By Matt.Ross

04 Apr 2013

The Ministry of Justice is at the forefront of the coalition’s moves towards both outsourcing of service provision, and payment by results – meaning that life isn’t always easy for its chief, Ursula Brennan. Matt Ross meets her

All too often, the wheels of government grind rather slowly – but Whitehall is capable of sudden turns of speed when a crisis looms. It showed just such a burst of activity shortly before CSW arrived at the Ministry of Justice’s Petty France redoubt to interview permanent secretary Ursula Brennan, abruptly dispatching the MoJ’s chief information officer Andy Nelson to the Department of Work and Pensions. There, he joined Major Projects Authority chief David Pitchford in a troubleshooting team brought together to keep the Universal Credit programme on track.

“That’s a good example of the civil service working collectively,” comments Brennan. “There was a time when we would all probably have been more defensive, saying: ‘No, we must keep our people for our own challenges.’ But the permanent secretaries’ group tries to be more collaborative about these things now, and to help put the talent where the demand is. There’s a really big challenge in the DWP about Universal Credit – and although we have some very big challenges here, looking across the piece and finding the best person to fill a slot does mean that sometimes you have to give up people to help the community as a whole.”

In fact, Brennan might have been on a sticky wicket if she’d tried to hang onto Nelson. After all, it was only in 2011 that she, as the permanent secretary of the Ministry of Defence, had persuaded the MoJ’s then-chief Suma Chakrabarti to part with his own change management specialist, Jonathan Slater, to help her push through major defence reforms. “Yes, I talked to Suma and pinched him,” she confirms: Brennan knew Slater from her own previous stint at the MoJ, when she helped set the department up in 2007-8.

Nonetheless, Brennan did not stay at the MoD to see the change programme through: in October 2011 defence secretary Liam Fox resigned over the Adam Werrity affair – and eight months later she also left, moving sideways to the Ministry of Justice. The government’s lead non-executive director, Lord Browne, has since revealed that some MoJ non-execs were irritated by Brennan’s appointment. Because it was a ‘managed move’ rather than the result of an open recruitment process, she explains, the non-execs hadn’t been involved in parts of the process such as setting the job criteria.

The MoJ chief is plainly uncomfortable on the topic, but keen to emphasise that the tensions have been resolved. “Some of them felt unhappy that they hadn’t had further formal engagement in the process,” she says. “But that hasn’t made it difficult to work with them, because they – like the management team – are really focused on helping the MoJ deliver change. And the non-execs here are really closely engaged with us: they don’t just sit on the board, but also come to a lot of the other business that we do. We engage with them quite a lot informally, as well as through the formal process.”

Old stomping grounds
When she returned to the MoJ, Brennan found that much had changed during her four years at the MoD. “When [the MoJ] was created, it was still blocks of business that felt rather distinct,” she recalls. “What you’ve got now is a much more mature... and cooperative organisation. We’ve done things to try to bring some of the blocks together” – she cites the merger of courts and tribunals in HMCTS.

There has also been rapid progress in the use of digital technologies – and on several fronts. The MoJ has been a pioneer of video links in service delivery, vastly cutting its bills for the transport of offenders by installing digital connections between courts and police stations. When Brennan was last in the MoJ, she remembers, “that was in its early days. And we do desperately need to push it on faster – but whereas before it was exciting, cutting-edge, it’s now much more routine in the places it’s been rolled out.”

Meanwhile, secure digital connections are also being used to move data more cheaply around the criminal justice system, and processes are being rebuilt around new technologies: she mentions the ‘Lasting Power of Attorney’: a “massive paper-chase” that’s been transformed into a “digital process where people do much more self-service”.

Digital technologies are also being used to reduce the burden on call centres: “We’re helping people to understand [our services] so they don’t keep asking us questions,” she says: for example, “we’re developing a digital app that tells people how legal aid works.” To improve its ability to design and deliver IT projects, the MoJ has become the first department to establish its own Digital Services Division – garnering praise from the Cabinet Office’s Government Digital Service in this month’s IT strategy update.

