What Do Monitors Actually Do?

Regular readers will be fully aware of the many and varied failures of the MoJ, especially in the field of contract design and management. The Rainsbrook saga and former probation contractor MTC Novo's involvement is simply astonishing by any measure and here we have former MoJ insider and finance director Julian Le Vay spelling it out in all its gory detail:- 

RAINSBROOK TELLS US TWO THINGS. MTC ISN'T FIT TO RUN PRISONS. AND THE MoJ ISN'T FIT TO RUN PRISON CONTRACTS

The Justice Secretary has just announced that Rainsbrook Secure Training Centre, run under contract by MTC, has been treating the children it its care so badly for so long that he’s taking all the children out of it. It’s a saga that tells us that not only is MTC not fit to run prisons, but MoJ is not fit to run prison contracts.

Secure Training Centres

The Management and Training Corporation (MTC) is an American company that runs 24 prisons in the US, also training schemes for young adults. It gained a foothold in the UK with the privatisation of probation, running the service in 2 areas. Privatisation was an unmitigated disaster and has now been reversed. In 2016 the MoJ gave it the contract to run Rainsbrook Secure Training Centre, which had had a troubled history under G4S. It got worse under MTC. Three successive inspection reports were negative (jointly between Prisons Inspectorate, Ofsted and the CQC for healthcare). Despite this, the MoJ last year extended the contract to 2023.

To be fair to MTC, no company has made a success of STCs, a sort of prison for children, introduced by Michael Howard, but then carried forward by Labour. Four were built, under the Private Finance Initiative. They exemplify the perennial problem – possibly never entirely solvable – of providing in the same place both secure custody for children who’ve been convicted of sometimes quite serious crimes, and also care and education provision for children who are often seriously damaged, disturbed and disruptive. They are small units, 80 or so fully occupied, with high staffing levels and hugely expensive. Two have been closed, two remain, while the MoJ dithers about what’s to replace them. Meanwhile, as the number in custody shrinks, the remaining population has become much more difficult.

The failure of MTC

When the Inspectors returned in October last year, they were so appalled at what they found that they met the MoJ officials and wrote to Buckland on 5 November, who replied on 18 November saying that necessary action was being taken. That inspection report is here. When the inspectors returned in December, they found little evidence of progress. Children were locked in their bedrooms for 23 1/2 hours out of 24. On 16 December the inspectorate issued an Urgent Notification to Buckland, their last resort where institutions don’t just fail, but fail unacceptable and persistently (2). They said:

“Children’s daily experiences were bleak. They continue to receive a spartan regime. They receive little encouragement to get up in the mornings and there are very few efforts by staff to engage meaningfully with children…. there is no evidence of children’s’ educational entitlement being met…. senior managers were unaware of the regime.”

Whatever your views on crime, who in Hell’s name could think such a place could do other than lasting harm to deeply troubled children? Even Priti Patel might blench.

Buckland replied on 15 January, again saying that the necessary action was in hand. The inspectors returned on 26 January and found some improvement - an action plan had been drawn up - but little of it actually actioned. In March the Justice Committee held a special one off session and questioned the inspectors, Buckland, MoJ officials and MTC managers. The transcript is here.

It should be said that the Committee’s session focussed primarily on the Urgent Notification and the report made at that time. It paid relatively little attention to the brief report of the further visit in January, which noted some early signs of improvement. Nor did the Committee pay much attention to the fact that there was a COVID outbreak at the time, causing staff to be off duty and requiring newly arrived children to be isolated (though Oakhill STC managed isolation with a lot more time out of cell). MTC may well have felt aggrieved at that. And it was especially hard on the new Director, Ian Mulholland, who’d arrived only on 4 January. But clearly MTC had by then expended all credit with its critics. It had had one too many drinks in the Last Chance Saloon. The unfortunate Mulholland arrived just in time to pickup the tab.

The Committee reported on 29 March (2), saying that they were

‘shocked and appalled by what we heard’ and were ‘deeply concerned about MTCs ability to manage the Rainsbrook contract’.

What shocked them most was that not only did the MoJ and YCS not know, at the time of the inspection, the state of affairs at Rainsbrook, but neither did MTC managers on site. Indeed, when inspectors told them face to face, in their December visit, that children were still being locked up 23/12 hours a day, the response by MTC managers was first to tell the inspectors they were wrong, and then to add that the children themselves were wrong.

Here’s the Ofsted Inspector:

“When I sat…with the director and deputy director and said ‘Children are still being locked up for 23 1/2 hours a day’ and they said ‘We don’t think they are’, I do not think they were lying. I just do not think they know the basic principles of going once a day to talk to the children…they were just not doing it…it was utter incompetence.’

