Transcript of a Speech to the Prison Governors' Association

Transcript of a speech by Nick Herbert MP, Shadow Justice Secretary, to the Prison Governors’ , Association Annual Conference, Buxton


Thank you very much indeed for having me here today.  It's a huge honour to be addressing your conference.

I noted from the press release that went out that Paul said "It is a departure for us to have both Minister and Shadow Minister speak to conference ... the main reason frankly is that Nick Herbert asked for an invitation"!  I was not aware that I had asked for an invitation, so my office is obviously working quite hard to keep me out of their hair!  I am nevertheless really pleased to be here.

You've been talking a bit about grades and positions this afternoon and I was listening in with some interest, so I shall talk to you just by way of introduction about my grade and position, because I'm not actually Shadow Justice Minister, I'm Shadow Justice Secretary.

That matters because I shadow Jack Straw in this great new department that has been created at the Ministry of Justice.  I was elected to the House of Commons at the last election; before that I was running a think tank, which was looking very closely at public sector issues.  So the kinds of issues which I am engaged in now are not a new interest to me.

David Cameron appointed me to this job just over a year ago.  It's worth reminding ourselves of the old adage - one I absolutely reject - that there are no votes in prisons.  I think that is meant to suggest that there is no political interest in prisons really, except when there is a crisis and then of course politicians start becoming very interested in the issue.

The reason I am here is that I think it matters immensely to whoever forms the next government what is happening in our prisons, and I think it should be of enormous concern to us, as the official Opposition who hope to win the next general election, about what is happening at the moment and what we plan to do in relation to prisons policy.

A System in Crisis

The concerns are clear at every level.  We have a situation - I hardly need to tell you - of prison numbers at capacity.  A situation of daily crisis, in the sense of prisoners having to be moved around the country, you having to deal rather like an airport with too many planes stacking above it, with a daily situation of the pressing demand for the resource that you have.

There is a fiscal implication to the Exchequer, for any future government, of this rising demand for prison places.  The costs of incarceration are going up and there is, as you have been discussing, a very expensive prison building programme being planned.  There is also, it seems to me, a social cost because we have a situation of high re-offending rates.

We can discuss over questions, if you like, how those re-offending rates may be moving - I think they have gone up in the last 10 years, it depends I suspect on the measures that you use - but let's all agree that they are high, and particularly high for young offenders, with the cycling back into the system of offenders, so that one fifth all crime is being committed by former prisoners, the costs to the Criminal Justice System alone of reconvicting former prisoners and re-incarcerating them are £11 billion a year.

That fiscal and social pressure comes against the background you have been reading about and hearing about this morning of a global financial crisis that has now reached our shores and the overnight doubling of our national debt as government struggles to deal with that.  Any future government is going to arrive at the next general election facing a massively deteriorated fiscal position and yet have the necessity, and I hope the ambition, to deal with some of these social problems.

So where does that leave us?   I would like to divide the remarks that I make to you roughly into three parts.

Firstly, I would like to talk about the very difficult, I think in fact the fundamental issue, of supply and demand and how supply and demand is brought into balance in the penal system.  Then I would like to talk to you about capacity and that issue - capacity - does seem to me have to follow the discussion about supply and demand.  And then I would like to talk to you about something more fundamental, which is what we think prisons are for, and how that we might change the mission of prisons in the future.

Supply and Demand

Let me start off with the issue about supply and demand.  If we are going to look at the underlying drivers for the increasing in the prison population, and if we are all going to accept that the continuing rise in prison numbers not being matched by the availability of places is a course which is undesirable to remain on, then I think we do need to do the proper analysis about what the drivers of those increases are.

I think it is important, right from the beginning, to nail a few canards, because certainly when I came on the scene a year ago the mantra that was around that the big problem was short-term prison sentences.   Now, I think short-term prison sentences give you a huge problem.   They are responsible for most of the turnover in your jails.   We know about the limited effectiveness, in terms of rehabilitation, that short-term prison sentences have.  We know recidivism rates are highest amongst those prisoners who are on short-term prison sentences.  We know that it is very difficult for you to deal with prisoners, in any meaningful way, other than holding them securely if they are only in your institution for that long.

