Cold Feet on Shorter Sentences?

By a strange twist of timing, the day before the Liverpool post mortem on TR, and in the middle of the Brexit shenanigans, David Gauke was giving evidence to the Justice Committee, principally on the subject of Legal Aid, but other important matters cropped up, including him meeting CRC CEO's the following day! For Sunday reading, it's worth paying close attention to his answers, especially in view of our discussions in a wet Liverpool last week:-  

Q18 Chair: We have been talking a bit about legal aid, and we are going to come back to that. Sometimes, it is suggested to us that the problem in your Department is the way it is set up, in the sense that, essentially, the bulk of the spend goes on prisons and probation, and courts and legal aid are tagged on and are potentially poor relations. 

David Gauke: That argument is made sometimes. When we were going through the allocations decisions last year, we had to make a number of difficult decisions. In truth, a number of difficult decisions had to be made on the prisons side as well, and probably, in that case, prisons bore the greater burden. It is a question of making a judgment as to what is right and what is necessary across the piece. 

I am not sure that, if one looked at spending across the different parts of MOJ, one would necessarily conclude that things have been skewed in the direction of the Prison Service, for example, versus anything else. On the courts side of things, it is a process where we work very closely with the judiciary. I work very closely with the Lord Chief Justice in determining where spending should be. The truth is—it is no secret—that the Ministry of Justice has had to make a number of difficult spending decisions over recent years. Every part of the Ministry of Justice has had to find savings and efficiencies. 

Q19 Chair: You make the point that you have to work with the judiciary. You have a unique role among Cabinet Ministers because of the judicial oath you take as Lord Chancellor. David Gauke: Indeed. 

Q20 Chair: You made it very clear when you took office that you regarded that as central to your function. What do you think is necessary to give you the resource to continue to achieve that objective? 

David Gauke: You are right. There is a duty on me to ensure that our justice system gets the resources it needs. In our approach to resources, I hope that the relationship with the Treasury over the last 15 months or so has been strengthened, building on very good work by my predecessors, to ensure that we spend public money wisely and efficiently, and that, if we need to go to the Treasury and say we need additional resources, we do so on the basis of evidence having been built up and a record demonstrating that we spend public money sensibly. 

You will be conscious that we made a fairly significant reserve claim for 2018-19. We are engaging very constructively with the Treasury for the future. I hope that will become clearer in future, but it is on the basis of demonstrating that we spend money wisely. To use a terrible phrase, it is not a question of shroud-waving; it is about making a strong case as to what we need to deliver a satisfactory justice system for the 21st century. 

Chair: A key part of that is prison spending. 

Q21 Victoria Prentis: We are not expecting you, particularly after the day you had yesterday, formally to have digested our marvellous report. 

David Gauke: I confess I have not read every page. 

Q22 Victoria Prentis: But we wondered whether you had had a little look at it and what your initial impression was. 

David Gauke: I have. If I may, I will make a couple of comments. It will come as no surprise to anybody on this Committee that I share the Committee’s desire to ensure that we have a justice system that delivers rehabilitation effectively and adequately. In my view, it is important that we ensure that our prison system is decent, humane and safe. We have faced very high levels of violence in recent years, and we need to make sure that we address that, because it is very hard to put in place adequate levels of rehabilitation when people are worried about being beaten up and drugs are overly prevalent. 

It is right that we get the basics right, and I strongly believe that that is necessary for safety and decency, but we also need to deliver on rehabilitation. We are making progress on that. Just this week, we have new education contracts in place. The education and employment strategy is very much a focus of mine; it is something I place great emphasis on. I want to deliver, as I know this Committee does, a justice system where people’s lives are turned around, because that is the way we can reduce crime. Reduce reoffending, and you will reduce crime. 

Q23 Victoria Prentis: In your speech on 18 February, you said there was a strong case for reducing shorter sentences. That is a major feature of our report and is the feature that was picked up this morning by the press, in so far as any of it has been yet. Do you think the Government would consider introducing legislation to that effect? 

David Gauke: Yes, we are considering our options. No decisions have been made as yet, but I worry about the impact short sentences can have and the poor rehabilitation record of those who have been sentenced to short sentences. This is a complex matter and it will be necessary to look at particular offences, as to whether the arguments are as strong on rehabilitation, and whether there are perhaps different arguments on deterrence or public protection that come into play. 