The inspectors pinpointed the root of the problem:

“senior managers issues instructions; they write procedures and protocols, often very detailed; but they are not implemented at middle and junior management level…. they do not have the means…. to follow through to make sure these things happen on a day-to-day basis, so they just keep repeated….”

This is a familiar problem in prison management. The task of ‘managing upwards’ is very time consuming, and more so when an institution is in trouble and there are lots of inspectors and lots of questions. But all the more important to ‘walk the walk, and talk the talk’ to ensure that you are not blinded or mislead by all the paper, and that what you said should happen is happening.

What makes this incomprehensible in this case – certainly to the Justice Committee – is the tiny scale of this institution. In a prison of 1,800 prisoners and maybe 500 staff spread out between many blocks and with layer upon layer of management, such a failure to check on reality would be more comprehensible. But this unit had, at the time of the last inspection, just 45 occupants. 45! From the Director’s office to the children’s rooms was a 2 minute walk. But they just did not do it. Moreover staff: prisoner ratio, 1:5 in some adult jails, was here more like 1:1, or even lower (3). How could managers not know the reality of something so fundamental as time out of room - something inspection after inspection had focussed on as unacceptable, and on which MTC gave assurances to the MoJ which were simply untrue?

To my mind, this alone should disqualify MTC from any further contracts for custodial facility in this country. If it gets the basics of management this wrong, under this much external pressure, in such a tiny, heavily staffed unit, how on earth could they cope with a 1,800 prisoner new prison?

The report reveals other fundamental and long-standing problems with MTC’s operation:

• An impossibly high turnover of managers – 4 different appointed Directors in 4 years, and interims in between
• Recruitment of staff with a background in adult prisons, with few having experience of the very different world of child offenders
• An impossibly high turnover rate for staff as well – the Justice Committee was told that most left before a year in the job (as I note in my book, in the past this was often seen in prisons that failed)
• A culture focussing on paperwork and meetings

I suspect there is another problem behind this all. MTC is a huge American company with a tiny UK business, that’s not doing at all well. The majority of Directors of MTC (UK) appear, from the accounts, to be Americans. I have experience of just such an environment in the IT sector. I know how difficult it is to get backing or even understanding from the US parent for the very different trading and operating environment of the UK – especially when, as is the case with Rainsbrook, they were not making a profit. (I’ve seen critics denounce MTC for making money while failing the children in its care: incredibly, it didn’t.) I suspect the UK business was not regarded at all positively by the American parent, especially after the failure of the bid for Wellingborough prison, and the collapse of the probation contracts.

Then there is another failure, equally fundamental to a good contractual relationship. Incredibly, MTCs reaction to the inspector’ comments, and (it would seem therefore) Buckland’s decision to withdraw all children from the unit, is to say that they are wrong! They said :

“Given the previous positive assessments, including Ofsted’s follow up visit in January, we were very surprised to receive Ofsted’s feedback at the end of last week’s inspection. We have a number of concerns about their approach and ultimately the conclusions they have reached. We plan to vigorously challenge this as we go through the fact checking process”

And this is MTCs’ preferred style – confrontation, not contrition. We’ve seen they told the inspectors to their face they were wrong – that the children were wrong about what they were actually experiencing. Mulholland then upset the Justice Committee by declaring that MTC would only accept Inspector’s recommendations they thought ‘fair and grounded in evidence’– an exceptionally foolish thing to say, in the circumstances. Likewise, in the recent competition run Wellingborough prison, when their bid was unsuccessful, they immediately threaten legal action against MoJ. (Again I suspect this comes from the very different American background, where there are many possible customers, so you can afford a fight – here, one only, and you can’t.)

The relationship between a prison contractor and its customer is a subtle one. Relying just on the formalities of the contract is not enough. These contracts are long term – typically 15 years for prisons – and inevitably, in prisons, there are problems, inevitably, requirements change, and inevitably, sensitivities to be managed with ministers, with the media. So there has to be some sense of partnership, and partnership must be based on mutual trust and understanding of each other’s position, without of course losing sight of their fundamentally different roles.

MTCs track record of assuming such an adversarial role – and so quickly and so publicly – suggests to me that it will not be possible for them to enter into the right sort of long-term relationship with MoJ as customer. I am not, God knows, saying MoJ is always right. And in fact, I have sympathy for the stance that what is to be done in an institution should be determined by MoJ as customer, not by an outfit whose role is inspection and which is not charged with considering the resource consequences, feasibility or effectiveness of its recommendations, nor considering other approaches. But it’s the bull-headed way MTC charge at its critics frontally and publicly that is so unacceptable.