But in terms of the actual growth in the prison population over the last decade, that growth has not been caused by an increase in short-term prison population.  In fact, the short-term prison population has marginally fallen proportionality over the last 10 years.  We could get rid of every single short-term prisoner, every single prisoner serving a sentence of less than 12 months - and there are some in this sort of prison abolitionist lobby who think that this is a good idea - and that would reduce the annual prison population by just 7,000.   Plainly, by the way, that is not an acceptable route to take in any case.

The second thing we just have to realise is that when prisoners arrive to you, one in ten of them will have been sentenced for the first time.  You have to have committed either a relatively serious first time offence or you have run through the gamut of community sentences if you arrive at a jail.   And therefore the simple prescription that says we should transfer short-term prisoners on to community sentences, the simple exhortations for judges and magistrates to use more community sentences, flies in the face of what is actually happening, which is there is a failure of community sentences to prevent the progression of offenders through the system and then into the custodial system.

Now it seems to me that what we need to do is to address that progression, and that means not simply exhorting or directing judges or magistrates not to use custodial sentences.  Apart from anything I regard that as being constitutionally improper.  It means being much more attentive to what community sentences are doing.  Actually redesigning those community sentences to ensure they are robust, that there is smart compliance with them, and compliance that doesn't just mean breaching which results in offenders being sent to you anyway, and to ensure that public confidence in those sentences can be built.  So if we are going to address one cause of the flow of offenders into your system it would be by toughening up community sentences, which I think is an absolutely neglected part of the agenda, one which requires a great deal more political attention.

Another part of supply and demand is looking at the effectiveness of drug rehabilitation requirements, or the new groups of prisoner that we have in prisons and some of the historic groups who, frankly would be better dealt with in other environments.  Whether it is seriously mentally ill offenders dealt with in other secure environments, whether it is women prisoner dealt with in rather different custodial institutions, whether it is foreign national prisoners who we could remove from our shores earlier, there are things that we could do it seems to me to alleviate immediate pressures on the prison population.

Let me tell you what I would not do.

I would not get into the position where we would have to go forward with emergency measures of early release which, in my view gravely undermine public confidence in the penal system.  Nor would I want to be in the position - in fact I strongly object to the idea - that what we should do as politicians is to turn around and say we have failed to provide enough capacity and therefore you must adjust your sentences downwards accordingly. 

Furthermore, there is an incredibly important vista of social policy, which I believe is being neglected.  It is a vista which David Cameron is talking about increasingly.  It is one that Tony Blair once talked about when he talked about being tough on the causes of crime.  And that is all of those early interventions to try and prevent young men in particular getting into the penal system in the first place.   So whether it is family breakdown, radical welfare policy to try and get people into work; whether it is more effective drug interventions; whether it is to do with state parenting, whether it is to do with education, there is a very important agenda of social policy which we must pursue in order to stem the flow off offenders into the penal system.   But I think we all recognise that those are measures which will be long term in their impact.

Prison Capacity

This moves me on to what I want to say secondly about capacity because I sometimes think that hostility, which by the way I share, to Titan jails which your Association has expressed is confused with the question of whether we actually need more capacity in the system now.  Plainly, it seems to me, we need more capacity in the system now.

You are in the situation of serious overcrowding in your jails and having to deal with all the consequences of that.  It must be desirable to have more capacity in the system so that prisons are released to do the things which we want them to do so that we can prevent these extraordinary costly prisoner movements and so that we can achieve what I would like to talk about thirdly which is a new mission for our prisons.

But before I leave capacity I want to say we have committed to increase capacity above and beyond the Government's plans, largely through a programme of redevelopment of the prison estate, which by the way, seems to be a good idea in it's own right even if we didn't think that we could get more capacity from it, and I believe that we can.

But I want to stress that the reason for wanting to increase capacity is not because we wish to see an increase in the prison population, it is because we wish to ensure that prisons can do the job we want them to do.

The Mission of Prisons

What is the purpose of prison?  Perhaps we should ask ourselves that fundamental question.  You see, I don't think that we should resile from saying, admitting, that part of the purpose of prison is to punish.  If prisons don't have a penal aspect to them then they will not do the job which society requires from a Criminal Justice System, which is to take that role of punishment away from retributive individuals.  Part of the purpose of prison must be to have a penal element, must be to punish.  But it seems to me that is only one part.  Another part must be to incapacitate.

