(10 years, 11 months ago)
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Lord Beecham
“Probation service reform: Parliamentary approval
No alteration or reform may be made to the structure of the probation service unless the proposals have been laid before Parliament, and approved by resolution of, both Houses of Parliament.”
Lord Beecham
My Lords, we now come to the black hole in this legislation. Astonishingly, given the scale of the changes proposed for a major national public service, the Bill does not deal with the proposed restructuring of probation. It is quite remarkable that this should be the case.
I have complained from time to time about the Government’s habit of engaging in pre-legislative implementation. What they are doing to probation is, in fact, worse: they appear to be about to implement their proposals without any legislation at all. What we see in the Bill is a series of consequences of their proposals rather than a proposal. This is in connection with a service which has met and exceeded all its targets, which won the British Quality Foundation gold medal for excellence for its achievements over many years and which has very high ratings from those with whom it has to deal: 98% of victims approve of the work of the probation service in the feedback that they have supplied and 82% of supervisions were completed satisfactorily. The record on the timeliness of reports to courts was as high as 99%. Only just under 50%—49%—of what is by any standards a difficult client group were placed in employment after serving their probation order.
Yet the Government now propose a massive change which will effectively exclude around half the work of the probation service from its future deployment. Some 70,000 cases will be effectively privatised. The probation service will be unable, in its present form, to bid to carry out the work which the Government have determined will be subjected to competitive tendering.
The service has done well in reducing reoffending. The Secretary of State has drawn attention to the reoffending rates. He has noted that, for those serving sentences of less than 12 months, reoffending rates have been rising. We have heard today about the scale of the problem of that group. Of course, that is a group for which the probation service has no responsibility. Where it has responsibility, for those with longer sentences, it has done extremely well in reducing reoffending. The Government propose effectively first to nationalise and then virtually to privatise most of the probation service. They will centralise control. Probation trusts will disappear. There will be 21 areas in which the work will now be carried out by tendering. This will mean that much of the work currently carried out by the probation service, and all the work on short-sentence offenders which has not been carried out by the probation service but which the Bill seeks to address—I repeat that we welcome that—will now be carried out on a contractual basis.
There are many concerns about that. Certainly, one of the effects is likely to be a reduction in the degree to which justice is local along with greater difficulties for voluntary organisations wanting to be involved in the work. There would effectively be a binary system of risk, with categories of low and medium risk to be dealt with by organisations other than the probation service, but with the probation service being responsible for high-risk cases. Of course, this appears to ignore the fact that there is movement between the categories. Around 25% of offenders will change from one category to another, many of them becoming higher-risk.
The proposals will clearly lead to confusion. There is a risk, to which I shall return in greater detail when we discuss an amendment specifically dealing with the issue of risk, of the public lacking the protection that a properly administered probation service can afford in the 15,000 or so cases a year that move into the higher risk category. As we shall explore later, it is very difficult to see how those cases will be effectively managed.
We need a proper legislative framework for this exercise of transferring responsibility into the private sector. The Government display, as usual, a touching faith in the competence of the private sector but their record in this area of justice is not very convincing. There have been the huge profits made in relation to an inefficient and inadequate system of tagging, with many failures of the system and a great cost to the public purse. The Minister will no doubt say that that has been changed, that there will be new equipment, and so on. Be that as it may, the original providers certainly did very well for themselves but not very well in relation to the purposes for which they were contracted. Just yesterday we heard the appalling news about the young offender institution run by Serco, one of those massive organisations that purport to be able to do everything anywhere. It was a terrible report on the mistreatment of offenders in a young offender institution.
The unwavering determination of the Government to move from public provision to private provision potentially poses a risk to the interests of the community in matters of safety. We need a proper legislative framework if there is to be any change in the probation service. We need reassurances about a whole range of issues and we need parliamentary approval for a scheme which may bring changes to the probation service, a service that is highly successful.
The purpose of Amendment 20 in the names of the noble Lord, Lord Ramsbotham, and myself is to seek to ensure that any change in the probation service will take place only after the full details have been discussed and approved by Parliament, rather than by executive order or, as it may be, by statutory instrument. This is so important that it deserves to be dealt with by primary legislation. That would certainly be my preference. At the moment we do not have the details and I do not think that the Government have worked them out. They are rushing to implement this programme. Mr Grayling wants things in place in time for the general election. This is too important an issue to be rushed in this way, especially when they are doing so behind the curtain.
We have seen many changes to major public services under the present Government. The health service is in turmoil, despite all the warnings and a very long legislative process. There is a grave risk that we shall see something similar in terms of the impact on the service if the Government press ahead with untested, undebated and unapproved legislation to change what has been a very successful service. I hope that the Government will think again about this. I hope they will see the force of having their proposals properly scrutinised, debated and approved, if that is what Parliament wishes. At the moment, it does not look as though Parliament will have that opportunity, and that simply is not good enough. I beg to move.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I need the guidance of the noble Lord, Lord Beecham, on the correct pronunciation of the word “chutzpah”.