For all these reasons – the failure over many years to provide a decent environment for children, the failure over a long period to do what they said they’d do, the failure in the basic management grip on what is going on in the institution, the high turnover of staff and mangers alike, the lack of understanding of work with children, and the ready assumption of a legalistic, adversarial relationship with MoJ and the inspectorates – it seems inconceivable that MoJ can now ever offer MTC a contract to run any custodial institution.

MTC is currently on the MoJ’s framework agreement to enable it to bid to run new, 1800 place adult prisons. It should now be removed. MTC has no prospect of significant further business in the correctional services of the UK. And that means, looking at its accounts, it would then no longer be viable in the UK. It is finished.

The failure of the MoJ

A truism to which I often return, so often ignored by those criticising the private sector, is that when a service is being supplied under contract, failure by the contractor very often reveals failure by the customer also. Failure to properly appraise the supplier before contract, failure to specific the service properly, buying a service too cheaply, failure to get the commercial terms or performance sanctions right, failure to manage the contract properly, failure to deal with failure, failure to ensure a competitive market. As I note in my book, most of these have applied at one time or another to the market in corrections in the UK.

And this applied in spades to the Rainsbrook saga. Something the Justice Committee understood:

‘The Ministry of Justice, Youth Custody Service and HMPPS are equally responsible for some failings at Rainsbrook because of significant and fundamental failings in the way they have overseen what happened there…. the YCS and MoJ manifestly failed to understand what the conditions were at Rainsbrook…and it is a question that goes wider than..…one custodial institution.’

The inspectors also understood this. They told the Committee:

“You cannot lay this solely at the door of the provider. The YCS when it contracts for a service does not absolve itself of responsibility for making sure the service is delivered…”

I set out here different ways in which the MoJ, in which I include the YCS and HMMPS, failed to do their job as customer for Rainsbrook and for youth custody services generally.

1. They did not know what was going on

This is perhaps the most extraordinary thing: that MoJ did not know that children were being locked up 23 1/2 hours a day. Of course, MTC consistently misled them. But – here’s the thing -the great strength of contacting for prisons in the UK, unlike the US, is that the customer has a permanent staff of monitors within the prison. At Rainsbrook, there were three YCS monitors working fulltime inside the institution. Three, full time! With just 54 children! Their failure to notice what was happening is even worse than that of MTC managers, because the monitors were there only you monitor what was actually happening. What on earth did they do with their days – in this tiny, tiny institution – is beyond comprehension. (MoJ’s response on this is a Civil Service classic: to appoint a fourth monitor!)

2. They extended the contract in 2020 - despite MTCs serious failures documented by inspection after inspection

The Justice Committee were perplexed by this, but, as with so much of this story, never got an answer from the MoJ. It is surely linked to MoJ’s other failure, their endless dithering over the future shape of youth custody, see 4) below. MoJ were perpetually ‘planning’ to replace STCs, having already closed 2, but are still years way from doing so. In those circumstances, no other provider would take on the poison chalice of Rainsbrook, two operators already having failed. Nor could the Prisons Service step in, because the whole point of STCs was to be an alternative to mainstream prison culture (and the absorption of that culture into Rainsbrook was part of the reason it failed).

3. The YCS failed to use the contract to push MTC into doing better

As I’ve said, a good contractual relationship doesn’t rely solely on contractual sanctions when dealing with persistent failure. But a time comes when they should be used: they get the attention of senior management in the company because it’s all lost profit (4). My book showed this in relation to earlier failures by prison providers. And in the case of an institution which has failed so completely for so many years that the customer withdraws all business, you’d expect significant financial penalties. Well, the grand total for the 5 years of MTC’s contractual failures at Rainsbrook is…£76k. Against a total contract value of £50 million. An irrelevance. I’ve FoI’d the details, but expect to be stonewalled – this Government has set up a unit specifically charged to obstruct FoI requests. So, I can’t say whether the fault was in the way the contract was written or the way the contract was managed, but either way, it makes a mockery of contracting. (By comparison, the operator of the now closed Medway STC was fined nearly £1 million.)

4. MoJ have dithered for years about the future of youth justice

Following the Taylor report in 2016, the Government accepted his recommendation to replace STCs with ‘Secure Schools’ and proposed two pilots would be opened, one in the north, the other in the south of the country (see Justice Committee's summary in their report on the future of youth custody, here ). They said the one in the south would open in 2020. That was then postponed, to 2022. And postponed again, to the end of 2022 (‘working towards’ December 2022, so let’s be clear, 2023). Seven years after the report. Never mind the points made by critics, that 1 or even 2 are not remotely enough, that there are still huge questions about what they will be like. This timetable means that STCs cannot be fully replaced for the best part of a decade after Taylor’s recommendations were accepted (certainly a decade after Grayling announced 'Secure Colleges' would be the future of youth custody, in 2013 - on which he spent some millions before cancelling 2015). And still MoJ cant spell out how they will be different from STCs (5).