The third and it seems to me the really neglected part must be to rehabilitate offenders.  I have already mentioned the figures which will be entirely familiar to you about the level recidivism at the moment and it is on that third part that I believe we need to have real focus, because if we can reduce the recidivism rate then we actually reduce the flow of offenders back into jail, and in the long term we can therefore reduce pressure on prison places.  By contrast if we all watch recidivism rates remain so high and even increase then we get ourselves into a vicious circle where we simply have a system where we watch particularly short-term offenders walk out of jail, walk into crime and walk back into jail again at enormous cost to society.

I don't believe that recasting the mission of prisons entirely, so that they have an emphasis not just on security - it must remain the cardinal purpose of a Prison Governor to ensure that security, after all - but also on reducing re-offending, can be achieved with the existing organisation.  I know that you have gone through a period of serious upheaval over the last few years with the creation of NOMS and in my view what is effectively the dismantling of NOMS now.  And it won't be welcome necessarily for any potential future government to say to a group of people in the public sector, let us talk about a further period of reform.   There are attractions on both sides from saying let us talk about a period of retrenchment and calm.  But. frankly, having looked at the system, I don't believe that the current system can do what we all want it to do as it is constituted - not just because there is not enough capacity, but also I think that there are confused accountabilities in the system.  And if we want to achieve this goal of end-to-end offender management, I do think we have to look at clarifying the accountabilities for ensuring that, and actually begin to look at how we join up services which are provided both in prison, in terms of rehabilitation, and outside.

Now that is why in the document which I have sent to all Prison Governors, or at least to Governing Governors, ‘Prisons with a Purpose', we have set out a really bold agenda of prison reform, one in which we say we will recast as prisons as Prison and Rehabilitation Trusts, place Governors at the heads of those Trusts, charge them with a mission to reduce re-offending and introduce an innovative new system of funding that will actually incentivise success in re-offending through a payment by results mechanism.

The attraction of a payment by results mechanism is that what we really want to do is capture this money, which is currently being spent on reconvicting and then re-incarcerating offenders.  Sometimes people in the prison reform lobby talk about justice reinvestment; it's the idea that instead of locking up prisoners we can somehow find some means of paying money for some alternative which will prevent them going to prison in the first place.  Some of you over lunch were talking really fundamentally about the same kind of thing.

Our proposals do exactly that.  If we can capture some of that money and pay it - based on success on reducing re-offending - to prisons then we could unlock an enormous amount of resource that could fund rehabilitation in your jails.  I am talking about significant new resource, £250 million a year of additional resource at zero cost to the Exchequer.

What seems to me really exciting about the proposals we have made is that they achieve the alignment of incentives within the system for the first time.  By introducing a new system of Earned Release - conditional release for prisoners rather than one of automatic early release - we will be incentivising prisoners to comply with regimes and be interested in rehabilitation.

By introducing the system of payment by results we will be incentivising prisons themselves to engage fully in rehabilitation programmes, to make the choices, to empower Governors about those rehabilitation programmes that are delivered.  Put the power and responsibility in the hands of Governors and let you make the decisions about the programmes you want to run both in and outside prisons.

We believe in trusting professionals.  We believe in devolving power and responsibility and then holding people to account.  It seems to me we have to move away from this centralised system of targets and controls and directives which is costly and demoralising, and instead renew the way in which we are running public services based on better incentives, greater local accountability and with everybody moving in the same direction.


Finally what I want to say to you, and what is really exciting about these proposals, is that we are the only major political party that is now talking about reducing the prison population over the long term.  You know, this has been missed in all of the debate.  When we published our proposals the focus was on the fact that we said we need extra prison places, well yes we do need more capacity.  When we talk about dealing with knife crime, people notice the fact that one of the things we say, and it is only one of the things, is that we need to toughen up on sentences and the same in relation to our bail proposals.  We are not resiling from saying some of these things; there are areas where we need to toughen up.

But what has been missed is actually what we are saying is that we want to so recast the system, that over time we are going to arrest the growth in the prison population and then bring it down.  And that seems to me to be a fundamentally important thing for a political party to be saying, because we are looking forward and thinking about how we can plan a more sustainable system in the future.