Q24 Victoria Prentis: The difficulty is that actual funding will have to be spent on robust alternatives, and real work will have to be done to make sure that there are good alternatives to prison. 

David Gauke: I very much agree. It is important not to think that addressing the issue of short sentences is, for example, a huge moneysaving opportunity. In the long term it might be, if it helps to reduce reoffending, but I completely agree with you that reducing short sentences needs to be viewed in the context of improving the alternatives. Community sentences that are robust and properly enforced are very important. It needs to be looked at as a package. I do not think one can overnight get rid of short sentences and then hope for the best. It needs to be viewed in that context. 

Q25 Victoria Prentis: We feel very strongly about that, as you will see from the report. I think the Committee would press you for a timeframe. Do you have any ideas? 

David Gauke: It depends on the particular routes one goes down. I stress that no decisions have been made, but if we were looking at a legislative route, given the approach I like to take, which is to be led by evidence, it would not happen overnight. Equally, going back to my earlier point, one needs to look at it at the same time as looking at alternative, community, sentences. We need to make sure that they are in place and robust. 

I do not think it can be sorted by the end of the year; it will take some time, but I am very keen to use that time to continue to make the argument and, I hope, build a consensus, which is sustainable and long term, that the approach we take to our justice system should be led by the evidence and focused on reducing reoffending. If we can do that, there is a significant prize for society. 

Q26 Victoria Prentis: You will certainly have the support of this Committee in that.

IPP prisoners remain, for this Committee, a very worrying part of our prison population. The numbers continue to fall, but two particular points worry us. First, we are left with a rump, if you like, that seems to be very difficult to deal with or to release. What steps are you taking to ensure that those cases can be looked at properly? 

The second thing we are worried about is the very high number of recalls in that population. I think it is nearly 1,000, which is astonishing given the size of the population. Those are our two areas of concern about IPPs. 

David Gauke: I do not want to depress the Committee further, but there is a distinct risk that the number of IPP prisoners will cease to fall because the level of recalls will exceed those being released. The difficulty, and a real challenge for the Parole Board, is that, as we get down to the hard core of those prisoners, they have to make an assessment as to public protection. The Parole Board will not release prisoners when they think there is significant risk to the public. They have to make those decisions on a case-by-case basis. 

Q27 Victoria Prentis: Have they been given all the resources and ability to make those decisions as quickly as they are able to? 

David Gauke: Yes, I think they have. For example, additional resources became available at the time of the autumn Budget for the Parole Board, so I think they have the resources they need. The Parole Board has a very difficult job and they need to make decisions on the basis of the evidence in front of them. That is what they are doing, but if their judgment—it is a very difficult judgment to make—is that an IPP prisoner would present a risk to society, I am not going to be critical of them for refusing to release such a prisoner. 

Q28 Victoria Prentis: Do you think sufficient resources are available to support IPP prisoners after release? That might in itself reassure the Parole Board but would also, one would hope, reduce the number of recalls. 

David Gauke: That is something we constantly have to look at to see whether more can be done in that area, but I am not particularly aware that it is the constraint in this case. At one point, I asked for some anonymised examples of the type of people who are not being released. It is very much not my decision, but when those anonymised examples are presented, you can see why the Parole Board was reluctant to release some of those individuals, even though they might have been significantly beyond tariff. 

Q29 Chair: Isn’t the real answer to grasp the nettle, as Lord Thomas of Cwmgiedd, the former Lord Chief Justice, suggested, and change the law, and re-sentence all the current IPP prisoners to determinate sentences in accordance with what would be the normal practice now, rather than having this hangover in the system? 

David Gauke: There is certainly a respectable argument for that. Let’s see what progress we can continue to make. We all have to face the fact that many if not all of these cases are difficult, and there is a significant risk to the public. Much though my approach is very much focused on rehabilitation and so on, I also place significant store on protecting the public. 

Q30 Chair: Absolutely. Many of us might say that determinate sentences might be quite substantial, but they might be a more open and honest way of dealing with the matter than the half-life of the IPP. 

David Gauke: I can see that argument. I do not think anyone can be terribly comfortable with where we are. I accept that. 

Q31 David Hanson: The Minister of State, Rory Stewart, sent us a very helpful letter on 1 April regarding Birmingham Prison. He indicated in that letter that the cost settlement from G4S was £9.9 million. Is that the total cost to the Ministry? 