Lord McNally
Glottal or not, that is an extraordinary piece of chutzpah. He knows full well that the powers that we are taking to reorganise the probation service were embedded in his Government’s 2007 Act. It is interesting to recall that during the passage of that Bill through the House of Lords, the issue of parliamentary scrutiny of orders creating, abolishing or amending probation trusts was highly controversial. Originally the Bill did not include any parliamentary scrutiny but the Delegated Powers and Regulatory Reform Committee identified it as an issue for further investigation. My noble friend Lady Anelay of St Johns tabled an amendment successfully introducing the affirmative resolution procedure to this clause in the Lords. The then Government overturned the amendment during ping-pong by tabling their own concessionary amendment providing for the negative resolution procedure on the basis that that would provide sufficient scrutiny without unduly taking up parliamentary time.
That is the background. Nothing was done behind the curtain or anywhere else. No one has ever heard me, from this Dispatch Box or anywhere else, attack the record of the probation service. The probation service does an excellent job, and I hope it has a very clear future ahead of it with a national role. However, we have to ask whether these things could be done better and more efficiently. As well as the successes of the probation service, we have had as a background to this debate the very disturbing levels of reoffending. I agree with the noble Lord, Lord Beecham; the private sector will be very much on trial during this period. We in government who have been preparing the contracts and guidelines for this new partnership will have to work very hard to make sure that they are watertight in terms of delivering value for the taxpayer.
Lord Beecham
My Lords, we are in Committee and it is 9 pm, so I certainly will not press an amendment on this occasion. However, I must say that I am not persuaded by the arguments, such as they were, put forward by the noble Lord. At a fairly early stage in his reply he spoke of the savings that would be generated by the experience of the private sector. However, the private sector does not have experience of running probation. Serco, Group 4 and all these huge outfits which purport to be able to run all kinds of things, from the Olympic Games to prisons and many other services besides, do not have experience of running probation.
It is far from clear from the impact analysis, about which we heard earlier, what the financial implications will be. The noble Lord says that there will be a good relationship with the voluntary sector. That was part of the message that the Secretary of State used to sell the Work Programme in his previous job. So successful was that scheme that some 3.5% of people on unemployment benefit have actually been found a job. The voluntary sector, which was at first quite enthusiastic about the prospects, found itself effectively treated as bid candy and largely excluded from any of the major programmes that were advanced. It is rightly fearful that that will be the case if the Government’s proposals are implemented.
The noble Lord says that there is a need for a National Probation Service. That is questionable. I certainly was not party to the discussions of the legislation to which the noble Lord referred, but it is quite conceivable that changes to the probation service as envisaged, to be approved by the negative procedure, related to changes in the structure of 35 probation trusts. What is being proposed here is something much more radical. It is effectively the abolition of a probation service—certainly the abolition of all the probation trusts—and a centralisation that will be crucial to ensure that the Government’s intentions in this Bill are carried out.
Of course, however, the probation service, national or otherwise, is not going to be involved in the short-sentence provisions. The probation service will be excluded from providing for medium and low-risk offenders. As I have said, the estimate is that 70,000 cases a year will be run by the new private providers. There is no question about that, unless the Government accept a later amendment of mine—I am not very optimistic about that—which will allow the probation service to tender for such work. The Government are so keen on competition that they will not allow the probation service to tender for that work at all. Therefore, I cannot see the argument that the noble Lord is trying to make as being at all plausible.
In my view, we are seeing an ideological determination to limit the role of a major public service. In so far as there is a national service, I do not think that that is conducive to what is needed on the ground, which is, as we have heard and as the noble Lord accepted when discussing an earlier amendment, the need for close working relationships between all the organisations involved in the rehabilitation programme at local level. I cannot see how that can be driven by a national body without any local organisational manifestations. I have to say that it is arguable that 35 trusts is too few anyway, but it is certainly better than none at all. It is certainly better, whatever contracting system is being proposed, than the 21 areas to which the Government will be reducing the tendering process.
This is a deeply flawed proposal and, whatever happened in the past, it ought now to be the subject of proper parliamentary consideration, if not in primary legislation—as was the opportunity with this Bill—then certainly by the affirmative procedure. If the noble Lord is unrelenting, as he appears to be or as he is compelled to be, then on Report we will have to take this issue further and at that stage seek to test the opinion of the House. However, as I indicated at the outset, tonight is clearly not the occasion to do so and I therefore beg leave to withdraw the amendment.
Lord Beecham
“Proposed reform of probation services
(1) Subject to subsection (2), before instituting a system of payment by results for the provision of services to supervise offenders, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of both Houses of Parliament.
(2) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.
(3) Any payment by results pilot shall be based upon existing probation trust areas.”
Lord Beecham
My Lords, another aspect of the Government’s proposals is the development of payment-by-results programmes. I will begin by quoting the report of the Justice Select Committee in August 2012. The committee said, of contracting out on a payment-by-results basis, that,
“we are not convinced that the Department has the necessary commissioning and contracting capability to achieve its objective. Currently its commissioning processes are often poorly designed, the stages involved do not whittle down contenders appropriately and bidders do not receive sufficient feedback at the end of the process. Furthermore, the potential benefits of payment by results programmes may not be realised because of structural problems in the Department and the National Offender Management Service”.
