(1) the Good Friday Agreement expressly requires that the European Convention on Human Rights is enforceable in the jurisdiction of Northern Ireland, and so if the Human Rights Act is repealed it will need to be replaced immediately by another statute which has the same effect (the alternatives to this of (i) the UK breaching the GFA or (ii) the Republic of Ireland and the nationalists in Northern Ireland agreeing to remove this requirement are not feasible);
(2) it is arguable that repeal of the Human Rights Act requires the consent of all three of the devolved assemblies and is almost certain any replacement legislation will also need consent, and in Scotland at least it appears the Scottish Government will recommend consent not be given;
(3) the Conservatives in the house of commons only have a majority of twelve, and there are Conservative MPs opposed to repeal;
(4) the Conservatives in the house of lords do not have a majority at all and even if the “Salisbury Convention” is invoked against lords’ delay, the “one hundred day” ambition was not a manifesto commitment – and it may well be that the lords do not accept the Salisbury Convention applies at all;
(5) the Conservatives need to set out which substantive rights will be protected in the new legislation and how these will differ, if at all, from the convention rights under the ECHR;
(6) the Conservatives need to come up with a draft of the replacement legislation, which they still have not done (this has been promised for a long time); and
(7) the Conservatives need to explain why any of this entire exercise is necessary in the first place, especially as there appears to be no problem with the Human Rights Act which can only be cured by its repeal.
Some of these hurdles have got higher in the last week or so.
One may think that risking a crisis over the Good Friday Agreement, creating tension with the devolved administrations, providing a new rallying cause for the SNP, prompting an immediate backbench revolt when you have a wafer-thin commons majority, and setting up a clash with the house of lords – and to do all this in “one hundred days” – is a rather odd thing to do in the name of a “common sense” reform – especially when the government has no clear idea about what will replace the Human Rights Act.
But then again, many stupid things are done by those convinced they have “common sense” on their side.
None of the above means that repeal of the Human Rights Act, and its replacement with “a British Bill of Rights”, in one hundred days, is (literally) impossible. The ministers responsible, Gove and Raab, are clever and ambitious, and it appears the prime minister is determined. And who knows what clever wheeze will be presented in Wednesday’s Queen’s Speech.
However, repeal of the Human Rights Act, and its replacement with “a British Bill of Rights”, in one hundred days, is looking more unlikely than before.
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The new Conservative government wants to repeal the Human Right Act 1998 (the “Act”) and replace with a “British Bill of Rights”.
The intention appears to be to do this in “one hundred days”.
This post sets out as seven distinct “hurdles” the various legal and political difficulties which the new Conservative government will have to address in doing this. Each “hurdle” has the appropriate links to relevant materials and news reports.
In essence, the “hurdles” are: (1) addressing the issue of Scottish Devolution; (2) addressing the issue of repeal impacting on the Good Friday Agreement; (3) dealing with Conservative supporters of the Act and the European Convention of Human Rights (ECHR); (4) getting repeal and a replacement “British Bill of Rights” through the House of Lords; (5) working out which rights are to be protected; (6) working out how those rights will be enforced and the legal form of the “British Bill of Rights”; and (7) explaining why any of this exercise is necessary in the first place.
Background – the Human Rights Act 1998
The Human Rights Act – it is worth taking a few minutes to read it. (Many of those who criticise it, and some who support it, seem to not know what it says.)
It is brief as statutes go, and is actually shorter than much of the commentary which is linked to below.
Schedule 1 to the Act contains the relevant Articles of the ECHR. These rights are called the “convention rights”. As the convention rights are in a schedule, they only have legal effect via the substantive sections of the Act: the convention rights are not free-standing.
The key substantive sections of the Act, which allow the convention rights to be enforced in UK courts, are Section 3 (statutory interpretation), Section 6 (duties of public authorities – including courts), and Section 2 (which provides court “must take into account” – though not necessarily follow – the case law of the European Court of Human Rights).
The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.
The plans, which would see the human rights act replaced by a British bill of rights, say that the European court of human rights would be “no longer binding over the UK’s supreme court”. The ECHR would also be “no longer able to order a change to UK law” although British citizens would still be entitled to appeal to the Strasbourg-based court.