It is a system in which the Prison Governors will be absolutely central to delivering this mission of reducing re-offending, which is why it is so important for me to talk to you individually when I visit prisons.  Edward Garnier, the Shadow Prisons Minister and I have visited over 50 prisons during the course of the last couple of years - he has done the lion's share - and we aim to increase that number substantially over the next few months and meet many more of you.  We value what you do, we recognise the importance of what you do, we think that you are absolutely central to our Criminal Justice System.  We think that there isn't enough public or political attention for what you are doing, and we want to learn from you and hear what you are saying about the system.

So thank you once again for listening to me today.


Bob Benson, HMP Onley:  Can I ask the honourable gentlemen, in my 35 working years, all bar one of them working for either the military or Prison Service, considering the fact that all political parties in this country see public sector workers as a large pool of voters to win over - what plans for the Prison Service does your party have in its manifesto for the next general election that may win over your votes for the Prison Service employees?

Nick Herbert MP:  Well I hope that I have talked a bit about that just now.  We have not published our manifesto yet and we won't until the next general election.  We have published this document - ‘Prisons with a Purpose' - and it is available on the party website,, if you have not seen it already.  I think it is an ambitious and positive document, which talks about a better way to run our prisons, and I hope it will commend itself to you and those that you represent.

What I can tell you is that David Cameron is interested in this issue, concerned about this issue.  When he appointed me to this job he said he wanted me to focus on this area of policy because he thinks it matters.  Some of you may have noticed that he talked about it in his party conference speech last week.  I think that there has been too little attention on this area of policy.  We have heard a lot over the last few years about tougher legislation.  We hear a lot about the need to get more police officers on the street and there is a lot of focus on better policing.  We have not heard enough, it seems to me, about the social drivers of crime - early intervention and what we can do, and I mentioned that.  But we hear very little about prisons, other than when some crisis materialises.  That's why I started off by repeating that old adage about there being no votes in prisons.

So I hope you will be hearing more from us, and whether you agree with what we are saying or not, whether you agree with our policy prescriptions or not, you know I hope to have an engagement with you.  What I hope you will recognise is that we are taking a real interest in these issues.  I think that those who work in the Prison Service in whatever role, doing whatever job, I think what they would like to know is that there is a political party that actually is interested in them, in their job and in wanting to improve the conditions in which they work and to improve the service that they work for.  That's my mission.

Gerry Hendry, PGA National Executive Committee:  It is interesting to note your hostility to Titan prisons and I have actually seen and heard some of the things that you have actually spoken about this.  My concern is that when I read the paper that was published earlier about how you would actually close down city centre and town centre prisons to build new capacity prisons elsewhere etc., what that means of course to my staff and to the staff of other prisons, and what you would see then is actually a lot of fear that has been created as a result of that.  That is an issue I would like you to respond to.

The second issue is in relation to funding because it will come as no surprise to you, that as prison Governors we have consistently had the same message over the years that we actually believe that a lot more money should be spent at the front end and dealing with the problem at the start of the problem rather than throwing people into prisons with regimes which cannot actually cope with them.  We want to be able to use our professionalism to work with prisoners and the long-term offenders and do some meaningful work in terms of reducing re-offending with that group of people.  The difficulty is of course there are no votes in prisons.  The general public quite honestly couldn't give a damn whether or not we have fewer prisons or better prisons what they want is to see the problem out of their face.

I just really think that we have sat at this conference and heard a Shadow Home Secretary, who then became the Home Secretary, make all sorts of promises, all sorts of things, will you give us an assurance that you will publish a policy document that demonstrates how all of this is going to be funded, because bear in mind that other Shadow Ministers will be doing the same and there is, specially in today's fragile climate, there is a finite budget?

Nick Herbert MP:  Thank you - lots of good questions there.  Personally on the issue of closing prisons I don't think that staff should have anything to fear from the prospect of moving from a jail with difficult physical conditions, which makes it difficult for them to work, where there is inadequate space for facilities, to one with modern conditions.   That should not be something in my view which staff fear at all, that is something which seems to me to be welcomed.  In my view, too many of our jails are either very old or in poor condition, and it is not necessarily those that are most old that are in poor condition, which you will know better than I will.  The maintenance costs of those prisons are often exceptionally high and in my view they often have far too little space to do the kind of things that I would like see reformed jails do in terms of providing effective rehabilitation.