That was as recently as August last year. Will the Minister say to what extent these matters have been considered by the department, to what extent the situation has now improved and in what respects it has improved? It was a fairly damning indictment by the Justice Select Committee.
There was some discussion of this issue at Second Reading, and many questions were asked. The Minister—I think it was the noble Lord but it may have been his colleague—said then that discussions were taking place with potential providers. It would be interesting to know at what stage those discussions now are. What is the basis on which a payment-by-results scheme will be made? We have heard various suggestions that there will be a flat fee, which will be topped up by some kind of bonus. However, that is likely to be modest in relation to the total cost of the service. If it is not modest, will contractors take the risk? Who knows on what basis this will happen? There is very little about this—of course—in the infamous impact assessment. Will the noble Lord indicate what percentage of the total cost the Government consider will be paid by way of bonuses?
There are more questions to be asked. Will the scheme be the same for all offenders? We heard yesterday—I think for the first time—about the concept of cohorts, to which reference has already been made. The idea is to not look at individual cases but to take a whole group and study the reoffending rates—or rather, as we heard earlier by way of clarification, the reconviction rates. However, we do not know for what period that will apply. Will results be judged on a year’s basis, or will any offences taking place over a period of, say, two or three years—which one might have thought would be a more reasonable approach—be taken into account? If so, how will they be taken into account? It will not do for the Government to say that they do not yet know because they have not reached a conclusion with the contractors. They ought to know the basis on which they are advancing the new policy, and they ought to be able to tell your Lordships’ House—and, indeed, the world at large—about what they are doing.
Serious criticisms of this process have come from a variety of sources. The director general for public services at the Treasury said:
“We have now got a situation at the Ministry of Justice where Chris Grayling … is going to take a payment by results approach to almost the whole of probation. But some of us who have been around a long time get very nervous about panaceas … It is quite hard to get a firm handle on the numbers”.
I suspect that she is not a paid-up member of the Labour Party, or even of the National Association of Probation Officers.
The National Audit Office commented on the aim of getting smaller organisations involved—which is, as ever, one of the more attractive features that the Government wish to promote, although it turns out that they are doing so more in theory than in substance. The National Audit Office said:
“It is likely to require significant efforts by the Ministry for it to achieve its aim of creating a diverse and sustainable market, at least in terms of prime providers”.
At the risk of cherry picking, it said,
“the use of a binary measure could encourage providers to concentrate their efforts on the offenders least likely to offend and prevent them from working with the most prolific offenders”.
It is not clear how the cohorts are going to be made up. The noble Lord will no doubt say the matter will be resolved. Can he give any indication of how the cohorts are to be composed?
Lord McNally
My Lords, as the noble Lord, Lord Beecham, bandied statistics around from authoritative organisations, I should add that the National Audit Office estimated that reoffending by ex-prisoners cost the economy between £9.5 billion and £13 billion in 2007-08, and I doubt that the figure has gone down since then.
It is all very well to talk about pilots and taking the time to conduct them. However, as I said, we are dealing with a section of reoffending which the previous Government thought they would deal with, tried to do so and then backed off. A lot of what we are dealing with here is a long-standing problem that is still costing the economy a great deal of money. Therefore, I think we are entitled to look at what works best in the present system and then bring forward positive ideas to tackle this very difficult problem.
As I approached my third year in my present office, I began to get slightly embarrassed about pilot schemes because all we seemed to do was go round and round in circles conducting pilots. Pilot schemes can be valuable but I suspect that we abandoned certain pilots because there was nothing significant to be gained from continuing with them, and we already had the feedback from the pilots started by the previous Government in Doncaster and Peterborough. I hear what the noble Lord, Lord Beecham, is saying about our following a high-risk policy. It is certainly a radical policy and delivering it will, no doubt, demand significant effort by my department. What we have learnt from the pilot schemes that have taken place, from the experience of payment by results in other parts of Whitehall and from the existing involvement of the voluntary sector in rehabilitation gives us confidence that if we apply ourselves, taking some of the warnings that he has rightly made, our solutions to the matters before us will work.
Our experience with initial payment-by-results pilots has increased our confidence about designing robust contracts that drive the required behaviour and help generate improved value for money. We have drawn lessons from pilots about establishing performance targets that will allow us to measure, with confidence, the impact of providers on reoffending rates; of designing payment mechanisms that reward providers only for achieving genuine success. We have looked at the benefits of co-design with the market; early provision of data, where possible; the importance of engaging with a wide range of voluntary sector providers in building diverse supply chains; the new complexities in managing PBR contracts and how we can best meet them within the department.
We have not been static on this: we are working on the kind of contracts. The consultation response set out our phased approach to implementation over the summer. We can complete the final details of our design and test robustly some of the details of our plan. The Secretary of State has committed to transparency in this process and we are publishing information on our website as soon as it is ready. We recently published information on our proposed payment mechanisms for the market to consider.
