UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1679-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

The Budget and Structure of the Ministry of Justice

Tuesday 6 December 2011

Julian McCrae and James Page

Juliet Lyon and Mark Stobbs

Evidence heard in Public Questions 1 - 70

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Oral Evidence

Taken before the Justice Committee

on Tuesday 6 December 2011

Members present:

Sir Alan Beith (Chair)

Mr Steve Brine

Mr Robert Buckland

Jeremy Corbyn

Ben Gummer

Mr Elfyn Llwyd

________________

Examination of Witnesses

Witnesses: Julian McCrae, Director of Research, and James Page, Senior Researcher, Institute for Government, gave evidence.

Q1 Chair: Welcome, Mr Page and Mr McCrae from the Institute for Government. Mr McCrae, you are the Director of Research, and Mr Page, you are a Senior Researcher. Thank you for coming in to help us in our work on the budget and structure of the Ministry of Justice. This is the first evidence session. It is a core task of Select Committees to examine the efficiency and competence of the Departments they are scrutinising, and we spend a lot of our time discussing subjects, but we thought it was time we had a proper look at whether the Department is geared up to the jobs that it has to do.

By way of introduction, as I understand it , the study you did-we have the report here- and all your work has been focused not on the po licy issues which arise in the Department but on precisely what I said earlier. Is that right?

Julian McCrae: Yes; that is exactly right. The Institute looks not at policy issues of government but at the mechanics of government and how the civil service and Whitehall generally take those policies and implement them and, indeed, how they go about the process of policy making itself.

Q2 Chair: Given that there is a programme which has this rather grand title "Transforming Justice", what has it achieved so far?

Julian McCrae: The time scale over which we have looked at the Department goes right the way back to 2009. These extremely large-scale transformations-which is the word people tend to write about, and it is, as you say, a very grandiose term-tend to be measured in numbers of years in how they get from start to finish. The context for the Department is one in which, in 2009, there was a very clear realisation of the consequences of the fiscal situation for the forthcoming budget of the Department. But, interestingly at that time, unlike in a private sector firm where that would immediately translate into a crunch in your cash, it was another year and a half or more before the spending review set the cash reduction for the Department. Up to that, the Department had been going through a phase of planning for and working up to the options that it would have to implement. The last time we looked in depth at the Department was in January 2011, when the Department was moving out of that planning phase and into the implementation, crunching through how to take those savings out of the Department and what that meant.

To come back to your question, Chair, in one sense the Department has achieved relatively little in moving the Department to where it needs to be by the end of the spending review. In another phase, and we might go into this in a little more detail, it has moved through the preparation phase in preparing the Department for that change quite a long way. There are strengths and weaknesses inside that which I think are picked up in our report, and I am happy to delve into them in more detail as we go through this.

Q3 Chair: What are the main means by which progress is measured towards the achievement of the programme or budget?

Julian McCrae: The principal means will be the budget of the Department. The spending review settlement is very clearly at the forefront of everyone’s minds.

Q4 Chair: You keep using the word "programme". I am not sure if that is the right word. It started before the spending review.

Julian McCrae: Yes, indeed. In terms of the final outcomes for all of this, the cash totals are the driver, and the Department has been trying to layer on top of that some measures of what "better" means for a justice system. If you think about what a transformation programme can be judged on, essentially "Did it hit those outcomes?" is the ultimate test for it. In three or four years’ time, did the Ministry take out the amount of cash the spending review requires it to take out, and did we have a justice system that was in any meaningful and measurable sense better than where it is now?

To date, in the Institute’s work, we have been looking at what you can tell from the way the Department is setting itself up and managing itself to take on that task, in its planning, bringing in the people who would have the skills and the ability to achieve that, and in being clear and engaging people who are working for it. It is in those kinds of ways that you prepare and take through this change. How has the Department been doing and how is it appraised against that?

We have not used hard metrics. We are not giving the Department a score out of 10. The methodology has been far more to say, "These are the types of things you should be looking at. How are you doing on that? Indeed, how do your own people in the Department feel you are doing in terms of the challenges they face in their day-to-day jobs?"

Q5 Chair: What is the role of "Transforming Justice" as a concept? You have just described a number of things which might fall under it such as getting the right people in place and changing some of the structures. Is it in some way psychologically important to maintain the pace of improvement-an almost necessary myth that reminds people they cannot simply carry on as they are but they have to do things differently?

Julian McCrae: At its most basic level "Transforming Justice" is a brand. I do not think "myth" is quite the word. If it is simply a myth, people will not-

Q6 Chair: It might be a better word than "brand". I associate "brand" with Campbell’s soup.

Julian McCrae: The important thing about Campbell’s soup and why it works is that you like the soup. The brand is just the packaging device for it. "Transforming Justice" as a phrase is the packaging device for, "Do you have something that is real to the people in that Department?" which is how you are going to take an organisation that extends to about 90,000 in its largest definition of its headcount and change that in a way that ensures it stays functional and produces the cash savings?

In a sense, there are various approaches to doing this kind of transformation which different companies, organisations or businesses have used, but it is very common to try and have that overarching label that allows people to see that what you are doing in your own job is part of a bigger whole. It is about how the overall aim of the organisation you are working for is being improved. In a sense the "Transforming Justice" label is less important in this than the sense that we pick up of "better for less". Is it that what people credibly believe they are doing in their day job is going to lead to a better justice system, or is it that that is just branding in itself and it is really going to be a worse justice system and a PR exercise? The latter will not motivate people. The former is almost certainly necessary and entirely vital if you are going to keep people motivated across the number of years this will take.

James Page: It might be worth adding that part of the point of a brand is also to have a few key messages that go along with that. It is getting those messages through the organisation, as Julian says, to 90,000 people. It is a huge task. There has been a kind of beginning at the top. All of our research suggests that all of the key leaders really understand the depth of the messages and are able to articulate what "Transforming Justice" is all about. The real importance is not just building that at the top but then how you push that down through the organisation and make sure that those 90,000 understand those simple key messages so that you can see how the new ways of working fit into a new Department and a new way of doing justice.

Q7 Chair: Like "better for less".

James Page: Indeed.

Q8 Mr Buckland: I well appreciate your remit and we do not want to get into arguments about whether the perceived benefits of creating MoJ were right or wrong. Let us assume that they were right for a moment. It was all about bringing together prisons, probation and other machinery of justice Departments into what is now one of the largest Departments in Whitehall. Do you think that the perceived benefits of bringing together all of these structures and agencies are being realised now, four years on?

Julian McCrae: I want to make a broader comment about the rest of the Institute’s research. We are professionally sceptical about reorganisations inside Whitehall delivering benefits. It is much easier to move the Departments about than it is to realise, as you say, the synergies between those new organisations. If you look at the process from 2009 onwards, some of the benefits that one might expect from the creation of a single organisation out of the disparate parts from which the MoJ was formed are really taking place. It is one of the real benefits of the process they had to go through. It is probably a wider reflection for Whitehall and government in general that it took the imminent spending crunch to drive some of those things that, more normally in a corporate world, you would have expected to occur around the time you did your mergers or demergers. I do not think that is an MoJ-specific point; I think that is a general point about how government does these things.