It is not clear whether the “one hundred days” is from the general election or the Queen’s Speech (expected on 27 May 2015); and it is not clear whether the “one hundred days” is for complete repeal and enactment of a replacement, or for the draft legislation to be published and presented.
But it seems something dramatic is supposed to take place which will affect the Act.
Hurdle One: Scotland
The first “hurdle” is that provided by Scottish devolution. Here there is both a constitutional and a political dimension.
The “constitutional” question is whether repeal (and the replacement “British Bill of Rights”) can be imposed “constitutionally” on a post-devolution Scotland. By “constitutional” it is meant whether the process will be in accordance with the (non-legal) conventions which apply to the relationships between state entities – things can be “unconstitutional” without it being illegal.
The second question is whether, regardless of the strict constitutional position, as a matter of practical politics the Scottish Government (and the SNP in the house of commons) will seek to block repeal anyway, at least to the extent it may affect Scotland.
The Sewel Convention is the convention (ie, not binding law) limiting what the Westminster Parliament can impose on Scotland without the consent of the Scottish Parliament.
The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.
[Add, 16 May 2014: I have been asked to emphasise that the paragraph above and indeed the Memorandum of Understanding applies also to the devolved assemblies in Wales and Northern Ireland – and in the latter, this is in addition to the points made in Hurdle Two below.]
The Scottish Government is strongly opposed to any attempt by a future UK Government to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights. To do so would require the consent of the Scottish Parliament and, given our longstanding opposition, we would invite the Scottish Parliament to refuse this.
These articles, by constitutional and legal experts, set out the relevant issues.
The primary issue in respect of Northern Ireland is whether repeal of the Act would need re-visiting the Good Friday Agreement (GFA), which explicitly requires that the ECHR be given legal effect in the jurisdiction.
The GFA states:
The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.
The Act was the means by which the UK government performed this obligation under the GFA. If the Act is repealed then something just as effective in respect of breaches of the ECHR will need to be immediately put in its place.
And whist the DUP are no great fans of the ECHR, the nationalists certainly are. (The UK government knows this: for example, search for “human rights” in this 2000 pamphlet by Michael Gove, who as the new Justice Secretary is responsible for the proposed repeal.) It is also hard to see how nationalists will accept any replacement called a “British Bill of Rights”.
Hurdle Three: the Conservative supporters of the Act and the ECHR
There are Conservatives, including many MPs and peers, in favour of the ECHR and the Act.
After all, the ECHR was co-written by Conservative lawyers following the Second World War (and it is a pity that Conservatives are not as proud of this as, say, the Labour Party is of creating the NHS).
Even if the government addresses the issues presented by Scottish devolution and the GFA, and survives any backbench rebellion in the house of commons, it has to get repeal and its replacement through the house of lords. (And since the end of the coalition, the Conservatives do not have a majority in the house of lords.)
In forcing through repeal, the government will seek to rely on the Salisbury Convention that manifesto commitments are not blocked or unduly delayed by the house of lords.
Even if the Salisbury Convention does apply, there is certainly no way the house of lords (which has many former judges and legal experts) can be rushed into passing a repeal and its replacement in “one hundred days”: that ambitious timetable was not a manifesto commitment.
Hurdle Five: Which substantive rights?
And if all the procedural hurdles are somehow negotiated safely, there remains the question of what rights will be protected.
The UK government is (currently) not proposing for the UK to withdraw from the ECHR (a move which would place the UK alongside Belarus). So it would appear the government is going to all this trouble to just place convention rights on a different footing.
Hurdle Six: what would a replacement “British Bill of Rights” actually say?
This is a genuinely knotty problem for the government, especially if the substantive (convention) rights remain unchanged. It is difficult to see in practice how the current provisions of the Act can be significantly improved upon.
In 2012, a “Bill of Rights Commission” was appointed by the then coalition government to try to solve the problem of what a replacement would look like. Eventually it was disbanded having achieved no consensus. As one member of the commission, Phillipe Sands QC, said of the government’s current “one hundred days” target, “eight of us couldn’t find a way in 700 days”.
It is one thing to announce there will be a replacement “British Bill of Rights” and it is another to provide an actual draft of it. It is difficult to see how one can be produced and placed into law in just “one hundred days”.
More generally, many of the “but what about?” examples of supposed human rights abuses turn out to be myths or to be caused by the application of domestic or EU law.