Now for all of those reasons I think, as I said, on its own merits a redevelopment programme is the right thing to do.  By the way, the Government has talked about it as well, and it hasn't really happened.  I think it's an important part of our agenda and it will also, at no cost to the taxpayer, result in a lot more capacity, and I think we desperately need more capacity.  So for all those reasons I do want to pursue that agenda and will do whatever I can to persuade staff that it is the right thing to do.

‘The public don't care about prison'.  Well you know I think the public do care about crime and the levels of crime in their communities, and what we have to try and persuade the public - my job as a politician is to do this - is that what prisons do really matters to the level of crime in their community.  If what we are seeing is criminals, whether on community sentences or custodial sentences, going on to commit high levels of crime the moment that they are released from that sentence or that institution, then those institutions are failing and then the public are less safe.  So we need to persuade the public that what happens in prison matters.

I think there are two schools of thought that are wrong.  There is the school of thought that says that all we should do is chuck offenders into prison and throw away the key, and then there is the school of thought which says that prisons don't work so we should abolish them - which, by the way, is a view seriously held by some people and I think it's barmy.  I think this kind of feeble thinking on either side actually prevents us doing what we need to do, which is to say, yes of course there will always be prisons, prisons have a role, let us have the debate about whether we are sending the right people to prison and whether there are effective alternatives, but there will always be prisons.  There will always be a prison population.  Let us have prisons that have a purpose, that work.  That is the debate which I think we should be having and have not had in the country for too long.

You asked for an assurance about a policy document that is costed - all of the numbers in this document have been costed.  The policy proposal is revenue-neutral because we recognise that there is not going to be a pot of gold in relation to this policy or any other, because of the condition which you and I can see all around us.  It will be very important for us to demonstrate that in the run up to the election, and I can assure you that we will be giving it a lot of attention.

Zoe Short, HMP Styal:  Just referring back to the third of the points you made about your mission for prisoners in the future.  At the risk of misquoting you I think you said something on the lines you consider Governors to be central to delivering that mission.  You described how you would value Governors and that they are central to delivering that.  I am just wondering how that fits within the Work Force Modernisation proposals that we have been discussing the entire time we are here.  Does your document take account of a loss of two Governors per Prison and Rehabilitation Trust?

Nick Herbert MP:  I am not going to talk about those Workforce Modernisation issues.  They do not form a part of what are in these proposals here.  Those are a part of the Government's agenda at the moment and it seems to me are for you to resolve with the Government, and I have listened to the debate that I heard this morning and I am very happy to talk to you separately about that.  What I would like to do is perhaps just look beyond that to what I think is the potential opportunity for Governors in the reformed system that I am discussing.

As I mentioned we propose recasting prisons as Prison and Rehabilitation Trusts, so perhaps analogous to NHS trusts that may run a single hospital or a group of hospitals.  That Governor will have an enormous amount of autonomy, will have devolved budgets, will have the ability to contract with whatever services he or she requires both in and outside the prison.  That Governor will have a remit which extends beyond the prison gates to ensuring a reduction in re-offending, and therefore to try to maximise the income for that prison.  So what I am talking about is responsibilities for what you might call the Governing Governor and the Governor's team that are massively enhanced, and I am also talking about resources that will be flowing into the system that are massively increased, through the resources that are captured from savings in reducing re-offending.  That's resources that can potentially be allocated by the Governor in relation to remuneration which may be performance-linked in-house and shared by all the staff within the prison.

So if you don't mind I don't want to get down into some kind of fight with you about something which is not my responsibility at the moment and which you know a hell of a lot more about that I do and need to discuss with this Government.  I would like to talk about my proposals which will fundamentally change this system, which I think will improve the system massively and result in, I believe, fantastic new opportunities for Governors as they come to command these Prison and Rehabilitation Trusts.  I hope that the consequence of that is that we won't, in future - should my party win the election - be having to have the kind of conversation that you had earlier today.

Eoin McLennan-Murray, HMP Lewes:  Nick, three things I just wanted to touch on briefly please.  You started off by saying some things you wouldn't do and I think that's quite helpful.  One of those was that you wouldn't be legislating for lower sentencing but of course politicians have in fact legislated for longer sentencing so I can't quite understand why you can go one way, why not the other if there is good reason to do so.  You might want to say something about that in a minute.