Q9 Mr Buckland: You said the drivers were the cost savings. Using your word "synergies", do you think they are there now or is it still work in progress?

Julian McCrae: I think the organisation has come together. One of the things we talk about quite a lot is how the senior leadership team of the organisation has moved from, essentially, representatives of their own areas of the business, in loose terms, to thinking corporately about what the Ministry of Justice as a whole has to achieve and how the different parts work together to achieve that. That has been a very big change. A lot of the internal savings are predicated on realising synergies in the more usual corporate sense of taking the various functions that are duplicated between the different operations and reducing those down to being done once, and that is a fairly large chunk. It goes outside policy; it is not about policy. Any organisation would want to do that.

It is too early to say. These are large-scale changes. It is very easy to take costs out, but can you still do the task or the job you are supposed to be doing if you take the costs out? It is too early to say whether they have realised them yet.

Q10 Mr Buckland: That is a sort of Zhou Enlai answer, isn’t it? It is Zhou Enlai’s famous remark about the French Revolution. "What is your view of the impact?" "It’s too early to say."

Julian McCrae: It is too early to say, but it is not quite in 200 years. Over the next 12 months or so you will have a very good idea. We intend to go back to the Ministry and see, so I should have a better and more precise answer to that the next time round.

Q11 Mr Buckland: Moving on to the Department’s relations with other Departments and agencies, the need to work more effectively with them is demonstrably clear, whether it is the MoJ or any other Department. Do you think progress is being made there? If not, what do you think the problem is?

Julian McCrae: We observed in the original report the degree to which, internally in MoJ, a lot of bringing together the senior leadership team was about the Department doing things quite differently from the traditional way that Whitehall works. There was a lot of emphasis on getting people just to work together on the same problem and think about it from different perspectives jointly rather than in an adversarial way. The cross-Whitehall element was strikingly similar to how Whitehall traditionally operates. There was very little attempt to change the ways of working that were going on. I don’t think "Transforming Justice" in its broad sense has done much to improve or worsen the long-standing and well-observed silo nature of Whitehall. It has been very much an internal-to-the-Ministry process where it has been different rather than in its external relationships.

Q12 Mr Buckland: I will give you the example of mental health, where the Ministry has to work with the Department of Health to pilot an improved position for mental health treatment. Are you saying that "Transforming Justice" is not addressing that particular area, and therefore we are left with good old-fashioned ministerial willpower to achieve cross-departmental working in areas such as that?

Julian McCrae: I do not think there is a change in the way that the cross-departmental working is going. Because we have not looked at the policy side, I know little about the actual policy linkages with DH and how that is operating in its traditional sense. It is certainly right that this has not been a transformation in the relationship between the Ministry and other Departments, but then the Department did not really set out to do that. In some sense, it is very difficult to change those relationships unless the other side and the whole of Whitehall is moving to a different form, which of course is in the interests of the Institute but not particularly this piece of work.

Q13 Mr Buckland: Finally, they have to get the participation and involvement of the legal profession and the judiciary, because they are key, in order to make sure that changes are implemented on the ground. How successful do you think the Department has been to get them to buy in, as it were?

Julian McCrae: We have not done specific work with the judiciary. I suggest they should speak for themselves as to how they believe they are engaged in this. From the departmental side, one of the things we constantly return to as an area of focus in this work is that you cannot change the justice system simply by the willpower of the people in the Ministry. The engagement of the judiciary, as we know from the reports, was very much at that top level, to bring in the senior judiciary gently into this process. There are constitutional issues for the judiciary in how they can be involved in anything along these lines. So the Department has handled that relatively carefully.

The issue we certainly have not seen in the work we have done is more broadly the wider linkages to the judiciary. There are a large number of magistrates in the country and I suspect the engagement of that has gone more through the Courts Service than a central initiative in "Transforming Justice" which we were looking at. As I say, it is not a specific. We have not looked at the judiciary and asked them their views, so I cannot give you a definitive answer to that question.

Q14 Chair: Did you look at all at how the Courts Service had developed and whether it had become integrated with the Department?

Julian McCrae: One of the observations we would have is that both courts and probation at that departmental Ministry level have become much more integrated into a way of thinking that what happens in the courts matters to probation and the prisons. That joint thinking at the Director General and the Director levels in the Ministry is much stronger now than it was. Again, I have to disclaim. We have not talked to people working at the front line of the Courts Service about their interactions with the Prison Service. There is a lot of work in this area and with the police, which would be the other key area.

Q15 Chair: We will come on to that aspect of cross-departmental working later. I was thinking, in terms of the Ministry of Justice side, whether the Courts Service had become effectively integrated, with the caveat, of course, that it has a special role in relation to courts.

Julian McCrae: It is much more integrated at the top level of the organisation. In 2009 these were very disparate groupings with very disparate management. That has come much more closely together into a single, clear, centralised management that understands what the Courts Service has to achieve in order to help other parts of that business take out the money. That is a very clear move forward for the Department over the last two or three years.

Q16 Mr Llwyd: I have one or two brief points. Could I draw your attention to page 11 of your report? You list four areas where you say the MoJ plan to reduce budgets. The Courts Service is one, with the closure of magistrates courts and county courts. The Justice Secretary gave evidence to us. He said that those closures were nothing to do with costs but were about streamlining and were not cost-driven. He must have come clean with you at some point.

Julian McCrae: I will leave the Ministry to comment on its own budget plans. We have not done an assessment of their budget plans. As I understand the Courts Service changes, this is part of how you think about "better for less", and the justification for a lot of the Courts Service changes was about the efficiency of the court operation. That was certainly central to the thinking.

I can comment, however, that when the officials were looking at how they could change how the organisation operates and how they could make it more efficient and effective, that was at the forefront of their minds. I suspect, without commenting on what the Justice Secretary has said, that the efficiency and effectiveness of those courts and what you do to drive that was what people were putting first when they were thinking about the policy implications, rather than starting from the premise, "How do we take out as much cost as possible? Let’s simply shut the most expensive courts, regardless of the impact on efficiency."

Q17 Mr Llwyd: On the issue of legal aid, which is the next one down, have you evaluated the possibility that there will be very little saving at the end of the day if litigants in person turn up in droves, as many judges have told us is likely?

Julian McCrae: On the scope of this, we are not evaluating whether the policy proposals work out. We are looking at whether the Department knows whether or not it is realising those savings. If it turned out that it had predicated its plans on a set of savings and it turned out that those savings did not occur, would it have the capability inside to know that that was happening? Secondly, would it have the capability to think, "What do we do now to re-plan and figure out how we can hit the spending review while still trying to improve the justice system?" Those are the two things that we are looking at inside this.