The reason for the delay isn’t, as often with prisons, finding a site, nor planning consent – they are using the site of an old STC, it’s ready and waiting – but because MoJ let the contract to a charity only to find that….. a charity can’t legally run such an institution. They seemingly hadn’t thought to check.

This delay echoes the truly pathetic failure of the MoJ to deliver on the promise of 9 new prisons with 10,000 new places, originally made in 2016, of which 5 were to have opened last year. In actuality the first will not open til 2022. That delay was also self-inflicted. MoJ believed they could only afford the programme through Private Finance. But HMT had decided to drop PFI. That meant a long and – of course! -doomed paperchase to persuade HMT change its mind.

5. The original choice of MTC to run Rainsbrook

As I say, MTC is an American company. When I was FD, we were dubious about appointing an American company as prison contractor, because of the very different culture of American prisons. MTC has since tried several times to enter the prisons market here and has consistently been rejected, most recently for the Wellingborough contract. Yet the YCS nevertheless appointed them to the far more specialised, notoriously sensitive job of looking after troubled children, of which the MTC had seemingly no experience, certainly not in the UK. (This is why, in my book I argued that an STC should never be a new operators first experience of running a custodial facility). Of course, G4S had already failed with its STCs, it is possibly that none of the other UK custodial operators – Sodexho, MITIE - wanted to get involved. Nevertheless, appointing MTC turned out to have precisely the consequence one might have predicted, a failure to understand the specialised work of STCs.

6. Organisational complexity

I do not know, but I suspect another factor is the labyrinthine structures and relationships with the MoJ. When I was FD of HMPS, things were blissfully straightforward. We held all the prison contracts; we had the procurement people and the contract managers and the operational managers; we decided, subject to ministers, what prisons should be asked to do: we decided on the shape of the make and how and when it should move forward. And, I may say, we made a fair success of it (little of that down to me, I should say – I had just very able procurement people).

As far as I can see for youth custody, the contracts are held by the Youth Custody Service, they rely on MoJ for procurement, someone in the MoJ decides on policy and on development of new operating models, the YCS answer to the head of HMPPS even though HMPPS also supply custodial services to the YCS….plenty of opportunity there for accountability to diffuse.

Note: what is the difference between the failure of MTC, and the failure of MoJ?

Come on – you know this! It is of course that people at MTC will lose their jobs, while no one in the MoJ will suffer the least consequence. That, Buckland has already made clear, at his appearance before the Committee. They never, ever do.

Why I've changed my mind on contracting for custody

My book, published in 2015, argued the case that competition for running custodial institutions worked to the public good. I think I now have to revisit that conclusion. Not because I think contracting out inherently wrong, nor because the private sector always does badly – in fact, at present, privately run adult prisons are doing better than publicly run ones. But because I have come to the conclusion that the MoJ is institutionally incompetent as customer. And as I’ve said before, an incompetent customer sooner rather than later leads to failure by the supplier.

As it has with contracts for probation, with Birmingham prison, with facilities management, with electronic tagging, now with Rainsbrook, and with the replacement, Secure Schools.

The catch 22 of outsourcing : a Government that isn't good at managing services is probably not good at managing outsourcing.

Afterword: the curious incident of the dog in the night time

And what of Barnardos, paid to supply an advocacy service for these children on site? It seems it did not bark…

UPDATE 22 JUNE

MoJ has just published here a further letter from Ofsted which explains why Buckland had to act to remove all children from Rainsbrook immediately. So much for MTCs extraordinary decision to publicly challenge Ofsted's findings. I doubt I've ever seen a more damning report, and that's certainly saying something.

Julian Le Vay

NOTES

1. About £160, 000 per occupant per year, or 4 times the cost of a place in an adult jail, PQ, 23 May 2018. Secure childrens' homes cost even more, around £180,000 - £200, 000 a year per place. Most bizarre thing is, no one has ever properly evaluated either of them, despite these eye watering amounts.

2.The Committee's report contains the correspondence on the Urgent Notification. 17th report HC 1266, Rainsbrook Secure Training Centre. Can be found here.

3. MoJ wont let us know actual numbers. Commercial secret. Or that’s what they say now – in the past they freely published these figures. See

4. For those who accuse MTC of profiting through maltreating children: it appears from what they said to the Justice Committee that MTC are making a loss on the contract.

5. For those who appreciate the ebb and flow of history, a mordant account of the endless circling of policy on youth custody round 'punishment' or 'care' can be found at: Hagell, A., and Hazel, N.: 'Macro and micro patterns in he development of secure custodial institutions for serious and persistent young offenders in England and Wales', Youth Justice 1 (1), 2001