It is all right. I must not cause tensions between departments but when the noble Lord, Lord Beecham, quoted somebody from the Treasury saying that he did not think the Ministry of Justice had a handle on the numbers, the terms “kettle” and “black” came to mind. I had better not go further down that road but before that Bench starts nodding too much about having a grasp of the numbers I would remind them of recent history. I am, nevertheless, pretty confident. I see the teams at work who are going to deal with this in a very businesslike way.
I do not resile from what I am saying. We are doing something extremely exciting, challenging and radical which is opening up the real opportunity—which escaped the Opposition during 13 years in Government—of dealing with this particularly difficult, complex area of reoffending. I will therefore resist Amendment 21 which would require the details of any system of payment by results to be laid before and approved by resolution of both Houses before being implemented. It would also require the piloting of payment by results for a three-year period, subject to independent evaluation and based on existing probation trust areas.
As noble Lords will, no doubt, be aware, we are currently piloting a number of different approaches to payment by results across government and have gained valuable learning data. The lessons we have drawn from implementing our pilots and from the experience of other departments give us confidence that we can design and commission robust contracts that drive the right behaviours and generate value for money. It is, of course, extremely easy to get quotes from various organisations about this but we are moving this forward. The Government have consulted carefully on the principle behind our intended payment mechanisms. In the recent response to our consultation, we explained how we had taken on board comments that the payment mechanism must incentivise providers to work with all offenders, not cherry pick them, including the most prolific, and how we had developed the payment mechanisms accordingly. We have now published a draft payment mechanism for discussion and will continue to engage closely with potential providers to make sure that we get this right.
As I have explained, given the current financial constraints and the importance of delivering effective rehabilitation services to all those who need them, maintaining the current trust structure and piloting payment by results within the existing area are not options open to us. In the light of these arguments, I ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, of course I will withdraw the amendment at this stage but it is certainly a matter to which we will wish to return on Report. The Government have consulted widely but have not consulted Parliament. If it were not for the amendment, there would be no debate during our consideration of the Bill on the question of payment by results; the provisions would simply be implemented. I do not even know whether that would be done by regulation or executive order. I do not know what the current framework is but, whatever it is, it would not be the subject of debate in this Chamber before decisions were made. Again there has been no consultation on a major change.
The Minister refers to there being experience of payment by results in other areas, but this is a unique area. To begin with, it relates ultimately in its potential impact to public safety, and we will shortly discuss issues of risk. People’s lives and livelihood are at risk in this area and that makes this a different case from less dramatic eventualities, whatever the normal process of payment by results might mean. The Government no doubt piloted the Work Programme; that experience has been pretty much a disaster. What have the Government learnt from that in terms of payment by results, whether on the supply side, which turned out to be pretty exclusive when it came to voluntary third-sector organisation, or in terms of the outcomes? It would be interesting to know what areas the Government have tested and with what results. I could table a Parliamentary Question but perhaps the noble Lord can give an undertaking that either he or whatever part of Government is responsible—perhaps the Cabinet Office—will write instead and explain more fully the basis on which the comparisons have been made. That would be an interesting exercise.
Fundamentally, we are in territory where it seems that decisions have been taken pretty much on the hoof. Although I do not blame the noble Lord, we still have not received an explanation for the withdrawal of the two pilots in this area—the ones that we know took place. We are not allowed to know why they were stopped or what the evaluation was. I repeat now for the third time—that makes four questions in all—why were the pilots stopped, why have the Government refused the FOI request for the evaluation and will they now release it? If they are not prepared to do so, they must have something to hide or something which at least they wish to ignore. That is not a satisfactory basis for a change of the magnitude envisaged without discussion, other than by virtue of the amendment. However, I beg leave to withdraw the amendment.
Lord Beecham
“Provision of probation services
In any scheme (including pilots) for the supervision of offenders under sections 2 to 6, probation trusts and local authorities shall not be precluded from tendering for contracts.”
Lord Beecham
Well, my Lords, I return to the dance floor to gavotte once again with the Minister. The issue of risk is serious because it illustrates the potential dangers of this binary system of provision, to which I referred earlier. The definition of the categories of risk is somewhat controversial, to put it mildly, but we leave that aside for the moment. The probation service will not be responsible for low and medium-risk offenders, as defined, and is not even allowed to tender for these offenders. Yet high-risk offenders will be consigned exclusively to the probation service.
As I indicated earlier, there is a movement between categories of some 25%, suggesting that something like 15,000 people were moved from the medium to the high-risk category. How will that be dealt with under the contracts? At what stage will the contractor who was looking after offenders on the basis that they were medium and low risk be required to notify a change of risk? Will they indeed be required to do so? Will they be able to make that assessment? Will they be required to advise the probation service about it? These seem to me to be important questions.