Q18 Jeremy Corbyn: Following the points made by Mr Llwyd just now, when you are looking at the costs of legal aid and the alleged savings to the Department, are you looking at it in a departmental budget in the sense of the effect on the Ministry of Justice, or are you looking at the multiplier effect of legal aid cuts? For example, if you cut benefit advice, that eventually costs the Department for Work and Pensions far more. If you cut any other form of advice, you will have exactly the same multiplier effect. On the Law Society’s estimates, it goes from 250% to 800% increased costs on other Departments by cuts in legal aid. There is an issue here of overall public spending, but also, of course, there is an issue of the misery created by people not getting benefits to which they are entitled.

Julian McCrae: That is a very good point, which goes back to some of the earlier questions. The specifics on the MoJ transformation are specific costs relating to that Department. Clearly, other Departments have their own budgetary targets. One would hope that a well-functioning Whitehall was putting those elements together.

Q19 Jeremy Corbyn: We all dream of a well-functioning Whitehall, and I am sure you do too.

Julian McCrae: I do indeed.

Q20 Jeremy Corbyn: But there has to be an interrelationship of spending. For any one Department on any subject, they say, "We will cut. Never mind the consequences to anybody else." We all go through this in our constituency casework with local authorities saying, "Your saving is somebody else’s cost," between health and local government, for example. Surely, as experts in this area, you must be trying to force those quite hard lessons on Whitehall as a whole.

Julian McCrae: That is definitely the Institute in its broader sense, but the scope of this particular piece of work is within the Ministry. Where the Ministry has moved on quite a considerable way is in the appreciation of how, within the Ministry, the consequences for different cost bases and different changes occur. I am not saying there has been no cross-Whitehall process that looks at the cost between Departments. We have not looked in specific detail at that, but that cross-Whitehall process resembles what it looked like throughout the rest of Whitehall over this period.

Q21 Jeremy Corbyn: But even within the Ministry there is a huge saving. If you give somebody good legal advice, they end up getting probation or community service. If you give them bad legal advice, they end up in prison. Who pays for that? Where is the cost of that? There is an internal cost, never mind the external cost.

Julian McCrae: Yes. On the internal cost, a lot of the work has been predicated on precisely those types of savings in various policy contexts. The entire notion of the rehabilitation revolution, which is a slightly different example from the one you are using, is about whether, if you can put the investment in, for want of a better phrase, up front, you can save yourself costs within the justice system at a later date. On legal aid, again, you should ask people who are experts on legal aid reforms. The principles that underlie it and any claim for it to be better have to be about managing to divert people away, otherwise you end up with a system that is, at best, "less for less", and, at worst, "less here, more there".

One of the things we refer to in the latest report is the need for real clarity about what exactly you are trying to achieve and how you are measuring that. The Department has made some progress on that compared to where it was two or three years ago. For the scale of change here, understanding whether you are pushing costs round the system is really quite a crucial point, and therefore, as I was saying in the earlier question, the Department needs to be able to see those things. That will be something that we will want to look at in the next report we do. Does it actually have people who understand the effects and the ways of measuring those effects that it can bring back into its planning?

Chair: I have kept Mr Gummer patiently waiting for quite a long time.

Q22 Ben Gummer: I would like to look at the spending review and the Department’s capacity to implement that. It is rather looking forward from "Transforming Justice". In the National Audit Office’s report of November they talk about the financial management of the MoJ where they note that they have achieved considerable improvements in financial management while reducing the number of finance staff by a quarter. "The Ministry’s work on improving financial management has therefore delivered good value for money." By analogy , the Ministry of Justice should , therefore , be able to achiev e a 23% cut in its budget while producing better services if it can do it in its finance d epartment . Do you agree with that?

Julian McCrae: I have no basis on which to judge one way or the other. The Ministry has set out a set of plans. It intends to achieve those. Effectively, you had a lot of functions in the old Departments that it was merged into. Some of the savings that you are seeing there are savings from precisely that and getting some of the synergies from that previous merger that were not realised.

It is difficult for me to say exactly because I am not the judge of this. The Department has signed up to a set of spending plans that it intends to deliver over the course of the period, part of which comes out of finance functions and core functions and part of which comes out of other functions of the Department.

Q23 Ben Gummer: On the central question of "less for less" or "better for less", it seems from your report that the majority of people interviewed were very much "up for it", if I can put it in technical language. Then it started to fall down a bit when people were asked, "Given the obstacles in your way, would you be able to do it, and are you going to be rewarded appropriately?" When it came down to the personal incentive for people to realise the change they knew was possible and necessary and that they wanted to make, it then started to fall apart a bit. Can you explain why that is?

Julian McCrae: We are very interested to see how at least three of the things that we highlighted in that report play out. As you say, one is the personal incentives. It is quite usual for people who are engaged in this kind of change to see a very large personal return. The traditional private sector route would be to give them equity stakes within the business and incentivise them very heavily. It is quite clear that in the civil service that is not a route that is going to occur. That does not mean that people do not get rewarded. It means it is quite likely that people will leave, if they have been performing very well, to get higher-paid jobs elsewhere on the basis of their record. Retention of key people will be a key issue for the Ministry.

Q24 Ben Gummer: I am just not sure if I agree with that analysis. If you take Tesco, where the majority of their employees are on low and medium-low wages, not incentivised, if you ask someone who packs bags or is on a check-out, "What should we be doing?" they would talk about the customer first and about value for money for the business. They have five key business values which they all know. Why is that not possible within the MoJ?

Julian McCrae: Your point is exactly right. If you look at how you motivate employees, financial reward needs to be there, but it is not the thing that really motivates you to change an organisation. I have to believe that what I am doing is going to make something I care about better, which is at the heart of this. In the parts of the organisation we have been looking at, that sense of people coming together to change an organisation and make it better is very strongly there. I only referred to the reward because you mentioned it in your question.

The other two things I would highlight, which are probably more important in this space, are whether the Ministry has got the way it runs its governance right and whether people are able to get on and make the changes at the working level in the Department without referring back to head office all the time. That is something where the civil service generally has a problem. It tends to be a very centralised organisation, which does not necessarily work in this context.

The second one is just the experience and the skills to do this. A lot of people who are involved in this will be doing this kind of work for the first time in their career. That is a very real question for them.

Q25 Ben Gummer: That is a very reasonable point. Mr Page, when you did these interviews, did you ask people what they felt "better" to be? Was there a coherent vision?

James Page: Let’s remember that we were talking to the senior leadership team rather than the 90,000 within the Department. Let’s remember the scope of who we were talking to. There definitely was a sense of "better", but there were a lot of different versions of "better", depending on what you talk about. There is not a single set of outcome measures that everyone agrees. You can say that reducing recidivism would be a great outcome and that is fantastic, but a lot of the things we were talking about were efficiency savings or a more efficient court system and things like that. One of the things that we keep challenging on is whether that sense of "better" is articulated. The sense of "less" certainly is. It is obviously clear what the financial targets are that need to be delivered and that motivates everyone, but does everyone have a vision of what that "better" means? As I say, it is patchy and differently applied in different places.