It is difficult, if not impossible, to posit a case where the only legislative response is repeal of the Act and its replacement by a (unspecified) “British Bill of Rights”.
This is not to say that the Act cannot be amended and improved; but that is not repeal.
So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable.
There is a new Lord Chancellor and Secretary of State for Justice – but what difference does this make?
In one way it is a welcome move. The previous Lord Chancellor and Secretary of State for Justice – Chris Grayling – was not a success. This was not just because of the Treasury-driven cuts: those would have affected any politician in the job, and indeed implementation of the cuts in respect of civil legal aid were the responsibility of Grayling’s predecessor, Kenneth Clarke.
But Grayling made things needlessly worse. His grand design for reforming criminal legal aid was unrealistic and botched, and the consultation had to start from scratch. Again and again the High Court found the Ministry of Justice to be acting unlawfully which, if you think of it, is a rather odd thing to happen to this particular department. Scarce departmental resources were used to promote a Bill – an extended press release dubbed the “SARAH Act” – which actually made no change whatsoever to the law of the land. And his personal stubbornness ended up with his spending £72,000 of taxpayers’ money to defend a prison books restriction which the bemused judge regarded as “strange” before quashing it.
The Ministry of Justice needs a fresh start, and it is good that it has got one.
The appointment of Michael Gove is controversial. His record at Education received (and deserved) heavy criticism. But any complaint as to his time at the Ministry of Justice should be based on what he now does as Lord Chancellor and Secretary of State for Justice, and not what he did elsewhere. After all, the basis of natural justice is not to prejudge a case, and to be dismissive of him before he even starts is also to play into the hands of his political supporters.
That said, Gove will need to be careful as to the targets he chooses and the initiatives he launches. Both the criminal and civil justice systems are in a delicate state, and the probation and prison services are already undergoing what can be euphemistically be called “change”. One wrong move and there could be a political calamity, and prisons especially can ruin a politician’s reputation: ask David Waddington, the right-winger who was packed off to be Governor of Bermuda when prison riots erupted on his watch as Home Secretary (responsibility for prisons is now with the Ministry of Justice).
News reports suggest that Gove’s first job is to repeal the Human Rights Act 1998. That is something which gets easy applause but is actually not that straightforward – not least because it is unclear what could replace it which would be any different to the fairly limp legal provisions of the existing legislation. There are also problems because of the devolution settlements: both Scottish and Northern Irish devolution have human rights protections built in the current arrangements. And the English courts have spent a good part of the last decade “developing” the common law in anticipation of repeal so as to give rights protection to citizens.
So replacing the Human Rights Act is not as simple as it seems – though supporters of human rights now need to make the case against repeal a lot better than they have done so far.
Nobody knows how Gove will fare at the Ministry of Justice. He is highly intelligent, a fluent communicator, and a cabinet “heavyweight”. In all three respects he has a marked advantage over his predecessor. On budget cuts he is in the same position as any new Secretary of State and Lord Chancellor would be in – and neither Labour nor the Liberal Democrats promised at the general election any increase in the legal aid budget.
One key question is whether the new Secretary of State and Lord Chancellor has a feel for the Rule of Law and how citizens can practically use and defend their legal rights. Legal aid and access to justice are not really about the self-interest of lawyers: the issue is how citizens can go about and rely on the court system to ensure that the law is enforced. There is no point in a legislature passing legislation if you cannot depend on those laws in the real world.
Another key question is whether the Secretary of State and Lord Chancellor wants probation and prisons policy to be an end in itself, or the means by which society becomes safer in the medium to longer term. There are currently over 80,000 people in prison, all of whom (with a handful of exceptions) are to be released back in to society. For a politician with vision, there is a chance with probation and prisons policy to make a genuine national improvement.
It may well be that this blogpost is too optimistic, and that the new Secretary of State and Lord Chancellor will be as bad as the last one, if not worse. But that doesn’t have to be the case.
What is beyond doubt, however, is that the running of the Ministry of Justice needs drastic improvement, and that this improvement needs to be quick.
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Today is the birthday of the current Lord Chancellor and Secretary of State for Justice, Chris Grayling.
With parliament dissolved and with a general election just weeks away, he may not be in post, or indeed in any ministerial office, much longer. But that did not stop the High Court giving him a sort of birthday present.