The National Association of Probation Officers has produced some very interesting examples of people who were not regarded as high risk for the purpose of their current treatment. In recent documentation, NAPO actually gives 52 examples of so-called medium-risk cases. These include an offender previously convicted of Section 20 wounding, of a recent assault, who was regarded as medium risk. Another was convicted of wounding and had previous convictions for the possession of cocaine. Another was convicted of manslaughter and also had a previous conviction for manslaughter, but he was regarded as only medium risk. A current offender convicted of grievous bodily harm, with previous convictions for criminal damage and possession of a knife, was also regarded as medium risk. There was an offender with a Section 20 wounding conviction who had previously been involved in a Section 18 wounding, a knife possession, burglary and criminal damage; again, it was a medium-risk case.
One might ask what kind of assessment this is. Why are these people not regarded as cases which should properly be dealt with by the probation service? The Government acknowledge that the probation service has the qualifications and skills to deal with these offenders. Why is it that under the new arrangement these so-called medium-risk offenders, with all their past convictions, will be beyond the reach of the probation service? That is no good for them, and potentially dangerous for the rest of us. There are clearly very real risks in this course. My next quote is not from a Treasury civil servant and not from the National Audit Office, which the Minister affects to discount. It is from the Chief Inspector of Probation’s submission to the consultation document. She states:
“The interface between the dynamic management of risk of harm and PbR model, with its focus on reducing reoffending, in our view creates an inherent tension. We do not believe that this tension can be successfully managed within the framework proposed. Any lack of contractual or operational clarity between the public and private sector providers will, in our view, lead to systemic failure and an increased risk to the public”.
Of course, one might say that she has an interest because she is the Chief Inspector of Probation; but she is an inspector, not the probation service as such. It is even noted that the Police and Crime Commissioner for Devon and Cornwall, who I think is a member of the Conservative Party, has said that:
“I feel the risks are very high here. Probation do a very, very good job and I am concerned about the future”.
I suspect that many noble Lords—there are not too many of us in the Chamber—will share those concerns. We are talking about serious risks and a system which, on the face of it, seems unlikely to be able to cope properly with them. That is something which this amendment seeks to address. Although I will not press it to a vote tonight, it is certainly something to which we will want to return on Report. I beg to move.
Lord McNally
My Lords, I am not sure how this has come about—I have been advised not to gloat because it might be our fault rather than that of the noble Lord, Lord Beecham—but the risk amendment is Amendment 23; he has just moved Amendment 22. To save him having to speak to Amendment 22 later, it may help if I say that we understand the need to bring a wide range of providers in. We are helping a number of staff within probation trusts who have already expressed an interest in being part of a mutual. On 20 May, the Government announced a package of measures to support the voluntary sector and public service mutuals, in particular through the Cabinet Office mutual support programme, which is providing intensive one-to-one support to prepare the first cohort of seven fledging probation mutuals for the competition. Although we do not believe that a probation trust should itself be able to compete, we will be bringing forward this solution—of mutuals—and of course we can explore that later.
I turn to Amendment 23, to which the noble Lord has just spoken. The amendment will require the definition of risk of harm to be prescribed by statutory instrument and subject to the affirmative resolution procedure. While I do not agree that there is a need to prescribe the definition of risk of harm by statutory instrument, I welcome the opportunity to explain how risk of harm is assessed and to reassure noble Lords that the assessment of risk is not simply a tick-box exercise.
The Offender Assessment System provides a structure for National Offender Management Service staff to assess an offender’s static and dynamic risk factors and risk of serious harm. It is a nationally recognised and understood tool that is supported by national guidance for probation and prison staff. The OASys combines actuarial factors, such as age at first conviction and gender, and dynamic factors such as substance misuse or anti-social attitudes, as well as clinical judgment. Following a structured assessment process, offenders are allocated to a risk of serious harm category that ranges from high to medium to low. A range of potential future harms are considered, including harm to self, to staff, to known victims and to members of the public. Within the current assessment process, there are already agreed definitions for what constitutes high to low risk of serious harm. “Serious harm” is defined as an event which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, can be expected to be difficult or impossible. The risk of serious harm is the likelihood of this event happening.
It should be recognised that the risk of serious harm that an offender poses is dynamic and should be kept under regular review. There are numerous behavioural changes that could indicate an increase in the level of risk of serious harm. It would be difficult to enshrine that range of behavioural change in law which could apply meaningfully to individual cases. The current assessment process enables a practitioner to use all the available information to assess whether an offender is at risk of causing serious harm and give differential weight to the information as it relates to that individual. Under the rehabilitation programme, the National Probation Service will decide on allocation, in each case using a set of clear rules. They will retain management of every offender who poses a high risk of serious harm and every young offender who falls under multi-agency public protection arrangements—MAPPA. This includes offenders who are convicted of serious sexual and violent offences. We are consistently updating and improving the validity of the tools that are used to assess an offender’s likelihood of offending and risk of serious harm.