Q26 Ben Gummer: Did anyone spontaneously use the word "user" or "consumer"?

James Page: There is definitely a sense of thinking that the process would work better. Whether it is designed specifically around a user experience I am not so sure, but there is definitely the sense that the system does not necessarily work perfectly in all settings and there is a lot of scope for improving that, as well as saving a lot of money by doing so at the same time.

Julian McCrae: With "user" and "consumer", it is difficult in the justice system to know exactly who you are talking about. Is it the citizen looking for justice, the victim of crime or the person who is going through the justice system? I would say that the Department, when it was talking about "better", was starting from what a justice system is supposed to achieve for the people of Britain. That is a key distinction. That is the motivator of the people and makes it different rather than what suits a bureaucracy. Most of these people have worked throughout their careers in a bureaucracy. They know the distinction between the two and they are far more motivated by, "What can we do to make this justice system better for the UK?" rather than, "Have we made life easier for ourselves?"

Q27 Ben Gummer: But that is a subjective judgment in itself.

Julian McCrae: It is a subjective judgment, but I think it does come out quite strongly from the things that people were saying in response to the questions we were asking about "better". You asked what people meant when they talked about "better". It was much closer to that than, "Life will be easier if we can just"-

Q28 Ben Gummer: I have one final question. If Ministers were able to identify in order of preference users or consumers and said, "This is how we measure ‘better’," would that give greater focus to the outcome measures of which you are talking?

Julian McCrae: The question, in a sense, is almost prior to that. One of the challenges for the Ministry, certainly going back to January 2011, was, "What are the outcome measures you are using?" and then as a secondary question, "Are these as good, or could you use other incentive mechanisms rather than just measurement?" You will be aware of the entire debate inside Government about how far you can go with targets in management of performance and how much you should use markets and incentives from markets to drive change. At the moment, in response to the question, "What does ‘better’ look like?" we got some reasonably coherent answers to that. "How is that going to be measured?" came back, as James said, very rapidly simply to the cash savings as being the clear thing that was articulated. There was very little measurable about what "better" would actually mean and look like. That is always going to be a worry for any change on this scale, because you tend to look at what you are measuring rather than what you are not.

James Page: There is one small extra point as well. Some of the issues like payment by results, which is being taken forward by the Ministry, do have clear metrics and clear management information and evaluation built in. Effectively, you only pay if the recidivism rate goes down, for example. It is also becoming more hands-off. Do we have to have a nationally designed process and allow those who take on those challenges to design their own process to a much larger extent and to fit that around people? In that sense, there is a recognition of a much greater ability to be hands-off and let things be designed around those users, if that is the right phrase.

Q29 Mr Llwyd: In your report you say that the headcount reduction was generally thought to have been well handled so far, but there was a risk of the wrong staff being lost. What skills have been lost due to the reduction in senior civil service staff?

Julian McCrae: At this particular point we do not have the outcome on that. One of the things that is being conducted at the moment is the civil service Staff Survey. The key question there will be what has happened to the balance of skills within the Department but also what has happened to the motivation of people post this. One of the key things goes back to an earlier question about the finance function losing 25% of its headcount budget but improving its performance. That will be about which people left the organisation. Was or was it not the people who had clear roles within the organisation? Generally, you will see that through surveys of staff engagement because you will find that people who do not have clear roles within an organisation tend not to be very happy in their work life and tend to be more likely to take redundancy when offered.

The thing we are worried about is that you can get exactly the opposite effect if you do not design this right. People who know they can get their next job fairly easily-therefore, this is simply an extra payout from a redundancy scheme and you move on immediately to your next job-can also have very strong incentives to engage in a voluntary scheme. The question for the Ministry is which group overall the scheme was biased toward. I hope that makes sense. I am not sure I have quite answered your question.

Q30 Mr Llwyd: I appreciate it is a difficult area. Could you tell me what benefits you think have accrued from appointing senior managers from outside the civil service, or is it too early to tell?

Julian McCrae: There is a range of points at which senior management tends to come into the civil service. I will answer this in a more general way than just for the Ministry. You will tend to see people coming into the civil service from more professional backgrounds. You will tend to see them coming in as finance, IT and communications professionals who have worked round business areas. The work we have done here and, indeed, in other spaces shows that those people have quite a big problem in adapting to the civil service. While they bring quite professional skills into their professional areas, which really does make a big difference to the capability of the civil service, the sense that they move into organisations which harness those skills together is one of the things that they find quite difficult. Quite often in the civil service IT is slightly separate from finance, which is slightly separate from policy. That is probably one of the underlying causes of why we don’t do particularly well at IT or finance, going back to the NAO reports and things like this.

In a sense, how well they do and what impact they have are quite powerful factors within the professions; a lot of skills are brought in that way. But does it help the entire organisation move forward? That is one of the biggest challenges facing the civil service and the Ministry. How do you pull those groups together?

Q31 Mr Llwyd: I suppose I am building up to the question: are you confident that the MoJ does in fact have the capability to implement the next stages of "Transforming Justice"?

Julian McCrae: We highlighted in the report that, as an area on which the MoJ needs to focus, we will want to look at how they get enough capability into the organisation to make this change. There are two or three ways of getting capability. One is bringing people in from outside through recruitment. Another is training and developing your own staff internally. That one is probably the most important for the Ministry at the moment. The third one is to hire in skills through consultancy, which is something that the MoJ is consciously trying to do as little of as possible in "Transforming Justice" on the grounds, first, of budget, secondly, presentation, and thirdly, that it would end up without the skills in-house to do this if it was relying on an external resource. It is a more complex picture, but if you ask me whether I am confident, no, I am not in a position to be confident, but I am not unconfident. I think it is a huge issue for them to address.

Q32 Mr Llwyd: My final question is this. How has the Ministry of Justice been able to improve its evidence base for "what works" since 2010?

Julian McCrae: Historically, the Ministry has not been strong on analytics. That was something that was recognised in the capability reviews in about 2008. The approach they have taken to this has been quite interesting. Essentially, going back to your question on skills and capabilities, this is where they have hired in a set of skills around the analytical side. The Department they took most but not all of it from was the Department for Work and Pensions, which has historically been quite strong. If you go back to the capability reviews, you will find that they score quite highly on that analytical ability. The first thing was bringing in people who could perform and had in the past in the context of Government done analytical roles to pull together the information and data.

The second thing that they have done is to put in some of what are often seen by the civil service as sometimes second order functions far closer to the heart of decision making. The Director of Analysis is one of the key people in devising the programme of "Transforming Justice", making sure that her colleagues are using the same methodologies, data and work, and that things are consistent. The emphasis is coming from the top that this is part of what everyone needs to do and we cannot just leave the analytics to the analysts. Part of the whole machinery of working through what "Transforming Justice" means has been the second factor which has helped the Department to raise its ability.