And today, on his birthday, came from the High Court another judgment that the Ministry of Justice had acted unlawfully, with a very telling passage.
The case was about whether Grayling could ignore the Ministry of Justice’s own statutory “Directions” (rules formally made under a statutory provision) when forcing a change of policy about the treatment of prisoners.
The High Court, unsurprisingly to anyone with a basic understanding of public law (in essence, the law which regulates activities of public bodies) held that it was not open to the Lord Chancellor and Secretary of State for Justice to simply ignore Directions made under a statutory provision.
But in a revealing paragraph, the High Court detailed what the Lord Chancellor and Secretary of State for Justice had instructed a barrister to make as a key submission:
54. Mr Weisselberg’s principal submission in response on this issue in oral argument was as concise as it was striking. The Directions were issued by the Secretary of State. He has the power to amend or revoke them; therefore he has the power to ignore or contradict them. They are not directions to him but by him, and he cannot be bound by them.
This was a remarkable submission. The judge described it as “striking” (which is judge-speak for “utterly bizarre”). It is dismissed with ease by the court:
55. We cannot accept this submission. The Secretary of State could indeed amend or revoke the Directions to the [Parole] Board. But so long as they remain in force they are binding on the Board and also binding on the Secretary of State, in the sense that he cannot lawfully tell the Board to ignore them or his officials to frustrate them.
The current Lord Chancellor and Secretary of State for Justice appears to believe that because he makes the rules, it is perfectly fine for him to break the rules.
One problem with this approach is that the rule of law works both ways: you can hardly insist that others should abide by the law if you are happy to casually “ignore or contradict” the law. Another problem is that it shows a serious lack of understanding of the nature of statutory provisions: he could not simply tell his civil servants to “ignore or contradict” Directions he had made under a statutory provision.
In a junior minister all this would be a deplorable attitude. But in the Lord Chancellor and Secretary of State for Justice, it is a disgrace.
Grayling may well shrug at yet another court defeat, especially as he will “move on” soon.
But paragraph 54 of today’s judgment will provide a lasting memorial to his period in this historic office: the Lord Chancellor and Secretary of State for Justice who, in all seriousness, one day told the High Court to disregard the rule of law.
I met a senior staffer from G4S in the studio of the BBC Radio 4 Today programme a few weeks ago when we were putting forward different views on privatisation and he invited me to visit Oakwood and Birmingham to see for myself. I was due to visit next week and had bought my train tickets.
It was therefore a bit of a shock to get the letter from Noms saying they were banning me.
So unless that invitation was insincere (and that G4S banked on it being over-ruled by the Ministry of Justice), the dis-invitation is entirely the responsibility of the Ministry of Justice.
And taking the Ministry of Justice letter at face value, there would seem no operational or other objectively sound reason why Frances Crook could not visit the prison. The excuse given is simply that she had expressed views (“made comments”) about private prisons.
The whole point about organizations such as The Howard League is that they “make comments” about prisons, whether they be in the public or private sector.
And if Frances Crook and The Howard League are wrong about private prisons, then what better way of showing this is there other than allowing visits to those prisons?
In respect of the prisons in question, there was good reason for The Howard League to take an interest. As Frances Crook has explained:
The Howard League has opposed the principle of privatising prisons since it was first mooted in 1992. The concern is ethical, based on the distaste of making a profit from punishment. The most dreadful thing we can do to a person is take away their freedom and that responsibility must rest with the state.
In many cases our worries have been justified as private prisons have had the same, and in some cases, worse problems than public sector establishments. The suicide rate is the same, the levels of violence and assaults is the same. The innovation has tended to be technological and introduced in order to save staff time, the best example being telephones in cell and automatic visit booking systems.
When G4S-run Oakwood opened it suffered horrendous problems. The chief inspector famously said it was easier to get drugs than soap. Birmingham prison was the first Victorian prison to be taken over by the private sector.
Authoritarian politicians are fond of stating that if someone has nothing to hide they have nothing to fear. If that is so, then what do those same politicians have to fear from opening up the prisons to proper inspection and investigation?
This letter to Frances Crook is a disgrace. But the wider refusal to allow the prisons of England and Wales to receive any independent scrutiny is a scandal.