The MoJ to which Brennan returned had also, she says, been “delayered”, with the removal of some strata of management. This can mean, “when it works well, that quite junior people now feel very empowered,” she points out. “They previously had to go through lots of bosses to do things, and they’re now able to do them themselves.” The budget cuts have, Brennan believes, forced managers to explore whether there’s “a different way of doing things – and there are some parts of our system where we’re genuinely looking at whether there’s a different way of running this business.”

Letting business run the business
In many cases, the MoJ’s reforms involve introducing payment by results (PBR) systems – of which the department has been a pioneer – and passing delivery to private and voluntary sector organisations. And as Brennan acknowledges, “there are two obvious sets of skills that we need there: one is the programme and project management skills to make that change happen, and particularly to make it all happen at once; and the other is the commercial, commissioning, contracting skills.” The MoJ has good procurement skills in its prisons arm, she adds, but now “we need not just some really good key people, but to build [those skills] in breadth and depth”.

This brings us to the MoJ’s last substantial outsourcing project: the commissioning of a private company to manage the provision of interpreters in law courts. The National Audit Office, the Justice Select Committee, and the Public Accounts Committee have all published highly critical reports on the interpreters scheme, with the Justice Committee chair Alan Beith condemning it as “shambolic” (see CSW 20 February). Here, Brennan is uncomfortable again: “It’s a really good example of how difficult it is to get across the story about something that isn’t necessarily straightforward,” she says, with an awkward laugh.

The service was in urgent need of reform, she argues: courts were commissioning interpreters “locally, without a lot of obviously-enforced quality standards. We started with something that wasn’t a good place to be, and said: ‘We need quality standards; we need consistent understanding of our costs; and we need to make sure we’re not paying over the odds’.”

The MoJ’s solution was to commission the private company ALS to provide a single portal through which all courts would hire interpreters. Cheaper, less qualified interpreters would be used in less sensitive cases, and the payment system was changed so that, for example, interpreters wouldn’t be paid for the time spent waiting for their cases to come up.

The department also decided that it would get the new scheme in place to an ambitious timetable: “Interpreters were going to get less money, and they understandably were really opposed to the changes we were going to make, so the people here had to make a judgement about how swiftly we flipped over to the new regime,” Brennan explains. “The longer we carried on debating and discussing, the more the interpreters thought: ‘The MoJ will probably change its mind and not make these changes.’ So we needed to move reasonably swiftly.”

Not surprisingly, the MoJ’s relationship with its freelance linguists quickly deteriorated, and they mounted a boycott of the new system which meant that, as Brennan acknowledges, “the first months of the new system were a real problem. There were places where it was difficult to get interpreters in court, they didn’t turn up on time, and so on”. Brennan argues that the new system has now settled in. “If you ask staff in courts now, they say the portal is much better than it was before,” she says. “That contract is an example of something that had an unhappy introduction, but has stabilised into a much better place. It has saved us money and introduced quality standards – but somehow it’s been difficult for us to get that message across.”

Uncomfortable messages
The various highly critical reports have certainly not made it easy for the MoJ to defend its project. The Justice Committee, for example, said that the MoJ “did not have a sufficient understanding of the complexities of court interpreting work”: is that a fair criticism? “We knew how the system worked,” she replies, arguing that the problem lay elsewhere: “Initially you had a bunch of people who didn’t want to join a system in which they’d be paid less money, and there was a hiatus around that.”

Okay. How about some of the other criticisms? The Justice Committee found that the MoJ hadn’t conducted proper due diligence tests on the provider, and complained that the consultation had resulted in only minor changes to the plans. “I don’t think we do believe that messages from the consultation weren’t received,” Brennan responds: the interpreters had called loudly for a delay, and “we took a very clear view that said: if you’ve got a group of people who are not going to make as much money out of the new system, delaying it creates an opportunity for further confusion and the belief that we weren’t determined”. She argues that “the most important thing was to demonstrate that we were going to get on and do this. We took the judgement that we were better to crack on and do it than to have a haemorraghing of interpreters who’d think that if they held out, we’d change our minds.”