As I say, I think the Department would accept that it has quite a way to go, as most Whitehall Departments do, in matching the type of analytical ability that you would find in some of the top-performing private sector companies where huge investment has gone into this over the last 10 or 15 years.

Q33 Steve Brine : We have already covered this. Bearing in mind the time, I will cut to the chase. It relates to cross-departmental working. Does the fact that the MoJ has a cross-departmental Minister help or hinder the Department?

Julian McCrae: I do not think it hinders it. I have taken it out of the MoJ report because it becomes a very specific person doing this job, and we have not done an evaluation of that. The Institute has long been in favour of greater links between Departments, but we are suspicious of things that look slightly tacked on. A cross-departmental Minister looks slightly tacked on to the system in Whitehall. In our report in 2009 "Shaping Up: A Whitehall for the Future", we were suggesting that, if you really want to pull together cross-departmental working and look at things that the Dutch have done, for example, creating Ministers who are not necessarily attached to Departments but who have budgets, because budgets are power and influence, with Ministers working cross-departmentally, it is very amorphous what the levers are for that Minister-

Q34 Steve Brine: Maybe you are just a suspicious chap, but what is your suspicion fuelled by? Surely, a modern Minister in a modern Government Department has enough to do. Is there a danger that one becomes a jack of all trades and master of none?

Julian McCrae: The danger is that you are going to concentrate on the thing that is the most immediate and precise to what you are doing. In this case the Minister has a very large portfolio, of which the cross-departmental Minister aspect is just one aspect. It is very difficult. This is not in relation just to Ministers. It has been done in Whitehall; you have civil servants reporting cross-departmentally. It is similarly extremely difficult to operate in those circumstances. What you need to do generally in these sorts of situations is to change the incentives at the top, not trying to compensate through creating new roles further down. It is a general point. We have not done a specific analysis. I am a suspicious chap in general.

James Page: It is what the levers are. Working to two Secretaries of State, should there be any disagreement on approach or anything else? What levers does a junior Minister have working across those two? It is a difficult one to answer. It is just a general question about what level you build that in at.

Chair: Thank you very much indeed. We are grateful for your help today.

Examination of Witnesses

Witnesses: Juliet Lyon CBE, Director, Prison Reform Trust, and Mark Stobbs, Director of Legal Policy, Law Society, gave evidence.

Q35 Chair: Ms Lyon from the Prison Reform Trust, welcome back. You are an old friend of ours and have given evidence to us several times before. Mr Stobbs, you are from the Law Society, which is, again, a body we hear a great deal from and we are very glad to. As you know, we are looking at the Ministry of Justice as an organisation with which you both deal extensively. In these sessions we are not looking so much at the policy but the capacity of the Department to do the jobs it has been given.

Do you have a different view from the Department about how it should be running itself and delivering on its objectives?

Juliet Lyon: The difficulty is fully knowing what the Department’s own view is. I need to say right at the outset that we are an independent group. We are not funded by Government. We would like to see ourselves as critical friends. We would like to see the Government particularly, through the Ministry of Justice, achieving a just, effective and moderate penal system. The comments I can offer are from that perspective. We are not of the Department or in the Department.

An observation would be that the Department is under extreme pressure. The Prison Service itself is experiencing unprecedented high numbers. I looked at the evidence we had offered to the Committee only a matter of a short while ago to discover that we had said the prison population was over 87,000. You will know that it is now over 88,000. The exponential rise is troubling everybody. There are then the budgetary pressures on the Department and seeing through a major justice Bill. We can see that it is under fire from a number of fronts.

Q36 Chair: We will turn in a moment to the significance of prisons and NOMS as a major element within the Department. I am going to ask both of you-and I turn first to Mr Stobbs-whether you are particularly aware of the "Transforming Justice" programme at the Department and whether, when you look at the Department, you see it in terms of that, or are you blissfully unaware that it is engaged in this programme?

Mark Stobbs: It would be too much to say we were blissfully unaware. We were certainly aware of its existence. I do not think a huge amount has been done to sell it to outside stakeholders. Reading the Institute for Government’s report, that gives some of the reasons why. It has been largely based on the way it works internally. The point we would make is that solicitors and the legal profession are key actors in the justice system. We are providing a lot of the services without which the system cannot work and which are crucial in obtaining a just society in making sure that people are properly represented, have proper advice and that the system works efficiently. Greater involvement of us would be welcomed.

Juliet Lyon: I would add that the headline, which people cannot argue with, is either doing "more for less" or "better for less". It is attractive as a slogan, but, given that that is a headline, we are disconcerted to see very little reference, as far as we can tell, to your previous report on "Justice Reinvestment", which arguably could be at the heart of such an exercise.

Q37 Chair: Leaving aside, as far as one can, the policy issues-although they become relevant when you look at the Department’s ability to develop policy and particularly its analytical skills-over the time you have each dealt with the Department have you noticed any difference in its capacity to do the job within whatever policy decisions have been made?

Mark Stobbs: I do not think I have noticed a huge amount of difference at this stage. There have been some things which, on the whole, the Department has done quite well. For example, it managed the problems with the riots earlier this year reasonably successfully. I suspect that was an emergency with everybody pulling together. I do not know whether the "Transforming Justice" programme had anything in particular to do with that. In terms of evidence-based policy making, we have significant reservations about what it is doing.

Juliet Lyon: We were very heartened by the Green Paper consultation exercise, which we thought was very thoroughgoing. We were slightly less happy with the end result in terms of what actually made the cut in regard to the Legal Aid, Sentencing and Punishment of Offenders Bill, but we felt that the way in which that consultation exercise was managed and the breadth of it was commendable.

It would be fair to describe our experience of different policy areas as highly variable. If you took, for example, women’s justice, the policy unit has all but disappeared. At one point there was quite a firm commitment to see through Baroness Corston’s review recommendations. A measured drop in the number of women in prisons is still achievable, and certainly was achievable at the time that commitment was made, but it has not helped that the policy unit has disappeared and there has been a lack of leadership at a sufficiently high level to drive through those recommendations. You only have to contrast that with the achievements for which the Youth Justice Board has been in part responsible. That is an interesting example of where the Home Office has played its part in relation to the way the police handle children in trouble. The Youth Justice Board is focusing very clearly on reducing the number of children entering the justice system in the first place, with the end result which is really to be commended. There is a drop in youth crime. Up until the riots, there was an enormous 30% drop in the number of children in prison. An arm’s length body or a body with the role of the YJB has obviously been able to achieve a lot. It is an interesting model. It nearly disappeared but it has not. It could be the model that would see a similar drop in the number of women in prison.

Q38 Mr Llwyd: Does the prisons element of NOMS exercise too much power within the new MoJ/NOMS set-up? If so, what restructuring of NOMS would you wish to see?

Juliet Lyon: Almost without a doubt it exercises considerable power. Simply in budgetary terms-I do not have the exact figures but I am sure they are available to the Committee-it occupies a huge space. Prisons have always been the day job. You could not envisage a time when a prison would not be allowed to run even if it was running at a minimal level. It would have to be managed and run, given the numbers it is dealing with. It is a huge machine.