Lord Beecham
My Lords, it is just as well that I am not being paid by results. I apologise for skipping, as it were, Amendment 22. I heard what the Minister said, but the reality is that the probation service will not be allowed to tender for the short-term prisoner contracts. Whether there are probation trusts or not, that is a mistake. If we are going to have a mixed economy, let it be a mixed economy, and let at least the probation service be allowed to tender. But even if it is not allowed to tender, perhaps the noble Lord would consider whether other agencies—for example, local authorities as they are involved in crime and disorder reduction partnerships—might be allowed to tender. The Minister may be able to respond to that. I do not know.
In relation to the risk issues, the problem will potentially arise out of the change of risk. Perhaps the Minister will not be able to reply to this immediately, but if a proportion are deemed to have changed their risk profile, what impact would that have on the contracts? I know we are talking about cohorts not individuals, but we are talking about potentially 15,000 cases. Even with 35 contract areas, that is several hundred people per contract area. Presumably, it will have some significance. We are not talking about a minuscule proportion of cases. How will that impact on the contractual arrangements? What provision will there be in the contract regarding that particular outcome? Again, this is not something that I necessarily expect the Minister to be able to respond to tonight, but I should be grateful if he would confirm that he will write to me and place the letter in the Library of the House. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“Requirement on Secretary of State to request probation and supervision providers to report on breaches and handling of services contracts
(1) The Secretary of State shall require all providers of probation and supervision services to provide information, report numbers of breaches, and to provide a comprehensive assessment of their management of the contract to provide probation services.
(2) The provider of probation and supervision services shall be required to produce an annual report, which shall be laid before Parliament.
(3) Where appropriate, the report should include deemed outcomes of supervision orders, including a breakdown of supervision order requirements, and the explanation for breaches and the failure of offenders to comply.”
Lord Beecham
My Lords, this is a very straightforward matter. The amendment simply seeks the collation of information from providers, whether of probation services or otherwise, so that it can be collated in an annual report and received in Parliament. I think that is certainly necessary in the early years, although maybe when the system settles down, in whatever form it ultimately takes, it will be a different matter. However, given the sensitivity around the proposals and, as the Minister himself puts it, the “radical” nature of the proposals—and bearing in mind our shared objective here, which is to reduce reoffending and to afford as much support as we can to people who have offended but need to reintegrate into society—it seems to me that the request that the information should be available to us is a fairly basic one. I hope the Minister can accept the spirit, if not necessarily the precise wording, of the amendment. I beg to move.
Lord McNally
My Lords, the noble Lord is always reasonable in his requests, but the implications are less reasonable. The impact of the amendment would be that all providers, regardless of size or place within the supply chain, would be required by law to produce an annual report for Parliament, as it does not distinguish between prime providers and smaller providers within the providers’ supply chain. This would provide a disproportionate level of scrutiny on a single aspect of service delivery.
I assure noble Lords that there will be a defined data set within the providers’ contract. This will detail what performance information providers have to produce and who is responsible for producing it. We envisage that this would include information such as the number of offenders supervised under top-up supervision and breach rates. We will ensure that reporting requirements strike a balance between providing enough information effectively to hold providers to account for their service delivery and minimising the bureaucracy required to collect and report the data. The Government will publish data and statistics relating to probation service delivery in line with our current practices. I hope the noble Lord, in the light of this, will agree to withdraw the amendment.
Lord Beecham
I take the Minister’s point and beg leave to withdraw the amendment. I indicated that the wording might possibly be capable of being refined. If we can achieve that one way or the other, that would be satisfactory.
Lord Beecham
My Lords, this is simply a probing debate, to explore the rationale behind Clause 8, in particular the length of the extension period contained in it. The extension period is one year, and I would just like the Minister to elucidate the thinking behind that and why that particular period has been chosen in respect of these matters.
Lord McNally
An extended determinate sentence or EDS is the sentence that is given to dangerous offenders. This is the sentence that replaced the IPP sentence in December 2012 as a result of the changes made in the Legal Aid, Sentencing and Punishment of Offenders Act. An EDS is made up of a custodial term whereby offenders serve at least two-thirds of the sentence, after which the most serious offenders are considered for release by the parole board. After release, offenders are subject to extended-licence supervision. Clause 8 essentially closes a loophole whereby offenders serving an EDS could, although only in wholly exceptional circumstances, spend less than 12 months under supervision on release. Clause 8, by requiring the extension period of licence for these sentences to be at least a year, ensures that in every case offenders released from custody will serve 12 months under supervision. It is highly unlikely that an extended sentence would be imposed that resulted in less than 12 months of supervision. For this to happen, the sentence imposed by the court would have to relate to a dangerous offender who had received a surprisingly short custodial period where the court had chosen not to extend the licence period. I should stress that this is extremely unlikely to occur and there is no example of it having happened but we are taking the opportunity of this Bill to ensure that it does not happen in the future.
Lord Beecham
“(4A) After section 76(5) (subordinate legislation) insert—
“(5A) An order making any provision by virtue of section 63 or 70 regarding Class B drugs may only be made if the statutory instrument has been laid before and approved by resolution of each House of Parliament.””
Lord Beecham
This is a fairly simple amendment. It requires the Government to seek approval for changes to the list of class B drugs for the purposes of the Bill as set out under the heading,
“Drugs and offenders released during custodial sentence”.