David Gauke: That is our assessment of the fair cost to us in stepping in at Birmingham. We believe we are being properly compensated for stepping in with regard to Birmingham. 

Q32 David Hanson: The £9.9 million covers the entire cost to the Ministry for the failure of Birmingham Prison and taking it over. 

David Gauke: It covers the cost of our stepping in with regard to Birmingham. I think the answer is yes. Obviously, we now take up some costs in running Birmingham, but that is the step-in cost. 

Q33 Chair: While we are dealing with this side of the Department’s work, can I put one other point to you? You said you wanted to work on the basis of evidence. The evidence is that Transforming Rehabilitation has been a complete failure, hasn’t it? 

David Gauke: Clearly, it has not delivered in the way we wanted. Last summer, I set out that I was going to make changes and bring those contracts to an end early. There was additional funding, for example, on the through the gate processes. We set out our proposal and consulted on it, and we have been looking very closely at the responses. We have also been looking very closely at what the NAO and Dame Glenys Stacey have said. Tomorrow, I am meeting the chief executives of the CRCs to discuss this further. I am reflecting very carefully on the balance between the public sector, the private sector and the voluntary sector in delivering probation services. 

Q34 David Hanson: Following up my first question, I want to deal with the cost of Working Links and Interserve collapsing, the cost of taking over those projects, plus the costs of repairing the damage that the chief inspector of probation and the National Audit Office referred to. What is your total estimate of those costs to the Ministry of Justice? 

David Gauke: The first point is that, as you have just heard, I am willing to acknowledge that there are things in the current probation set-up that are not satisfactory and adequate, and we will have to make changes. In terms of the criticism that this is costing the Exchequer lots more money than was anticipated, I do not think that is right at all. We are spending considerably less on probation and the CRCs than was anticipated. That is not to say that everything is all fine with the system; it is not. 

Q35 David Hanson: That is because there are fewer people being referred to CRCs, so the cost was not transferred and spent accordingly. 

David Gauke: It is also because the CRCs were paid by results and they have not delivered the results we wanted, but the expenditure on CRCs is less than we had anticipated. What has in truth been happening is that the shareholders of the CRCs have been subsidising the probation service, so it is not good for them, but the system is not good for us. 

Q36 David Hanson: Is it possible to supply the Committee with a balance sheet of costs incurred by the MOJ and payments made to CRCs, and your costs and estimates of what the Transforming Rehabilitation repair work will be? 

David Gauke: We can certainly provide you with as much detail as we possibly can, but we would also want to compare that with the anticipated costs of the CRC system. What we will find is that we are spending significantly less than we had anticipated when Transforming Rehabilitation was introduced. 

Q37 David Hanson: Is it possible to wrap that up with the response to the Justice Committee’s report of June last year that you promised to provide by October last year? As I recall, it is now April this year. 

David Gauke: I want to respond to that report when we have determined how we are going to respond to the consultation to the reforms I set out last summer, and how we want to take that forward. It would be sensible for me to respond to the Select Committee, and it is not my usual custom to delay a response, but, given that we are looking carefully at our options, it is right that we reach a conclusion before we respond to the Select Committee. 

Q38 David Hanson: The cynic in me would ask why you promised to deliver it in January this year—in October—when obviously there had been major changes and some consideration by the MOJ. Surely, it is now time to produce the Government’s response to the recommendations in the report we produced. 

David Gauke: The right thing for me to do is to take into account the evidence that has been presented to us as to the way forward and reach a conclusion on that. Once I have reached a conclusion, I can give a more helpful response to the Select Committee. Were I to provide a response at this point, I would be very limited in what I think I could say. 

Q39 David Hanson: Just between us, when is that likely to be? 

David Gauke: Just between us, I hope we will be able to say something in the not too distant future. 

Q40 Chair: Well, that’s faster than in due course, isn’t it? 

David Gauke: It is faster than in due course. It will be much earlier than in due course. 

Chair: We come back to the balance you have to have in the Department between the prison and probation side and the justice issues in the broader sense. You have been keen to ensure that there is proper access to justice, and some of our earlier questions were about how you make that a reality, rather than its being, in the famous phrase, like the Ritz hotel. We are now going to ask questions about the way people can access the system, some of the changes to eligibility and so on.