You then start looking at levels of authority within NOMS. You see that very few people with probation experience are anywhere near the top in terms of leading NOMS. That does not mean that the people who are at the top don’t have a commitment to probation, because I am sure they do, but they do not come with probation experience. So, both in terms of hierarchy and in terms of budget, you have a disconnect.

That is particularly disconcerting given the pressure on the prison system. What Government figures from the MoJ are clearly showing is that there is an 8% improvement in terms of short prison sentences and similar offenders/similar offences compared with community sentences. Community sentences are outperforming short prison sentences by 8%, which is an achievement, but if the mechanism is not there to promote that and to provide more opportunities for the courts to have those community sentences available to them, you could argue that Government are not capitalising on their success. Consequently, they are dealing with this continual revolving door of short prison terms. The answer from our perspective is an unequivocal yes, prison does dominate, and other measures like community sentences and restorative justice, which was all over the Green Paper and to which Government have given a commitment, have not been taken forward in the way that they could be as yet.

Q39 Mr Llwyd: In general, does the split between the responsibilities of the Home Office and the MoJ result in an effective and more efficient service for the taxpayer?

Mark Stobbs: I find this quite difficult, in that we have very little experience of what happens after sentencing. We have noticed that there seems to be less ministerial time available for the pre-sentencing work. I would not say this has necessarily caused a major disadvantage, but you have a Department with significantly greater responsibilities so there is perhaps less time for some of the justice elements.

We have yet to see major advantages coming out of this. One of the major problems that practitioners have is when they see prisoners on remand. The Crown Prosecution Service is trying to implement a technology programme ending up with a digital system. It is going to be very difficult to achieve that if it is at the discretion of individual prison governors as to what bits of technology, if any, can be brought into prisons. Those sort of joined-up elements do not seem to have happened yet.

Q40 Mr Llwyd: The Prison Reform Trust has highlighted that Canada, for example, has an integrated and co-ordinated correctional service. What lessons do you think we could learn on departmental structures from international counterparts?

Juliet Lyon: In regard to the Canadian model, the person I would like to refer the Committee to would be David Daubney, the Chair of Penal Reform International, who up until very recently was working for the Canadian Justice Service, who could answer that more fully. We have other international examples from that particular charity, the PRI, which indicates that certainly in Russia, where prisons have just gone back into the purview of the Home Department, that is seen by reformers as a very retrograde step. That would be true for other countries. We could ask PRI to gather evidence on that. In terms of how the Canadian model works, certainly when that was working at its best-and David might say it is not any longer quite working at its best-it was a model where a more moderate justice system could be developed because the communication was so clear.

I did not answer you in relation to the split between the Home Office and MoJ. I remember Douglas Hurd, who was our President, saying that he had some concerns about dividing police functions from prison functions. I do not know whether he is satisfied that that is now fine. In terms of the way it is presented to the public, it would be useful to have better co-ordination between Departments, even if it was only in communications and public messaging. You don’t want a system which, at worst, is characterised by dealing with fear of crime, chasing people down, and then a parody about being soft on crime. A hard/soft divide which the press seem to be developing between those two Departments is not helpful. It might be healed somewhat by better and shared communications across those two Departments.

Q41 Mr Llwyd: This is a question for Mr Stobbs, I suspect. What issues need to be addressed to ensure that the Legal Services Commission executive agency provides an improved performance?

Mark Stobbs: There are three. The first is the dichotomy between a policy-making role in the Legal Services Commission and a policy-making role in the MoJ. We have seen over the last five or six years a battle at times between the two. It is very difficult for practitioners who have businesses to run to know how far individual initiatives are going to go when they are consulted on by the LSC, almost brought in by the LSC and then delayed or changed. That should be addressed by turning the LSC into an executive agency.

The second is in terms of the burdens placed on practitioners. You have significantly different contracts for different types of work, which require considerable paperwork and bureaucracy by firms. That is at a considerable cost and they do not always speak to each other. If you are a firm doing family, criminal and civil work, you have to operate a number of different systems. That is not a great way for small businesses to run

The third is in terms of its own administrative structure. Practitioners are in some cases waiting over six months to be paid for work. They will eventually get paid, but three times in the last two years our Chief Executive has had to write to the major clearing banks saying, "Please go easy on practitioners’ overdrafts because there are massive delays in the Legal Services Commission paying out to them." Again, it is difficult for businesses to run, provide services and plan for the future without this. We would urge a settled policy that would enable these firms to invest properly for the future. Even after the cuts, there is £1.7 billion of work here which the profession would want to use, but it needs to have the sense of stability that enables it to plan and provide quality services.

Q42 Ben Gummer: I would like to carry on talking about the relationship between external providers and the MoJ. We have already looked in some detail in this Committee at volunteer organisations, payment by results and so on. I will leave that for a moment and continue on about the LSC. Mr Stobbs, how would you characterise the relationship currently between the LSC and legal firms?

Mark Stobbs: There is substantial distrust between individual firms and the Legal Services Commission.

Q43 Ben Gummer: I probably need to phrase it better. If we use words like "customer", "contractor", "provider" and "subcontractor", how would you characterise that relationship?

Mark Stobbs: The relationship between firms is one of contracting with the Legal Services Commission to provide services.

Q44 Ben Gummer: What, therefore, are the legal firms doing on behalf of the Legal Services Commission?

Mark Stobbs: They are providing the advice, services and advocacy that it is the duty of the Legal Services Commission to ensure that there is provision for under the Act.

Q45 Ben Gummer: So the role that the Legal Services Commission performs is effectively to stand in on behalf of those who cannot pay for themselves in many instances.

Mark Stobbs: Yes.

Q46 Ben Gummer: Is the relationship between those who can pay for themselves and their contracting firms different or the same as that between the Legal Services Commission and their contracting firms?

Mark Stobbs: It depends on who the clients are. The Legal Services Commission, as any purchaser of legal services does, is entitled to say upon what terms it is prepared to do business, what standards it is providing and what it is expecting providers to achieve. It provides the contractual terms for that. They have their particular terms under the contract. Insurers, who equally provide bulk legal services, will have their particular contractual arrangements. Individual clients will go to the firm and again receive a service that is tailored for them. In terms of professionalism, you would not expect solicitors to provide a significantly different level of service from legal aid-

Q47 Ben Gummer: No; I would not be suggesting that. For instance, the Law Society has encouraged the MoJ and the LSC to formulate the way it contracts to protect small providers and to allow them to co-operate and participate in LSC contracts. Is that fair to say?

Mark Stobbs: We encourage the LSC and the MoJ to ensure that there is a proper spread of providers to ensure access to justice. Many providers are small firms and businesses.

Q48 Ben Gummer: The majority of them.

Mark Stobbs: In the legally aided sector, yes. Clearly, that is the fact.

Q49 Ben Gummer: To a degree the LSC agrees with that, doesn’t it? It is willing to participate with that kind of engagement with the Law Society.