But surely that single-minded concentration on pace left little room for trials, pilots, or development of the market so that the MoJ could choose from a range of providers? At this point the press officer interjects to suggest that we move onto a different topic – but this issue involves capabilities which, Brennan has said, are crucial to the department’s strategy, and CSW is reluctant to let it go.

Once again, though, Brennan gives pretty much the same answer: “The critical thing was convincing all the interpreters that this was the way we were going to go, and that they needed to log on and join the new system,” she replies. “If we’d postponed the start date, it appeared to us that it would be incentivising the interpreters not to come on board.” She adds that the MoJ did have emergency measures allowing courts to “go off-contract” if the ALS portal drew a blank, and points out that courts interpreters now receive similar rates to those employed by the NHS. “It just wasn’t right for us to carry on paying over the odds,” she says.

In 15 minutes of discussion on this topic, Brennan only gives an inch of ground on errors that the department might have made when asked what lessons the MoJ has learned from the experience. “We’ve tightened up our governance so that emerging problems get surfaced very quickly,” she says. “There were lessons about the messages we gave out to people in those early months, when things were difficult.”

In essence, Brennan argues that the need to move fast over-rode every other consideration, and that the initial chaos was a worthwhile sacrifice in order to get the new scheme in place. Hopefully, though, the courts interpreters scheme does not foreshadow future outsourcing projects – for now the MoJ is embarking on a new scheme that is much bigger, much more ambitious, and potentially much more dangerous.

On probation
At the beginning of this year, the MoJ set out plans to restrict the probation service’s role to writing court reports, overseeing risk management, and handling high-risk offenders: other offenders will in future be handled by contractors, it said, while support services will be extended to the short-sentence prisoners currently released without a probation referral. Asked what the department will be focusing on as it develops these plans, Brennan explains that it’s working hard to identify both effective ways of working with offenders, and robust models for the delivery of PBR services.

“We’ve got lots evidence about the things that help people get jobs and reduce their rates of reoffending,” she says. “And we’ve done lots of work on the kinds of things that we think the contractors will want to offer. But we don’t want to be too prescriptive about how they rehabilitate offenders. A really key thing is how we structure the contracts so that the cash flows in ways that allow people to set up and provide services, but we don’t pay for interventions that don’t achieve a result.”

The MoJ chief also points out that her department has a fair bit of experience in commissioning offender management services: she cites London’s Community Payback scheme, in which the contractor Serco works with the probation service to manage offenders. “We start with the advantage that we have the third sector and the private sector already engaged in this over quite a long period of time, and there are a number of partnerships that are quite well established,” she says.

Critics have complained that the MoJ’s plans suggest that services will be commissioned at a regional level, giving voluntary organisations little chance to compete against their much larger private sector competitors – and Brennan says that her department will learn from the DWP’s Work Programme, which has frequently been attacked for failing to provide the anticipated volumes of work for charities and social enterprises. “We’ve brought in advice and help from the Work Programme to help us see what works and what we need to do differently for our own sector,” she says. “We’re really conscious of the learning around that.”

Brennan is clearly aware of the need for her department to develop stronger project management and commissioning skills, and of the complexity and scale of the programmes on which it’s embarking. That awareness, of course, does not guarantee success – but the government does now appear to recognise exactly what went wrong in the courts interpreters scheme: in its formal response to the Public Accounts Committee’s critical report, published four days after CSW’s interview with the MoJ chief, it accepted all the MPs’ recommendations (see box). So the MoJ is now moving to head off the risk that history repeats itself in the probation services outsourcing project. If its efforts are in vain, then we may well see the the wheels of government once again changing up several gears, as a team of troubleshooters flits across Whitehall – only this time, the crack troops will not be leaving the MoJ for the frontline, but arriving in Petty France to deal with the ministry’s own emerging problems.

See also CSW's editorial: Justice capabilities are on probation

Read the most recent articles written by Matt.Ross - Kerslake sets out ‘unfinished business’ in civil service reform

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