If it is thought sufficiently significant for class B drugs to be involved and for the list to be changed, then, following the effective precedent of the Bill in dealing with drugs issues, it seems to me that the Government should proceed by way of an order to be debated here. It is presumably not likely to be a frequent occurrence but one would hope that some element of parliamentary oversight would be involved. It may be that the Government intend that anyway but it is not clear from the Bill. Perhaps the Minister could clarify the position. I beg to move.
Lord Ahmad of Wimbledon
I am thankful to the noble Lord, Lord Beecham, for summarising his thinking behind this amendment. Clause 10 amends Section 64 of the Criminal Justice and Court Services Act 2000, which allows for the Secretary of State to impose a drug testing requirement on offenders aged 18 or over released from prison on licence. The Bill deals with efforts to improve the rehabilitation of offenders and to cut reoffending. Many noble Lords will agree that tackling offending behaviour will often mean tackling an offender’s problem with drugs. Drug use is common among offenders serving custodial sentences. One study reported 64% of people surveyed as having used class A drugs and 74% as having used class B or class C drugs.
Research has also shown that drug use among prisoners is strongly associated with reconviction on release, with the rate of reconviction more than doubling for prisoners who reported using drugs in the four weeks before custody, compared with prisoners who had never used drugs. And it is not just class A drugs that are associated with higher reconviction rates. Offenders who use class B or class C drugs in the four weeks before imprisonment had a reconviction rate of 48%, compared to 30% for those who had never used drugs. What drives this association will vary from offender to offender. For some offenders who are dependent on, say, cannabis or amphetamines, their crime may be linked to the need to fund their drug habit. For others, a propensity to misuse such drugs may expose them to other offenders, risky environments or situations that encourage further reoffending. That can make the process of rehabilitation that much harder. If a connection, direct or indirect, with class B drugs, such as cannabis or amphetamines, is a factor in a significant number of offenders ending up in custody or reoffending, we should do what we can to support offenders to break that connection. Testing for class B drugs is designed to complement those activities.
Turning to the substance of the amendment moved by the noble Lord, Lord Beecham, Section 70 of the Criminal Justice and Court Services Act 2000 currently provides a power for the Secretary of State to specify via statutory instrument the class A drugs for which an offender released on licence can be tested. This power is subject to the negative resolution procedure. In extending this order-making power to cover class B drugs, we have proposed to keep the negative resolution procedure. It is important that if changes need to be made to the list—for example, if drugs are reclassified or renamed or new drugs appear—that can be done quickly. When initially specifying what class B drugs are within scope, we will, of course, want to look in detail at the evidence for their usage by offenders, their links to reoffending and the availability of testing equipment. I should also point out to noble Lords that the Delegated Powers and Regulatory Reform Committee did not raise any issues with this extended power remaining subject to the negative resolution procedure. I hope the noble Lord, Lord Beecham, will feel able to withdraw his amendment.
Lord Beecham
My Lords, I thank the Minister for his reply. I am satisfied with it as it clarifies the situation. I rather thought that that would be the case, and I am grateful for his confirmation that that is correct. I beg leave to withdraw the amendment.
Lord Beecham
“Resettlement prisons
Before the Secretary of State may institute the proposed system for resettlement prisons, whereby an offender is held in a prison designated to the area to which he will be released, for a period of months before release, such system must be set out in regulations and laid before both Houses of Parliament for debate.”
Lord Beecham
My Lords, this is yet another proposal from the Government that is not included in the Bill and about which there again seems to be no real opportunity for parliamentary oversight. The notion of resettlement prisons is attractive, but there are a number of questions to be asked about it, in particular, about how the system is going to work and the potential costs. There are also questions in relation to women prisoners especially because at the moment there are only 13 prisons for women and there is concern that, since they are not evenly geographically distributed, women may be housed in one place and then moved to what is, effectively, an all-male institution close to their home because there is no women’s prison in that area. There is concern that that would be potentially very difficult. I do not know whether the Government have in mind locations for the resettlement prisons. The figure was about 70, if I remember correctly. Have they given any thought to the position of women in that context, given the relatively small number of women’s prisons dedicated for that purpose?
By sheer coincidence, the Minister has kindly replied to a Written Question today giving me information about the home locations—he is looking puzzled; I assure him he has—of prisoners held in the north-east. The figures are quite interesting and reinforce some of the concern that I and other noble Lords have or might have about the situation. They show that 59% of young offenders have home addresses outside the north-east region and 39% inside it. So 39% of young offenders are in prison in the area where resettlement would occur but 59% are not. The 2% difference is because the data are not clear. The figures are pretty much reversed in respect of adult prisoners.
I repeat that 59% of young offenders are from outside the north-east region but are imprisoned there, while only 41% of those in the north-east are from the region. Some 39% of adults, those 21 years and over, come from outside the region, while 61% from inside. These are substantial percentages and the numbers are quite significant—289 young offenders and 2,048 adult offenders are currently in prisons other than in regions to which they would presumably be returning.