Mark Stobbs: The LSC sees us as a key stakeholder representing the thousands of firms that provide legal services. It is difficult to negotiate with every single one. We try and provide assistance to the LSC which we believe will broadly-

Q50 Ben Gummer: When the Law Society makes a statement about the number of providers who are within legal aid contracts going down, does the Law Society see that as a good, bad or neutral thing?

Mark Stobbs: We would regard the crucial thing as ensuring appropriate access to justice.

Q51 Ben Gummer: Is the number of providers a proxy for it?

Mark Stobbs: It need not be. There is no reason why access to justice could not be provided by a suitable number of large firms. We do not try to favour one business model over another. There should be sufficient firms so that where there are conflicts of interest people have access to a suitable number of providers within adequate travelling distance from their homes.

Q52 Ben Gummer: My reason for asking these little questions before is because some members of the Committee might think that the LSC has a slightly conflicted relationship with the way that it contracts for legal services. On the one hand, it is a contracting body, as we were discussing at the beginning, but on the other hand, it overlays a rather confused policy patina which conflates number of providers with coverage, access and non-conflicts, and it has not properly resolved that, has it?

Mark Stobbs: Over the years we have been receiving mixed messages from the LSC about what it wants. At one point the flavour of the month appeared to be a small number of large providers. That seems to have changed in recent years. So far as we are concerned, the important thing is to ensure coverage.

Q53 Ben Gummer: As far as the Law Society is concerned, if access to justice could be ensured with, let’s say, 300 legal aid providers rather than 2,000, the Law Society would have no problem with that.

Mark Stobbs: We might have problems with individual members there, but we would need to ensure that there was the coverage and that people were getting the appropriate quality of advice.

Q54 Ben Gummer: But if there were, the total number would not be a problem for the Law Society.

Mark Stobbs: We would need to look at exactly what was being provided there. I doubt in practice whether 300 firms could provide-

Q55 Ben Gummer: Hypothetically, if it were possible to provide coverage of access, which is what we were discussing at the beginning, the number is irrelevant.

Mark Stobbs: I suspect the number of firms is irrelevant, though we would want to ensure that the number of people providing the advice was of the appropriate quality.

Q56 Mr Buckland: I want to move back to the issue of commissioning of services and the skill set within the MoJ in order to deliver effective commissioning of services, for example, where provision is made for community sentences. We know the area that we are talking about. Do you think at the moment that the Ministry has the capacity to reach the required standard? If not, what are your concerns?

Juliet Lyon: It is genuinely difficult to know that. It is an excellent question. It is going to be vital, because of the model that is emerging, that those skills are very well developed because there is a very high reliance on the capacity to commission properly and to have the oversight in terms of delivery to manage those contracts well. Our sense is that it is probably still "in development". It probably is not, for example, as highly developed as many of those who might be making application to be providers-in particular, the large private companies who have a much wider and longer experience of both bidding for contracts and internally managing those contracts. That is probably not a very healthy state of play, if that is true, because you would hope that the commissioner would at least have the same set of skills, if not more developed skills, than those making the applications to provide services.

Q57 Mr Buckland: It is not quite taking sweets from babies, but we are in danger of having that situation with large experienced firms that know their way round commissioning.

Juliet Lyon: Yes, I think there is a risk.

Q58 Mr Buckland: What would you say are the steps that need to be taken in order to minimise that risk?

Juliet Lyon: I do not think this is in our earlier evidence, but I was wondering about the role of various regulatory bodies. We have mentioned the NAO in relation to taking account of the reports that the NAO issues. The immediate regulatory bodies for prisons and probation are of course the inspectorates. They inspect to standards or expectations. I am not aware of a connection being made between what they are inspecting and what is being commissioned. It would be quite instructive to see if some links could be made, because, after all, what most of us would want would be the best standards and, if not the best standards, utterly acceptable standards. There is a worry that things can fall below standards, particularly on an economies of scale basis. If you get larger and larger, there may not be the attention to detail that you would hope.

Q59 Mr Buckland: What is the Law Society’s view as to where we are in the Ministry in terms of expertise?

Mark Stobbs: Our principal experience here is with the Legal Services Commission. We have had at least two very unfortunate experiences where the Society has had to judicially review a tender round because it was flawed, which suggests that the LSC does need to put more work into developing these rounds. There are a number of reasons for this. First, you are dealing with extremely difficult and complex procurement law and a wide variety of tenderers, many of whom do not have the expertise in tendering that my colleague was referring to. Also, they have been done in a rush. It is very heartening that the Government appear to have learnt from that experience by delaying the implementation of what they were proposing in the Bill for a year, recognising that they do need at least a year to get it right.

Q60 Mr Buckland: One of the problems has been the constant revolution, has it not?

Mark Stobbs: Exactly.

Q61 Mr Buckland: There has been no time in the last 10 years in which the profession or indeed any provider-let’s not forget the "not for profits" as well-has been able to plan ahead and see a clear playing field for four or five years, which is what you really need, don’t you?

Mark Stobbs: Exactly.

Q62 Mr Buckland: You just have not had that continuity. The LSC in its last report said that £120 million was spent on the cost of administration. That is all known about. Looking ahead to the successor-son of LSC-within the Department, what would your hopes be for that body in terms of commissioning and procurement?

Mark Stobbs: The hope would be that it would be able to streamline the contractual arrangements and manage clear tendering arrangements that the profession can rely on without changing goalposts late on. We would hope that it can produce a strategy for the way in which it wants legal services to be provided which practitioners can rely upon, not just for the five years of a tender round but for longer, so that businesses that are committed to providing these services and can see a way of making money out of them are able to plan appropriately and properly. It is to recognise the nature of the providers that they are dealing with, whether they are large or small firms, and to provide a level playing field so that firms are able to compete on quality.

Q63 Mr Buckland: Coming back to the point I was making about provision of community orders, or, indeed, provision within prisons, what would be your view, Juliet, as to how procurement should take into account the smaller charities and organisations’ needs? In other words, how do they avoid just having the big players taking on all the contracts?

Juliet Lyon: It is important to explore that. At the moment they are grossly disadvantaged, in our view. You will have small specialist agencies that may not be able to scale up operations but are offering an extremely valuable and effective service, for example, in a region or over a specialist field. For example, you could take Circles, which is the charity that provides impressive support, working with volunteers, for people who have committed sexual offences when they are released from prison.

Q64 Chair: Would you give us the name of the charity again?

Juliet Lyon: Circles. It used to be called Circles of Support; that is why I hesitated. They are providing a very specialist form of support and resettlement which is particularly effective. Unless they have changed remarkably in the last few months, they would not strike me as the kind of charity that would have the capacity to enter a bidding war and yet what they are offering is quite unique.

