2013, Brennan said the timescale did not allow for evidence-gathering in advance. ‘The government was explicit it needed to make these changes swiftly,’ she told MPs. ‘It was not possible to do research about the current regime. ‘The piece of evidence that was overwhelming was the level of spending. The evidence required was that government said we wish to cut the legal aid bill.’

Brennan said research on the impact of LASPO had to wait until after the legislation was implemented but she rebutted the opinion that the measure had denied people access to justice. The permanent secretary also conceded that she does not know the cost of the reforms for other government departments, such as health, as no research has been carried out.

Committee chair Margaret Hodge accused the department of ‘endemic failure’ and criticised Brennan personally for not exercising her ‘proper powers’ to stop changes being implemented without an idea of their impact. ‘The thing that really distressed me is how you embarked on this with so little evidence,’ she said. ‘When you were changing the rules you had no idea the impact it would have.’

Hodge at times appeared frustrated with responses from Brennan, at one point accusing her of being ‘waffly’ and pressing her for ‘yes’ or ‘no’ answers. Another committee member, Conservative Richard Bacon, admonished Brennan for answering on behalf of other witnesses.

Conservative MP Stephen Phillips said it was impossible to tell if the government had achieved its £300m savings target if the MoJ did not research the impact of cuts on other departments. ‘How do you know there is not £100m of mental health costs flowing from these reforms?’ he asked. ‘How many economists are there in the MoJ? Dozens? It would be possible to work out the cost to other departments.’

Finally, as our day in court rapidly approaches, I see the intrigant has written to Chris Grayling again:- 

Dear Lord Chancellor,

So, you won the vote in the House of Commons on judicial review a few days ago. Congratulations: that is another one in the eye for all those ‘Rule of Law’ johnnies. They really are boring, banging on about it all the time. Your persuading the Commons to reverse the House of Lords amendments on judicial review to the Criminal Justice and Courts Bill is a triumph.

The purpose of judicial review is to ensure that the government acts according to the law. You said in the debate that most government departments face judicial review regularly. There are two alternative remedies for this state of affairs: 

(1) government departments could act within the law, or  

(2) government departments could carry on acting unlawfully whilst judicial review is curtailed. 

You have wisely chosen to take the second option. Or as you put it in the debate “we need to restore common sense to the way in which the judicial review system works, and that is what we are working to do“. How popular you will be with your friends and colleagues in government.

You said about judicial review in the debate “it was never intended to put the courts above the elected Government in taking decisions.” How wrong you were! It is a misstatement of what judicial review is there to do. The government should only act in accordance with such power as the law confers upon it. If a government minister, in the exercise of her powers, acts unlawfully then the courts via judicial review declare it so. 

The courts, too, cannot act in excess of the power the law confers upon them. Both the government and the courts are subject to the rule of law. So, the courts are not ‘above’ the elected government as you said, but the government (like the court) is governed by the rule of law. Thank goodness you are not a lawyer or you may have had to explain the constitutional position correctly in the debate.

As a result of your excellent changes, whilst: 

– the Monarch is subject to the law, 

– the courts are subject to the law, 

– the citizens of the state are subject to the law 

government ministers will be able to act unlawfully without being stopped. I particularly liked this nonsensical part of your speech in the debate: 

"As Lord Chancellor I take my responsibility to uphold the rule of law very seriously, but I do not believe that the way in which it has evolved in relation to the current use of judicial review is consistent with or necessary to uphold the rule of law."

Mr Justice Collins after a judicial review in the High Court ruled today that the government’s ban on sending books to prisoners in England and Wales is unlawful. He declared he could see “no good reason” to restrict access to books for prisoners. 

Thank goodness that in the future your unlawful decisions won’t be subject to these interfering busybodies. The Executive can now make the law and break the law. This self-serving state of affairs is also called, rather amusingly, tyranny.

Yours, with an authoritarian salute,

the intrigant.