The other bit about the purpose of prison - interesting to get to the fundamentals here - is prisons as a punishment.  If it isn't the loss of liberty as a punishment, can you just inform us what you see is the punishment of imprisonment and the third bit I just wanted to, well it's probably been touched on already actually, is about your proposals for the future and ‘Prisons With a Purpose'.  I did read your document - it was some months ago when you first sent it out.  My reading of that, the way I interpreted it, was that we would actually be abolishing what was then Regional Offender Managers, now Directors of Offender Management, and the structure that goes around that.  That was my understanding and you might want to confirm that although I think you already have. Thank you.

Nick Herbert MP:  Thanks very much for more great questions.  Firstly, on sentencing, you know I have been very critical of the idea of a Sentencing Commission, which I think would fetter the judiciary and provide a mechanism for the Executive to control sentencing.  One of the arguments which I kept putting to those who were initially attracted to the idea - particularly in the prison reform lobby who saw it as a potential mechanism for reducing sentencing sentence lengths - I kept pointing out that politicians could easily use a mechanism like that to do exactly the opposite, that is to increase sentence lengths.

You know, I think there should be a separation here.  Yes, I think that Parliament can set a sentencing framework, but actually I do think it's for sentencers to determine what is the appropriate sentence and sentence length.  I don't want to take that discretion away from them, and I don't want to gainsay magistrates who at the moment tell me that they do not use prison lightly, that they use it when they feel that they have run out of road with offenders.  I think my responsibility is to try and find alternatives for them so that they don't run out of road, so they can deal with situations before they have to resort to those short-term custodial sentences.

What I do think would be worthwhile is some kind of mechanism which warns Parliament about the impact of legislation which it is passing.  We have passed far too much legislation.  I have been horrified since I became an MP about the extent of criminal justice legislation and how poorly it is scrutinised - legislation that cancels out other legislation straight away, which has added to the complexity of this system and has added to the number offences.  And of course, has often had the unforeseen or improperly considered impact of increasing the prison population, the operation of IPPs being a classic example.  Now I think if we had some kind of sentencing impact assessment that would actually tell legislators - look by all means pass this law, that is Parliament's decision, we are elected by the people to pass laws,  but have full regard to the impact of that.  I think that would make Parliament legislate with more care, and I also thing that it would behove Ministers to accept their responsibilities to provide capacity, which is commensurate with what they are doing in sentencing changes.

My objection to the last ten years is not the marginal lengthening of sentences for more serious crime, which has been the principal driver of the increase in the prison population, that was in response to public concern about violent crime and everything else.  My objection is that the Government, the same Government that passed that legislation, then ignored every projection about the necessity of increasing capacity to match it, and that is what is unsustainable it seems to me about the current arrangements.  So, yes, I am interested in sentencing but I am not going to tie the hands of judge and magistrates.

On punishment, please don't get me wrong when I say that part of the purpose of prison is punishment.  I am a prison reformer, you know, I do not believe that prisons should be cruel or inhumane places - the reverse.  I think you're right, the essential element, penal element, within a jail is the deprivation of liberty.  But what we have said in our document is that sentencing, whether for non-custodial or custodial penalties, should have four pillars.  The first of those pillars must be penal, it seems to me, the second should be restorative, which could give the opportunity for a restorative element.  The third would be rehabilitative so that actually it is part of a sentence plan that there should be some sort of rehabilitative element to what goes on, whether in a community aspect or a custodial aspect.  And the fourth element should be work, because if we can ensure that a part of that sentence is of an offender either working on a proper unpaid work requirement leading to full-time work in a community environment, or making sure an offender is properly equipped to get into work, is enrolled on a work programme on release from prison.  Those seem to me to be the important elements of sentencing.

When I talk about punishment I certainly do not mean that any kind of return to some kind of indecent regime, but I do think that a situation where prisoners are now being locked up in their cells for longer periods because of the Core Day, shutting out the engagement of the voluntary sector, reducing the amount of time that they may spend on purposeful activity, when in those cells the prisoners are doing often no more than smoking or watching television, where the work opportunities within prisons are so limited, where the rehabilitation opportunities in prison are so limited - and none of that is to belittle all the work which you are trying to do to reverse that situation.  I think that's unacceptable and I think that those regimes should change.  And unless you're going to have a politician that is someone who wants to stand up and run the system and say ‘I think it's unacceptable and I want to change the system', how are we going to change that system?  It does require somebody to say these things and mean it.