Please can I have all documents provided to and from a Minister in respect of the above proposal.
Your request has been handled under the Freedom of Information Act 2000.
I can confirm that the Ministry of Justice holds information that you have requested, but in this case we will not be providing it to you as it is exempt from disclosure under section 41(1) and section 43(2) of the Act.
The information held by the Ministry of Justice includes documents supplied in confidence by the Kingdom of Saudi Arabia (KSA) in relation to the proposal, and we believe that their disclosure would create an actionable breach of confidence. We are not obliged to provide information that has been provided in confidence to the department (section 41(1) of the Act). The terms of this exemption in the Act mean that we do not have to consider whether or not it would be in the public interest for you to have the information.
The Ministry of Justice is not obliged to provide information where we believe that disclosing the information would be likely to prejudice the commercial interests of any person including the department which holds it (section 43(2) of the Act).
In particular, the Ministry of Justice is in an ongoing competitive process with its proposal to the KSA, and the bid and related documents contain commercially confidential information. Disclosure of the information would be likely to disrupt the negotiation process and have an adverse impact on the bid.
In line with the terms of this exemption in the Freedom of Information Act, we have also considered whether it would be in the public interest for us to provide you with the information, despite the exemption being applicable. When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors:
Public interest considerations favouring disclosure
There is a public interest in knowing how and why the Ministry of Justice enters into commercial relations with overseas countries and which countries these are.
Public interest considerations favouring withholding the information
Disclosure would be likely to prejudice the commercial interests of the Ministry of Justice by affecting adversely:
– its negotiating position in the ongoing Just Solutions International (JSi) bid process with KSA;
– the prospects of a successful outcome for the JSi bid with KSA due to the likely negative impact that would result from disclosure on the evaluation of the bid by the Saudi Arabian authorities; and
– future commercial (JSi) bids with other overseas governments and agencies seeking justice assistance from JSi if details of the Saudi Arabian bid were disclosed which, in turn, is likely to have a detrimental effect on the future commercial prospects for JSi.
We have concluded that, on balance, the public interest is better served by withholding this information under section 43(2).
You can find out more about sections 41 and 43 by reading the extracts from the Act, and some guidance points we consider when applying these exemptions, at the end of this letter.
The Carter Review proposess the “establishment of a National Offender Management Service – restructuring the Prison and Probation Services – with a single Chief Executive accountable to Ministers for punishing offenders and reducing re-offending”.
And so the National Offender Management Service (NOMS) is created, in effect combining the prison service and the probation service.
NOMS is restructured and re-established as an executive agency of the Ministry of Justice.
Commercial activity including development and sale of innovative Criminal Justice Systems – Includes IT based payment by results, case and contract management systems; consultancy and programmes on all aspects of offender work
Another example currently sits within the National Offender Management Service (NOMS), which is exploring an option to establish a not-for-profit organisation to market its expertise in Justice internationally. The new operation, Just Solutions International (JSi), will re-invest any surplus into research that supports the work of NOMS.
Because spending cuts have diminished the budget available for this research, JSi is an example not only of government earning income on its IP, but also of it using that income to maintain a high standard of service delivery.
In January 2015, neither MoJ nor PwC were able to explain how PwC knew so much about JSi as early as July 2013.
The last few years have seen a major advance in the United Kingdom in our expertise in finding ways of managing offenders and re-assimilating them into society.
Integrated Offender Management, for example, is a new way of seeking to prevent re-offending and promote rehabilitation. Governments from around the world are coming to us for assistance on justice matters, looking to take advantage of the knowledge, skills and expertise we have developed.
We are committed to supporting those countries in the development of their criminal justice systems, working in liaison with UK Trade and Investments, the Department for International Developments and the Foreign and Commonwealth Office.
In response to this interest from around the world, we are setting up Just Solutions International – a social enterprise – to enable this service to be delivered in a commercial manner.
It will be able to make available knowledge and expertise relating to offender management services to organisations in other countries that work with offenders. The new body is currently being piloted and we are looking to launch it in April 2014.
Our intention is that Just Solutions will be able to provide you with access to all the services you will hear about during this conference, including, to name but a few: – development and improvement of probation services; – prison estates, prison design, prison building and procurement; – cutting-edge electronic monitoring systems; and – payment-by-results and reducing re-offending mechanisms.
