How do labour law and public procurement intersect with one another?
Interview with Dr. Amy Ludlow, fellow at the Gonville and Caius College in Cambridge and Affiliated Lecturer at the Faculty of Law. Amy undertook her Ph.D at Trinity College in Cambridge and has published extensively in the field of labour law over the last few years. What brings her to the PPP is her recent book Privatising Public Prisons: Labour Law and Public Procurement Process.
I like to start the show by discussing or putting the spotlight into the interviewee’s big idea for public procurement, so let’s start there, what is your big idea for public procurement?
I think really what I was trying to do with the book was explore competition in public services, but from the perspective of social sustainability and by that I really mean this kind of co-existence of economic and non-economic interests, and co-existence in ways that serve long-term inclusive societal prosperity. So I was interested to explore how we procure public services and how, the ways in which we procure might affect the employment relationships, but more than just terms and conditions of employment, how they might affect employment cultures or practices of staff who are at the frontline delivering those services, and I guess connected to that is how that affects the quality of those services. So I think I was probably trying to probe the ideology of public procurement from a social and empirical perspective, and I did that in the context of a prison so Birmingham Prison.
Let's start there, why did you pick a prison to do your research on and what is your most important finding of that work?
I’ve had a longstanding interest in prisons and we’re blessed here in Cambridge with having a really good Prisons Research Centre at the Institute of Criminology and when I first applied for my PhD I had thought that I would explore the, actually terms and conditions of employment of working prisoners, and, so their labour rights and how we protect those rights, and then I went along and chatted to Alison Liebling who is the Director of the Prisons Research Centre, and she said ‘mmm, that’s interesting but there’s a fascinating world out there in terms of privatisation, have a look at that’, and she had various contacts and it just kind of spiralled from there, and the study started out as being a comparative study of one already privately-managed prison and one public prison, Birmingham, that were both going through the same competition process and I originally intended this to be a kind of comparative exercise to see how privatisation might affect the prisons differently.
In the end, because of how the competition panned out, Birmingham became the most interesting venue for research because what happened in October 2011 was that it became the first operational public sector prison to be privatised, and the operational bit was really important to me from a Labour Law perspective because that meant that we had a pre-existing workforce that were going to be transferred across to G4S, so the Birmingham competition became a really interesting testing ground for lots of law from a kind of social perspective.
And in terms of findings, what is your biggest highlight?
I think probably I’d say that we’re not smart enough about how we procure public services and to some extent that’s, that’s not revolutionary, there are lots of other people who’ve said...
...but just I think we inadequately recognise the potential and the importance of properly managing the social aspects of procurement processes. Staff matter because they provide the services upon which we all rely and also because they are inherently deserving of respect and value, it’s just a proper, proper thing to do. So I’m arguing really that we ought to be much more socially ambitious in our procurement, we need to use it to pursue things like Living Wage Policies, to promote Trade Unions that represent and empower staff, to increase employment, for example, among vulnerable marginalised groups, maybe sort of the antithesis of what Albert Sánchez Graells might have been arguing for I guess!
I should have had you both on the same podcast...
Yes! Chalk and cheese I think!
Drilling a little bit more into the detail, how hard was it to bring your expertise in labour law in industry relations into specific sector public procurement and more, even more specifically, into the prison settings?
It was tough. I mean it definitely took more time and more investment to do well than I probably could have imagined at the start. So as I said, I’m fortunate in Cambridge that we’ve got this fantastic Prison Research Centre, the Institute of Criminology, and that gave me the opportunity to engage in quite extensive fieldwork before I went into Birmingham, and also just to become really familiar with the sociological and criminological literature to properly understand prison staff and the history of privatisation and competition in the sector and that was really important, particularly because I used what I call quasi ethnographic methods, because I think it’s, I feel a bit vulnerable about this methodologically ‘cos I don’t have a very rigorous social science training, but the fact that I was, I spent more or less a year in Birmingham Prison, with keys and hanging around in a structured way with staff, chatting to them informally, really understanding their world and what this process was doing, and that long-term immersion in a field is quite exposing.
Prison staff are also very quick-witted which means that they very quickly catch you out, so I think it’s really important, in terms of research and credibility, that I internalised and really tried to understand, as much as possible, their worlds from a non-legal perspective before I went in. Of course, you can do all the preparation in the world and that, different things arise in the field and that’s kind of the joy of doing ethnographic work and fieldwork, that it sounds like a, like a kind of genuine discovery, but it was a long process and required a lot of support from colleagues from other disciplines.