And on ROMs, yes the thrust of what I am saying is that we want power and responsibility and autonomy to be devolved to this new caste of Prison Governor.  You know, I heard someone use the expression ‘Super Governor'.  Is not an expression I used, but it seems to me a lot better than Governing Governor, which has always struck me as being a rather extraordinary word!  At the moment we have a situation where we have a layer of area management and now apparently above that a layer of regional management to be inserted above it.  That is inconsistent with our philosophy, which is about the devolution of power against a background of accountability.  The two must go together, that accountability has to go alongside the devolution of power to the institution and the individuals who run that institution.

Eoin McLennan-Murray, HMP Lewis:  One other thing I forgot.  Under the proposals you have, my memory is a bit hazy, but were those Governors, or whatever they are to be called, accountable to an elected official?

Nick Herbert MP: What we envisaged is that Governors would be appointed by the Justice Secretary, and by the way these would be Governors outside the High Security estate which would be continued to be run centrally.  We raised the possibility that Governors could in future be appointed by the person who we are proposing will be elected in each area to govern the police, because our proposal is to replace Police Authorities with a directly elected individual.  And there is plainly some attraction, potentially in giving that individual a broader range of responsibilities for the criminal justice system or parts of the criminal justice system in every area.  That might mean that the individual could look, for instance at the probation services within that area and prisons.  That is consistent with the philosophy we have about localisation, trying to devolve power and responsibility from Whitehall.  But that is only an option, which we said we will consult about further.

Mark Flinton, HMP Exeter:  We spoke at lunch; just moving on to what you were saying a few minutes ago about funding linked to performance.  Given the types, sizes and locations of prisons in a national service, and there are huge chasms between demographics and the role of each prison - even if two prisons have a similar role, the very site they are within the country and the community they serve, is massively disproportionate at times.  Without going into too much detail, as I am not sure it is appropriate here, what are your thoughts on the mammoth task that would be there to measure and verify how that performance is achieved and how funding would be linked to it?

Nick Herbert MP:  I do think at the moment it is problematic but we don't know - you might - but we certainly at Westminster do not know, what the performance of each prison is in reducing re-offending.  Now I understand that prisons have a huge throughput of offenders, offenders move from one institution to another, there is a great variation in institutions and that movement, by the way, seems to me to be problematic.  But nevertheless, the fact that we don't know does seem to me to be quite extraordinary.  Imagine if we said we just don't know how successful schools are in exam results, we don't know how successful hospitals are in the operations that they deliver.  Politicians have been talking about prisons and yet we don't know how successful each prison is in reducing re-offending.  That just seems to me to be wrong.

What we have said is that there will be a wholly different way of funding prisons, which would be based on a tariff system.  Put simply, no prison is going to lose current resource because every prison will be paid a basic tariff, which is essentially what it gets at the moment for its prisoners, plus of course we hope more in time according to economic growth and the availability of resources.  But what would be completely different is that prisons could potentially earn themselves a premium tariff on top of that payment should they succeed in reducing re-offending, and that requires us of course to develop a sensible measure of a reduction of re-offending.  It also requires in my view, less transfer of prisoners around from institution to institution, because otherwise you can't assess the performance of that individual prison in reducing re-offending, which is why we are interested in clusters, and the idea of accountability accruing to a cluster that may have the full range of regimes that we want for a prisoner to complete through the prison journey.

I am sure the principle is right, which is that we want to achieve is justice reinvestment.  We want to spend money on success rather than failure, but we need a formal mechanism to do it, because otherwise no Treasury will let us spend that money.  So that is why I think the principle of payment by results is important.  It is important because it unlocks a huge amount of resource potential for prisons and changes incentives.  But it is important to stress that no institution would lose out from what it currently receives by this mechanism.

Mel James, HMP Ashwell: My only concern with that is unlike schools and hospitals success for a prisoner occurs a significant time after a prisoner has left.

Nick Herbert MP: Oh yes, I am sorry there would have to be a time limit.

Mel James, HMP Ashwell: Going on from that concern I just wonder about the size of the group we would be forming outside of the custodial element that would measure and verify that.  It would be an almost separate prison group on its own of researchers and the significant costs entailed.