Ministry of Justice (MOJ) and National Offender Management Service (NOMS) Supports capacity for design and prison build across overseas prison services. Provides justice assistance consultancy services alongside learning and development opportunities and interventions via the Prison Service training college. . NOMS will work with UKTI to identify trade opportunities arising from this work. . NOMS will work with UKTI to identify trade opportunities arising from this work.
The UK offender management capability is based on the principles of holding prisoners securely, reducing the risk of prisoners re-offending and providing safe and well-ordered establishments and solutions in which we treat those convicted of offences humanely, decently and lawfully.
The custody estate in the UK consists of adult prisons, young offenders institutions and secure training centres. The majority of these are run by the Prison Service but the UK also has significant experience in terms of privately run prisons and detention centres.
Community sentencing has been used widely in the UK and offender monitoring systems, managed by private security companies (reporting breaches to police) are well established.
The JSi brochure appears to have been created on “Thu 06 Mar 2014 11:35:13 GMT”.
According to the December 2014 mid-year report (see below), JSi submit “a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service”.
We are also are told later that “[a]lso in August, JSi submitted a large scale bid to the Royal Oman Police (ROP) proposing assistance for the design of a new prison. Discussions are currently taking place with ROP about further learning and development training programmes”.
Grayling signs a “Memorandum of Understanding” with the Saudi government.
The MoJ have since refused to disclose what the Memorandum of Justice contains.
In December 2014 comes the first express mention of JSi in any official MoJ document – the (second) so-called “mid-year report” of the Ministry of Justice , covering April to September 2014:
Just Solutions international (JSi), is the commercial brand for the National Offender Management Service (NOMS) promoting products and services to international justice markets.
In August 2014, JSi submitted a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.
Also in August, JSi submitted a large scale bid to the Royal Oman Police (ROP) proposing assistance for the design of a new prison. Discussions are currently taking place with ROP about further learning and development training programmes”.
JSi has also recently won a bid to the value of £848k (€1,071k) to provide support with the development of a Probation Service in Macedonia.
Sadiq Khan(Tooting): To ask the Secretary of State for Justice, what contracts his Department has awarded to Just Solutions International in each of the last five years; what the value and length of each such contract is; and with whom in his Department each such contract was signed.
And he also asks:
Sadiq Khan(Tooting): To ask the Secretary of State for Justice, whether Just Solutions International is a contractor or a sub-contractor in the current electronic monitoring contract.
As of 10 February 2015, I cannot trace answers to these questions.
Sadiq Khan(Tooting): To ask the Secretary of State for Justice, which countries Just Solutions International (JSI) has worked with since it was established; what contracts it has with foreign companies; what visits Ministers in his Department have made relating to JSI; and what payments JSI has received from foreign contracts.
Just Solutions International (JSi) is a brand within the National Offender Management Service (NOMS). Over the last two years, NOMS has worked with the following countries, some of them under the JSi brand. As the NOMS commercial work through the JSi brand is not separated out from non-commercial international work, the list below simply indicates where a charge to the country or the EU was applied (*). This does not include visits by other Governments to the UK for purposes of information exchange:
Cayman Islands (*)
NOMS does not have any contracts with foreign companies related to commercial work routed through the JSi brand and has not previously entered into any nor received payments relating to such contracts.
No Ministerial visits abroad have been arranged to support NOMS’ commercial work.
Specifics of payments for commercial contracts delivered cannot be provided as they are commercially sensitive.
Part of the rationale for our work with other countries is to impact positively on human rights practices. We believe that by bringing our standards on issues such as human rights into international delivery we will improve detention practices. Our correctional services provide a gold standard in human rights, and are well viewed by other Governments who take a similar view to us on the paramount importance of the protection and promotion of human rights. When other countries approach us for assistance, we are clear that we will only offer advice and support that complies with our own stringent human rights standards.
It has been government policy for many years to work with overseas governments and help them develop their criminal justice systems.
18 January 2015 – Grayling is asked about the proposed Saudia deal by Andrew Neil on the Sunday Politics. Grayling says: “It is right and proper that we as a nation try to work with other nations to improve their systems.” and “This is something I am looking at very carefully.”