I can relate to your difficulties and challenges because when I did my Ph.D I also used empirical research methods and found it sometimes so alien and so different from what I was expecting.
Absolutely. No, no, no, that’s so true, that’s so true. I’d got these really neat and tidy, you know, when you’re applying for access you say it’s gonna be like this and it’s gonna work out perfectly, and I’m gonna do these clean, 45 minute interviews with fifty staff and it’s just. But actually it takes a huge effort to develop trust and credibility in the field and so it’s got to be this process of slow immersion, I know there’s this whole kind of slow science movement, and I really do believe, believe in it, that you’ve got to invest in that entry into the field and I could never have got the level of access and openness and trust from staff, you know, of all camps, had I done it otherwise. So, yeah, definitely recognise best plans being corrupted or changed by the field!
In your book you talk about, well you use at least a couple of anecdotes to illustrate your difficulties and to illustrate the culture shock that you felt working in that environment. Could you get into a little bit of detail of those?
Yeah, so Birmingham Prison has a reputation for having quite a traditional staff culture and traditional in the sense of some cynicism, some hostility, it’s a very male typically middle-aged sort of staffing profile, I mean that’s to generalise, and I obviously didn’t look or sound like a lot of the staff and so there were some, definitely some important moments where they were kind of gate-keeping moments, where I had to, I don’t know about altering my identity, but definitely I talk about being tolerant of behaviours that I wouldn’t normally tolerate, so stuff like, you know, sexism, language, particularly when describing prisoners, so, that’s quite objectifying language, so calling prisoners ‘bodies’ for example, calling serving the dinner ‘feeding’, and these are quite, I mean they sound probably more shocking to people who are not familiar with prisons than they are, but they’re definitely indicative of a cultural kind of problem.
So I went through some fairly challenging encounters with certain key members of prison staff and once I had established that I could cope with that, they would describe it as banter, and also was genuinely interested in understanding their world, which meant rocking up to the prison at 7 am and leaving at nine o’clock, so doing a full day’s shift with them and talking to them at those points of the days where prisoners are not unlocked and they’re a bit freer and there are a few quotes in the book where prison staff are saying ‘you know, have you not got a home to go to Miss’, kind of thing! ‘Why are you still here, you must be paid a fortune to do this’, and I have to say, you know, actually no, I’m really in it for the love, I’ve been doing this as a PhD student!
And that, those sorts of just being there and being visible really mattered to staff and just being persistent and inquisitive, occasionally asking some naïve questions, sometimes deliberately naïve questions, and getting them to show you their world, I think was how I eventually did it. But there were some moments when I thought ‘what have I done’, I could be doing doctoral research in Cambridge, reading a book in a library and it would be a hell of a lot safer and easier and less exhausting, but you know, at the end of it what you get is fantastic data, and also this opportunity to develop as a person by exposure to all of these really different encounters and it’s fair to say I’m now completely hooked on prisons. So, you know, they’re just fascinating institutions and institutions about which I feel really passionate in terms of improvement.
So you see yourself continuing to do research in the field, in that specific field?
Yeah, not least because there are so few lawyers in the field so I feel now that I’ve taken all that effort to understand history and staff culture and stuff I’m reluctant to let that slide, so I’m staying active in the field.
Any new projects that we could talk about, that you want to do on the area?
Yeah, so following the book I’ve kept an interest in prisons and since Birmingham there’s been a change in policy that prisons now are benchmarked rather than put out to competition, so private sector costing is being used and applied to public sector prisons, so that’s been a major development since Birmingham that has resulted in significant staffing changes and restructuring, and so I’ve been trying to trace through some of the impacts of that alongside, so after the book, a team, of which I was part, went back to Birmingham and did a three-year longitudinal study to track the prison’s progress and performance, and following that, we’re interested in how institutions, prisons, are altering and are restructuring and what we observed in Birmingham in the three years post-privatisation was kind of a traumatised institution. So we’re trying to follow, follow that narrative in terms of altered staff behaviours, withdrawing from wings and that shaping prisoner experiences.
And I’ve been involved recently with a study of prisoner suicide rates, so you might know that the suicide rate in prison has gone up in the last few years and there are complex, complex combination of factors for that, but one of the factors I think has to be the various changes to prison staffing and stuff.