Nick Herbert MP:  I hope not.  I think we should be measuring re-offending rates properly anyway.  As I said, I think that that needs to be a sensible measure, the kind of period that we are talking about would probably be over a period of two years.  I don't believe it would necessarily need to be resource-intensive because we need to have this information anyway.  If we don't know how successful institutions are collectively at the moment - prisons and the Probation Service - in reducing re-offending, how on earth can we achieve our collective goal of that reduction?

No name:  Previous Conservative governments brought in private prisons.  Can I ask you what the Conservative policy is regarding private prisons now?

Nick Herbert MP:  What we have said is that we see a role for the private sector and the voluntary sector, I think an enhanced role for both of them in relation to the delivery of rehabilitative services particularly once prisoners have left jail.  That will be at the discretion of the prison Governor.   You see, one of the advantages of the kinds of regime that we are talking about is that it will be far less prescriptive from the top.  It's not going to be a question of the Secretary of State saying, I want you to do this kind of thing in jail or that kind of thing.  Of course there will be basic minimum standards which have to be adhered to, we would all accept that.  It is going to be for prison Governors to decide what kinds of services they want to engage and how to provide them, whether to provide for themselves internally, whether to contract, whether to use voluntary organisations, whether to use the private sector, whether to use the private sector that is delivering in partnership with voluntary organisations.  That would be the choice of the Prison and Rehabilitation Trust.

We have said that the private sector should compete on a level playing field with the public sector, and that would be the case when it comes to the construction and management of new prisons.  I believe in the mixed economy.  I think the private sector has a greater role to play.  I want to be absolutely clear about that; but I agree with what was said earlier by Michael Spurr.   I think that the public sector has absolutely nothing to fear from that at all because I think that there is lots of evidence actually that the engagement of the private sector can be a great spur to improve standards and I think that's been the view of independent assessments by the National Audit Office and by people like David Ramsbotham too.

Andrea Whitfield, PGA National Executive Committee & Governing Governor Swansea:  With the building of the three Titan prisons it is likely 20 per cent of prisoners will be held in private prisons.  How do your plans affect the private sector and will they have to deliver your targets through a payment by results approach?

Nick Herbert MP:  We don't like Titans, by the way, we believe in smaller local jails.  As to whether we will be able to do anything about it will depend on the progress which Titans have made contracts and so on.  But I have made my position absolutely clear from the moment this idea was formed.  We have said that the new payment and accountability mechanism would apply equally to the private sector in relation to new jails.  In relation to existing private prisons they are obviously on a current contractual basis and they would migrate to the new tariff system over time.  But the idea is that there would be a level playing field as between the private and public sector.

John Attard, Youth Justice Board:  I was interested with what you have to say with regard to short sentences particularly.  It seems to us that most Ministers spend a very short time in their post before they are whisked off; consequently they are never around to benefit from their wise decisions.  Is there any commitment from you to serve a minimum of three years without early release?

Nick Herbert MP:  Well I would like to, but it's not my decision - you would have to ask my boss!  I think that David Cameron has demonstrated that actually he does like keeping people in their positions and he has tried to do so within the Shadow Cabinet, which was one of the reasons I was so pleased that Edward Garnier remained in my team when I took over, as Shadow Prisons Minister, so it did give us some consistency, and he is somebody who has showed a huge interest in these issues and visited an enormous number of institutions, sits as a part-time judge, has a lot of interest and expertise in them.  What I think our team hopes to do is, by a process of engagement, listening, dialogue, learn more and shape a policy that is both ambitious and reforming but also is grounded and will carry staff at all levels with it.  That's what we would like to do.

You know, I do think as a general principle Ministers are moved around too much.  It's very disruptive to those that have to engage with those Ministers.  If I may say so I think prison Governors are moved around too much too.  I appreciate that there is a trade off between wanting to gain experience in a number of institutions, but I am very struck in meeting Governors that they're often spending little time in those institutions and I suspect if we did a comparison, say, with head teachers, Governors are spending far less time at the helm of an individual jail than a head teacher is of a school.  Now I think that is probably not good for the institution and maybe it's not good for you as well, maybe it's disruptive for your lives.  I think that it might be a better principle to try and get some consistency and longevity across the board.

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8 October 2008

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