1. Can I please have a copy of the MoU signed between the Secretary of State and Saudi – https://twitter.com/UKinSaudiArabia/status/510040242481799168/photo/1
A) This is a shared document with the Saudi government so we are not in a position to publish it at present.
2. Can I please have a copy of the commercial proposal put to the Saudis
A) This is a bid that is under consideration in a competitive process and contains commercially confidential information.
3. Can you provide full details to what is to be offered to the Saudis under the commercial proposal
A) See answer 2. What we can say is that the bid relates to scoping of staff training and organisational design only.
4. Can you provide set out the extent of the civil service resources which are to be used in the proposal
A) If approved the bid will be fully funded by the client Government, will not cost the British tax payer a single penny and will generate a surplus to be used to support our own services.
5. When is the proposal expected to be signed?
A) Our bid is under consideration and may not be successful. We do not know the timing of bid evaluation and decision making – this depends on the pace of the Saudi Procurement process.
6. What is the answer to Amnesty’s questions as follows: Beyond the usual aspirational language, can Chris Grayling demonstrate that Just Solutions international will actually be able to concretely improve detention practices in Saudi Arabia without becoming complicit in abuse? For example, is JSi going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme?
A) We believe that by bringing our standards on issues such as human rights into international delivery we will improve detention practices. We should recognise that our correctional services are well viewed by other Governments who also understand our approach to human rights. When other countries approach us for assistance therefore they do so in full knowledge that we will only offer advice and support that complies with our own human rights standards. We have already seen and challenged practice in other countries and have been instrumental in the change of practice in other countries.
7. What is the current budget for JSi?
A) Any commercial work undertaken by NOMS falls within the overall NOMS budget. The aim is that it covers the costs of NOMS commercial and other international work and generates a surplus to invest in our own services.
8. Other than the mid-term report, what mention has there been of JSi in any official publications?
A) There is a reference to JSi in the UKTI Security Exports Strategy (2014)
9. What is the headcount for JSi?
A) NOMS has a team which covers international work and externally funded programmes. Some of the Civil Servants in this team will also deliver the Commercial work as well as the non-commercial part of the job.
10. Who paid for the “.com” website for JSi and why is it not a “.gov.uk” website?
A) Hosting is funded by income generated and the website development was done by internal NOMS staff. The decision to create an external site was made as a result of an accreditation process that required a web presence that is separate to the MoJ site.
11. Why has the Secretary of State now said he is looking at the Saudi proposal carefully? What does this mean in practice?
A) All international activity considered by NOMS is subject to a careful assessment process and sign off by MoJ; FCO and our local Embassies. This includes an assessment about whether our possible activity would improve human rights outcomes. This process was completed prior to our bid to Saudi. We would expect to repeat this process if the Saudi Government decided to offer NOMS the contract. In that case the Secretary of State would have the opportunity to review the earlier decision in the light of current issues and considerations. The final decision may be to continue to contract (should it be offered) or to withdraw from the process.
12. Can you set out the commercial experience/expertise of those engaged in the JSi project? A quick look at open-source sources reveals little or no commercial experience/expertise at all;
A) Within the Unit delivering this we have a range of people with private sector and commercial background.
13. can you identify all private sector organisations/consultancies involved in the JSi project.
A) None currently
In your correspondence with [civil servant] you also raised the issue of the Cornerhouse [sic] case and asked whether it is appropriate for the Lord Chancellor and the MoJ to be entering into a commercial relationship with the Saudi state. Here is a statement on that particular issue:
A MoJ spokesperson said: “The British Government’s position on human rights is a matter of public record and we regularly raise our human rights concerns with the Saudi Arabian authorities at the highest level. No aspect of our commercial relationships prevents us from speaking frankly and openly to them about these or other issues.”
Sadiq Khan (Tooting) (Lab): We already know how little the Justice Secretary thinks of our international human rights obligations, given that he wants to repeal the British Human Rights Act and walk away from the European convention on human rights. What is the Ministry of Justice’s motivation for signing a £5.9 million contract with a country whose justice system is widely condemned for the use of torture—which is what a sentence of 1,000 lashes amounts to—and of execution by beheading?
Chris Grayling: We have not signed a contract. Under this Government and under the last one, our Departments have worked with other Governments around the world to try to encourage improvements and best practice in their justice systems. I believe that that is the right thing to do. We should try to influence countries to move their justice systems in the right direction, and we will continue to do that.