The Minister’s letter, which he may or not have read before he signed it—
Lord Beecham
I am glad the Minister is prepared to do that. The letter says that the vast majority of prisoners transferred to NOMS North East Region are from adjacent areas. An adjacent area could be the north-west of England. I know that there are significant numbers of prisoners from the north-west of England in prisons in Northumberland. The north-west region runs from Cumbria to Cheshire. To say that is an adjacent region does not take us very far, especially as I suspect most of the offenders will come perhaps from the Merseyside and Manchester conurbations. That would be a reasonable inference. This is a significant number of people to be resettled somewhere nearer home and that is just from one region. How much have the Government thought through the implications of dealing with this? Have the Government given consideration not only to the numbers but the length of time during which the resettlement will take place? I raise this point because it has been raised by organisations concerned with women prisoners especially. Has it been looked at from their perspective?
Incidentally, the letter says, in a point which rather echoes the point about women prisoners and which may account for the figures for young offenders, that there are fewer establishments holding young offenders and they are on average likely to be further from their home area. How realistic is this resettlement process likely to be? It looks to me as though the north-east region is accommodating considerably more than its “fair share” of prisoners. It would be interesting to know how many north-east prisoners are housed elsewhere but I suspect that we have a surplus of accommodation in the north-east and that is not going to assist in the resettlement process. How developed are the Government’s plans? The amendment therefore seeks details and for a scheme to be set out in regulations and laid before both Houses for debate. That would be ideal but at any rate some oversight of the detail and the implications of this scheme are needed, which as I say is welcome in principle but it is difficult to see quite how it is going to work. It may be that the Government are going to take some time over this and that may be necessary, but any indications at this stage would be gratefully received. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I first thank the noble Lord, Lord Beecham, for tabling his amendment and for then detailing specific issues in relation to women, young adults and a region with which he is far more familiar than is any other noble Lord currently in the Chamber. Nevertheless, he raises some important issues specifically about women prisoners. Indeed, we heard earlier during the debate about the importance of this issue.
From a general perspective, the main purpose behind this proposal is to co-ordinate better the delivery of rehabilitation through an offender’s time both in prison and then in the community. Most offenders will spend the final part of their sentence in one of their home area’s designated resettlement prisons, which may involve prisoner movement, but it is also unlikely to result in any significant increase to the number of transfers carried out.
On the issue of women prisoners and young adult offenders, it is very important that we make the best use of the existing provision for women offenders in the prison estate, both taking account of its size and the geographical spread. We will be consulting with both providers and stakeholders to design the most suitable resettlement arrangements for women offenders, ensuring that, wherever possible, women offenders are held as close to home as possible and with strong links with providers of rehabilitative services. In an earlier debate this evening, we discussed the importance that the Government lay on family issues, particularly in relation to women offenders.
Young adults have some of the highest reoffending rates, and it is crucial that these reforms are delivered to this group of offenders. Again, we are planning to consult providers to ensure that they design the most suitable model for young adult offenders, taking account of existing provision in the prison estate for this group.
The amendment itself would restrict the ability of the Secretary of State to set up a system for sending prisoners to resettlement prisons prior to their release by requiring this to be done in regulations. Such a restriction would be unprecedented intervention by Parliament in the operational management of prisons. The role is conferred by the Prison Act 1952 on the Secretary of State, although, in practice, the Prison Service is run by the National Offender Management Service, as noble Lords are aware. The power is a broad one for a very good reason: NOMS needs operational flexibility to respond swiftly to fluctuations in prison numbers and to move prisoners around the prison estate for a number of reasons, including access to appropriate interventions as a result of security information or, indeed, for the prisoner’s own protection. Policies for the allocation of prisoners are set out in the Prison Service instructions, which are published; accordingly, such policies are both accessible and transparent. I therefore hope, with the explanation I have given, that the noble Lord will find it appropriate to withdraw his amendment and agree that operational arrangements are matters more appropriately left to the Secretary of State.
Lord Beecham
I am not sure that I would leave very much to the present Secretary of State, but that is by the way. The question is surely that this is a welcome, novel scheme which ought to be at least discussed. I cannot see why there should be any inhibition on the part of the Government to laying out their proposals for discussion. It may be that seeking to deal with the matter by regulation may be regarded as a step too far but, at the very least, it should be subject to some parliamentary debate. There are people in your Lordships’ House who can contribute to that kind of debate very effectively, I should have thought. I do not necessarily include myself in that group, but there are people like the noble Lords, Lord Ramsbotham and Lord Bradley, and the noble Baroness, Lady Corston, with a record of involvement. These are the very people who should be contributing to a solution to a problem which the Government rightly identify and want to do something about; there is no difference between us on that. Why be so defensive about it? Why not be open about it, have the discussion and let us try to improve the situation with the contribution that Members, particularly of this House, are in a position to afford?
I do not see why the Government should stonewall on this issue. However, it is two minutes to 10 pm. The Chief Whip is with us; I tremble before her, as ever, and beg leave to withdraw the amendment.