But more related I suppose to the human context, I’ve just been asked to join Jeremias Prassl’s British Academy Against Other Rising Star’s grant project in Oxford which is looking at the future of European Labour Law and I’m going to follow up on the public procurement side of things looking at the implementation of the new directive, space for social policy within the new directive, and in terms of how it’s being implemented. So I’m hoping to do a small comparative study looking at implementation within the UK, so I’m very interested in regional variations in Wales and Scotland, but also looking at the Netherlands and tentatively I think Sweden, to look to see how they’re implementing the directive, but also to see how they are using, or pursuing, social policy.
Going back to the book, there’s a couple of pages that I found really interesting and I was not expecting to see that in your view the fact that Birmingham Prison had been transferred to the public, from public sector to the private sector, had an impact on minorities in terms of staff, staff minorities, and also on staff turnover. Could you talk a little bit more about that?
Yeah, so the minorities point was really interesting, what happened in terms of the composition of the Senior Management Team is that a team that had previously been fairly diverse, both in terms of gender and in terms of race, became an all-white, you could call it pale, male and stale, but all-white male team and what was interesting was that, in fact, the quality issues received the most amount of coverage I think in the procurement documentation which I analysed, and the fact then that that very visibly didn’t translate into practice post-transfer was interesting to me, and was indicative, I think, of the fairly general low-profile of social policy within the Birmingham competition that I describe in the book which, you know, I think is for a variety of reasons that I talk about in the book, so the complexity of the rules that meant that the procurement team were just focussed on survival mode, the kind of silo approach to how they do procurement, that procurement was seen as a very specialist function that was really hived off from the rest of the institution, rather than being embedded within it, which meant that sometimes the best people to be involved weren’t involved in the commissioning process.
But also that one of the purposes at Birmingham of the competition was in fact to break the Trade Union so there’s a problem, there was a problem in Birmingham about the Prison Officer’s Association local branch having too much power and so one of the explicit purposes of the procurement exercise in Birmingham was to break that power. So it’s not surprising then that social policy wasn’t perhaps very high on the agenda in the Birmingham context.
But I think I take particular objection to the use of competition and privatisation for that purpose, and I think it strengthens the kind of moral imperative on commissioners in that context who provide adequate support to staff given that they’re devising a process that aims to strip that support away by virtue of the Trade Union.
So that’s the kind of equality and SMT side of things, and then, yeah, the staff turnover point, lots of staff left and actually lots of staff were encouraged to leave, sometimes by virtue of financial incentives and that, to me, seriously qualifies the starting point under the, so I talk about the transfer of undertakings protection of employment regulations, so then the starting point there is that in principle when you privatise a public service all staff transfer across on the same terms and conditions of employment. So that empirical finding really tends to cast doubt on the level of protection that those regulations offer and I don’t know, it just seems a bit weird to be, because it must be the case that the commissioner knows about the envisaged staffing changes because they signed off the bid, to that to me, strengthens again the moral case for them taking social protection seriously within that context, which is, it’s clear from the book, which is not what I found.
So this kind of really grey area within the GP regulations where actually there’s a considerable discretion left to the incoming employer to restructure and that’s what I found, so staff, old staff leaving with their more expensive contracts of employment to be replaced, or in some cases not replaced, but where they are with staff that are considerably cheaper to employ.
So I think, yeah, all in all I, staff turnover and kind of impact on minorities I kind of used those to question whether there’s adequate attention being paid to the social policy, social protection stuff within the Birmingham competition, and I suppose to question as well the interaction between the Public Procurement Rules and the Transfer of Undertakings Regulations.
True, but I’m still trying to figure out, because obviously I come from a different background, but I am still trying to figure out why the privatisation would necessarily lead to the impact on minorities or turnover, or it was just a mistake in the way that that particular process was conducted.
So, I think in terms of the minorities I absolutely don’t think it’s inevitable, I think it’s a symptom of lack of pro-activity on that social policy front within the procurement context. To safeguard under-represented groups, or minority groups, I think requires an active strategy and there wasn’t a level of consciousness to support that. But in terms of staff turnover, there is an inevitability about it in the prison sector because staff constitute about 80% of a prison’s running costs and we know that one of the objectives of competition and privatisation in the prison sector is to save cost. You can only really save cost in an old prison like Birmingham by cutting staff, and that of course has to be disclosed or certainly intentions around staffing have to be disclosed as part of the bid.