Sadiq Khan: I look forward to hearing about the best practice for beheading.
Sadiq Khan(Tooting): To ask the Secretary of State for Justice, what consultant, non-executive directors and associates have worked with Just Solutions International since it was established; when each such person was appointed; and what the remuneration of each such person for that work is.
Footnote: LinkedIn evidence on the range of JSi activity
Other than the JSi brochure and website, there is public domain information on the activities of JSI on the LinkedIn profiles of JSi “directors”. This cannot be dated exactly (at least by me). I do not propose to link to the pages of individual JSi staff, but the information is as follows.
According to the 2015 LinkedIn profile of one “director” of JSi:
Just Solutions International (JSi) is the commercial vehicle for the National Offender Management Service (NOMS) that provides access to the knowledge, skills and intellectual property of the Ministry of Justice in England and Wales. JSi that we can scope and develop solutions for governments and criminal justice agencies across the world.
Using the success achieved in modernising the justice system in the UK we have successfully developed and delivered programmes in the Middle East, North Africa and the Caribbean. Using staff and other resources from the UK MoJ and the National Offender Management Service and our partners our offer is broad and tailored to our customers and partners, and can span the following:
– Consultancy based advice and review of current prison or community corrections/probation services;
– Reducing Reoffending programme design including payment by results; offender learning and employment; offence-specific interventions;
– Benchmarking to ensure that costs of prisons and community sentences services are understood and providing value for money;
– Staff learning and development in prison and community justice/probation services;
– Prison and police cell design and estates management systems;
– Procurement systems and supply chain management;
– IT based offender risk assessment and case management to Governments and Justice providers outside the UK.
Another LinkedIn profile of a JSi director is in similar terms:
JSi is a commercial vehicle that provides access to the knowledge, skills and intellectual property of the Ministry of Justice in England and Wales so that we can scope and develop solutions for governments and CJ agencies across the world.
Using the success achieved in modernising the Justice system in the UK we have successfully developed and delivered programmes in the Middle East; North Africa and Caribbean. Using staff and other resources from the UK MoJ and National Offender Management Service and our partners our offer is broad and tailored to our customers and partners and can span the following:
– Consultancy based advice and review of current prison or probation services;
– Reduce reoffending programme design including payment by results; Social Impact Bonds; offender learning and employment;
– Benchmarking to ensure that costs of prison and community sentence services are understood and providing value for money;
– Staff learning and development in prison and probation services;
– Prison and police cell design and estates management systems;
– Procurement systems and support to ensure the right services are contracted and that they are effectively managed;
– IT based offender risk assessment and case management to Governments and Justice providers outside the UK
– Intervention programmes to adjust the behaviour of offenders.
If there is any further information available, please post it below. Please do not name any civil servants.
In this Easy Read, the MoJ tells defendants that they have to prove they are innocent. This is a reversal of the actual burden of proof – it is, of course, for the prosecution to prove to the court a defendant is guilty.
What makes this particularly worrying is that it is in an official document – supposed to be authoritative and reliable – aimed at people with learning difficulties facing trials for serious crimes (the Crown Court is for serious crimes and its trials are with juries, the magistrates’ courts do not have juries and are for less serious crimes).
If a defendant pleads guilty or is found guilty at the Crown Court, the usual sentence is imprisonment.
What has probably happened is that the copywriter had no legal qualifications or experience, and the Easy Read was then published without anyone with legal qualifications or experience at the MoJ bothering to check that the Easy Read was accurate – that is, before publishing it for people with learning difficulties to rely on when they are accused of serious crimes.
The MoJ is not in a good state internally; but telling people with learning difficulties that they are guilty if accused of serious crimes unless they can prove they are innocent is surely a low-point.
A MoJ spokesperson said this afternoon:
“Easy read guides are an important way of providing information to people in simple and straightforward language. It is crucial to ensure these documents are precise and as helpful as possible. “We are reviewing this guide and will remove it from our website while this process takes place.”
I was also told in response to my specific questions:
Q: Why has the MoJ not withdrawn this document?
A: The document will come down from the website today so we can review it.
Q: Who at the MoJ approved this Easy Read for publication? and Why was this not properly checked by anyone before publication?
A: As part of the review we will look at how and why it was published.