I was pleased to hear that the Samaritans, who provide support for trained prisoners to act as listeners inside virtually every prison in the country, have just been awarded a grant by NOMS. We would very much like to see a mixed economy. We would like to see recognition given to particular charities that should be grant-aided to provide a service where payment by results is probably not applicable. We have concerns about the fact that payment by results is seen as a holy grail, which it is unlikely to be. It may well be a method that leads to better delivery of services and a more effective system. It is unnerving that we are seen as a world leader: that is, nobody knows what is going to happen. I think that is disconcerting.

There needs to be much more work and attention from the MoJ on how it can enable the smaller charities to function in a way that does not face them with a very unpalatable choice, which is that they either become a sub prime of a very large charity or a very large company, which has implications both for their budget line and their identity, or they face going out of business. Some of them are on the edge of that choice. I do think it really is important for the MoJ to pay attention to that right now, before it loses some very valuable resources, almost by accident.

Q65 Steve Brine: Juliet, obviously this inquiry is about the budget and the structure of the MoJ. Reading your words, you seem to foresee an MoJ that is an organisation comparatively light at the centre but highly skilled and experienced. Do you feel that it is moving in that direction or away from that direction as we speak?

Juliet Lyon: It is moving in the direction of lighter at the centre perforce managing the cuts.

Q66 Steve Brine: Yes, but that is a budgetary driver.

Juliet Lyon: Indeed. That may well not have been planned quite as carefully as officials might have wished and we might have wished, but it is certainly far lighter at the centre. Simply by eye, you can see that there are fewer people. It is all the more important then for those people at the centre to be the best-skilled people. Many of them still are; I think it is fair to say that.

We have a particular concern about the use of skilled people who are diverted on to other tasks. I will give you an example of that. Because the Justice Secretary is very keen on competition and sees that as a driver to improving standards, the plan is to bring forward to competition a group of prisons, followed by another group of prisons, followed by another group of prisons, and to have a competitive tendering exercise to improve standards. That means in effect that for the public service tendering each bid needs to be led by an experienced governor. There are a limited number of very experienced governors. You have a situation now where we have long had a problem of high turnover of governors and an impact on quality of services, prison by prison. Some of the best governors and some of the most skilled are occupied leading a bid team. I do not know what the cost of that is, both in terms of leadership and skill and money, because there is not transparency about that, but the Prison Reform Trust does have concerns about that.

Q67 Ben Gummer: Ms Lyon, on the issue of commissioning again-and you raise an interesting and valid point, as you have done before, about small providers-could I put a naughty suggestion to you that perhaps the MoJ is not commissioning big enough? Yesterday I was at the Work programme provided in my constituency, which is huge. It takes in the whole of the eastern region. The provider in Ipswich is a subcontractor and they are sub-subcontracting to some micro charities in my constituency, some of whom are very new. There are some older ones which are not providing because they are no good. There is a model of an ecosystem where you are providing work for small micro charities who are not incentivised and do not have to bid in these big bidding contracts, but you allow the very large providers who are able to do it to engage in that complicated and expensive process.

Juliet Lyon: I guess that is another example of how this is a very experimental process, which may have all sorts of unintended consequences. I do not feel that it is a carefully planned process. There are casualties along the way. A charity that we admire is PACT. It was delivering the entire visitor centre services for the London prisons. Indeed, it helped to raise the money for the brand new visitor centre at Wormwood Scrubs. It found itself in a competition which it lost to a much larger children’s charity, albeit a good one, Spurgeons, but without any experience whatsoever of running those services. They lost because of the nature of the bid and the way they were competed. Through the TUPE process, of course, many of the staff who were working for PACT will be working for this other charity now.

It is a confusing process. It requires the bigger charities to take on board a risk that the smaller ones simply could not, in terms of deferred payments and delivery of services. It is a process of experiment without necessarily the kind of checks and balances that you would need to make sure it was working. I am not quite sure how carefully monitored it is. If it were carefully monitored, what you have described would be picked up and hopefully addressed.

Mark Stobbs: From the Law Society’s point of view there would potentially be significant problems with that, particularly in terms of retaining the expertise of voluntary organisations and smaller firms. They might well find themselves at the mercy of a larger contractor who might very well be their competitor. You may end up losing some of the diversity and important expertise in the system unless you are very careful about the tendering process in that route. We would urge caution.

Q68 Chair: I want to look at a couple of points-one from each of you-which you brought up in your very helpful submissions. One was a submission from the Law Society about the IT history and the fact that IT does not always keep up with ambition, if I can put it that way. Does that not also place a responsibility upon your members? If the Department could get its act right and keep its IT up to the level that business and the work requires, then your members are going to have to accept what farmers and Members of Parliament and all sorts of other people now accept-that they have to do everything online.

Mark Stobbs: Yes, and the Law Society has no problem with that. The overwhelming bulk of the profession now works online. Certainly, if you are doing commercial work or any work for a private client, the chances are that you will be using e-mail and such IT systems as are available. What we would love from the Courts Service is a clear direction which enables our members to invest in particular areas.

I will give an example about cloud computing and the CPS system. We were told that you needed to have your cloud computing supplier somewhere in the UK. A number of firms invested in a firm in Northern Ireland. We are now told it has to be on the mainland.

Chair: Really; that is extraordinary.

Mark Stobbs: That is the version that we are getting from the MoJ. I am not sure that the Law Society particularly cares where it is. We would just like to have the clarity so that our members can invest properly and play their part in this. We have no brief for solicitors who are not interested in moving into technology. We want to have the clarity and the certainty.

Q69 Chair: In the Prison Reform Trust’s submission the point is made that information is neither collected nor appropriately shared, even within the system, let alone with external participants in the system like you. Do you want to add anything to that?

Juliet Lyon: I realise that I am coming in from a very critical perspective. At the end perhaps I can say a couple of things about where we really admire what the MoJ is doing, but in relation to information gathering and dissemination, it would be helpful if we could hear more from the MoJ and the MoJ was prepared to make more public some of the things that it does do well.

There was a question earlier on, for example, about probation. There has been recent information about probation’s achievements in relation to MAPPA and management of very serious offenders in the community. There are some very good examples of work with young adults in Manchester under something called IAC-Intensive Alternatives to Custody. There are a number of things that the Department oversees that do well that are not necessarily shared in a way that would be helpful for the courts and reassuring for the public. It is that kind of outward-facing information that could be done better. It is reasonable to have a gatekeeping function within those responsible for information. The press constantly raise the issue of whether they can visit a prison or do this or do that. You would expect some checks and balances in order to protect vulnerable people and hard-pressed staff. That particular part of the MoJ works too fiercely at the moment to guard against any kind of incursion, which leads to a public lack of knowledge.

Prisons are still our most neglected and least visible public service. There are whole territories for which the MoJ is responsible which could become more visible. We could see clearly how prisons could perform better. We could see clearly how probation is performing well in some aspects. But that is not seen as a function. As I said, it is viewed more as a gatekeeping function and keeping those who could report out, rather than enabling them to see and report in a good way.

Chair: Thank you both very much indeed. We are grateful for your help this morning.

Prepared 9th December 2011