So we’ve got this interesting conflict between tupee which sort of says ‘don’t worry, everybody’s transferring across’ and the procurement side of things where it’s obvious that there’s going to be some restructuring in this context and restructuring in terms of, yeah, loss of a number of staff but also erosion of terms of conditions.
Did you have access to the actual bids and final contract?
Yeah, so obviously you have to work around commercial and confidence, so I had access to a lot of the procurement documents, I had access to the final, the final contract, there’s one part of it that’s in commercial and confidence, which is really just about numbers, about costs, and I’ve spoken to some of the bidders, although obviously they are, they’re concerned about confidentiality as well and protecting intellectual property and stuff, yeah.
One of the things I thought it was pervasive through your book but you, you did not actually spell it out directly, was that perhaps prisons are not the best sector to privatise...
...from a Competition Law perspective, so you made argument from a Labour Law, from industrial relations not to do so, and you mention Competition Law across the book but you stop short of saying ‘prisons are natural monopolies’ which is, would be, and was my impression when I read your book, ‘prisons are natural monopolies’, ergo that is a key argument to add in favour of the arguments that you used against privatisation.
Yeah. No, I think that’s absolutely right, I mean I’m not a Competition Lawyer so I’d probably dodge that bullet, but I also think it’s partly reflective of my own desire to engage with this field. I kind of feel like in this sector I had to meet the policy on its own terms, so I felt like I had to, in a way, accept OK, they’re going to privatise something in this field and so my starting point was less of a concern to say ‘let’s scrap privatisation’, because there’s actually quite a, particularly in the prison sector, there’s lots of critiques of privatisation in the sector on kind of ethical and moral grounds, all sorts of things, constitutional grounds, and I kind of just wanted to explore what happened.
So I think you’re absolutely right, that that’s a brilliant point that could be made alongside the arguments that I’m making, and I think having now done this study my view has strengthened that this is, certainly if we are going to continue to procure prison services from private sector then we need to do it much better. I’m less persuaded now than I was at the start of the study about the benefits of using privatisation in the sector, although I think if you look historically it is hard to refute the sentiment that private prisons have undoubtedly shaken the sector up.
So there have been increases in the quality of some of the public service publically provided prisons because of contestability. It’s always a bit of a slippery slope that when you start criticising privatisation you also don’t want to be seen as just accepting poor public service provision! So, yeah, it’s kind of that delicate, I can see that privatisation, it’s almost been a necessary evil, but I feel like with Birmingham they took it one step too far and with all of the kind of benefit I think of privatisation was kind of done with Birmingham, and if they wanted to do Birmingham then they needed to be much more intelligent about how they commissioned and rose to that challenge of having an existing workforce.
You mixed legal and also social sciences research methods in the same research piece. What was the value that you gained from doing this kind of research in comparison with more traditional doctrinal approach?
I simply couldn’t have come to the conclusions, or found the things that I found without using empirical methods, without extending beyond law and doctrinal methods. It altered and enriched my thinking in ways that, yeah, they just wouldn’t have appear... I wouldn’t have seen connections, I wouldn’t have approached the field in the way that I approached it, so they were pivotal to the book, to this study.
One final question, if you had a piece of advice to give the next Amy Ludlow which is going to do some sort of cross disciplinary or multidisciplinary research in this area, what would be your piece of advice?
Get lots of research money so that you can stay somewhere other than a Travelodge I think! No, it would be to be brave, to recognise what you know and be confident that other people are going to be interested in what you know and your perspective, but to also be humble enough to kind of reach out and say ‘oh that’s interesting, you’re using this word, what do you mean by this’, because there is a risk that we speak in different languages, disciplines speak in different languages, but some of the most interesting things happen when you bring those different languages, different ideas, together in a way that’s quite brave, but that you also recognise when you’re speaking at cross-purposes.
So I think taking confidence that you as a lawyer have some unique skills and perspectives and insights that other, people from other disciplines will value, but just being humble enough to recognise when you’re at the frontiers of your learning and checking that we’re all singing from the same hymn sheet!
And with that bombshell I think it’s time for us to end!
Thank you very much Amy for giving us half an hour, after many tribulations we managed to actually record this podcast and do something that is very interesting.
Amy is on twitter with the handle @ACLudlow. As to me, you can find me at my blog telles.eu or on Twitter where I use the two handles, @Detig for general discussion and @publicprocure for public procurement related topics, ‘til next time.