Offender Rehabilitation Bill [Lords]

Lord Hanson of Flint Excerpts

Tuesday 14th January 2014 Commons Chamber

[Meg Hillier]

I thank my hon. Friend for her comments.

I am also worried about some of the companies that might come into this. I serve on the Public Accounts Committee, and I challenged the big public sector providers that appeared before us recently on whether they would bid for contracts in areas where they had no experience. They all denied that they would, but we have seen, in the Public Accounts Committee, in other Committees and on the Floor of the House, example after example of companies that bid for contracts because they are good at bidding but that do not actually have a background in delivering the relevant service. They then have to backfill by recruiting people to take on those jobs. I have dealt with the Minister on constituency matters and know him to be assiduous, and I am sure that he will bear that point in mind, but I think that it is worth reiterating that it is a very serious matter. Companies should not be bidding for huge contracts in areas where they have no experience because that fragments the service.

Fragmentation can be good where there is specialism, where there are smaller contracts, perhaps run by specialist voluntary sector groups, or indeed by private companies if they have the necessary level of expertise, but they have to work together. We are in danger of seeing another approach whereby the MOJ and the Government put out big contracts and the smaller specialist providers simply do not get a look in. They might get the odd crumb from the big contractors’ table, but they will be squeezed out. That is particularly true in mental health, one of the local concerns in my constituency.

There is an important concern about local accountability. I am a great supporter of extending freedom of information in the first instance, even with limitations, to private sector companies that deliver public contracts paid for by the taxpayer. It should be the tax pound that determines whether there is freedom of information, not the nature of the delivery body. Most parties in the House support some degree of contracting out, but we need to ensure that transparency is built in. Companies have told the Public Accounts Committee that they are in favour of a much greater degree of transparency, so perhaps the Minister will take this opportunity to challenge them to stand up for what they say and make that part of the bidding process.

New clause 4 is important—I will not repeat all the arguments Members have made—because we need proper scrutiny. If we look at reoffending as a whole, we see that there are other ways of looking at it, for example by looking at mental health support or the Work programme. We know that offenders who come out of prison with a job are less likely to reoffend, but does the Work programme, which is provided by another Government Department, go into prisons to ensure that offenders have jobs for when they leave? Perhaps we should be challenging them to step up to the mark and provide job opportunities as a major plank of what we all want to see: less reoffending, particularly by offenders given short-term sentences.

In summary, the Public Accounts Committee has seen far too many poorly managed large Government contracts. The Cabinet Office is pushing hard to see that procurement is done in a different way that allows smaller companies a bite of the Government contract cherry and to stop the big companies being able to snaffle public money without being held properly to account. This is an opportunity for the Minister to consider, even at this late stage, allowing something in the contract to ensure that the big companies are required to work effectively with the small companies and not, as many of them do, to dodge their responsibilities later by saying, “Actually, we can’t quite deliver what we promised, so we’ll do it differently, but we’ve taken it all on.” That is often how they get around that. That will need constant monitoring and an audit of what happens with the contract. If this is to go ahead, I urge the Minister to tell us how the Government plan to audit the impact and the delivery of the service.

[Mr David Hanson (Delyn) (Lab)]

I begin by echoing the comments of my hon. Friend the Member for Darlington (Jenny Chapman) about our late colleague Paul Goggins. I followed him as a Justice Minister, doing the job he did when he was in the Home Office and had responsibility for probation, and I know how well respected he was in the sector, by officials and the community at large. I also had the pleasure of sharing time with him as a Northern Ireland Minister, where he was also well respected. This is my first opportunity to put that on the record in the House. I will attend his funeral on Thursday, along with many colleagues across the House, to pay my final respects to Paul for all his work.

I wanted to speak in this debate for several reasons. Nobody disagrees with the Government’s general premise for dealing with offenders sentenced to 12 months or less in prison. They are often prolific offenders who go on to reoffend. They are often tomorrow’s serious offenders. It was an aspiration we had when I served in the Ministry of Justice to try to reduce their reoffending. We need to involve the voluntary and private sectors in supporting rehabilitation work for individuals who go to prison and come out within 12 months. Housing associations, voluntary providers and employers all have a role to play. That can be done in a positive way by the voluntary and private sectors.

Let us therefore not have a debate today on the difference between the Government and the Opposition on the need to involve some elements of the voluntary and private sectors. Instead, I want to raise my concerns about the issues addressed by new clauses 1 and 4. New clause 1 would ensure that we put a parliamentary brake on reorganisation, pending proper parliamentary scrutiny, and new clause 4 would put in place a pilot to test some difficult and serious matters in relation to which mistakes—they will be made, because that is the nature of the business the Minister deals with—will have a real impact on the community at large.

New clause 1, which I fully support, would prevent the Government from selling off or restructuring the probation service unless the proposals had first been laid before, and approved by, both Houses of Parliament. It is no secret that if the Government did that this year, they could put a Bill before Parliament and get it through before the general election. They could have it scrutinised and probably, because of the votes they have in this House, get their way. I object to the Government using the Offender Management Act 2007 to achieve that objective. I declare an interest, because I was the Minister who took that Act through the House. At the time I was pressed strongly by many Members on my own side, including my hon. Friend the Member for Hayes and Harlington (John McDonnell), on whether it meant the privatisation and break-up of the probation service. I was pressed very hard about whether it meant, in practice, the abolition, ultimately, of probation trusts.

I gave assurances during the Bill’s passage through the House and I want to repeat them today, not because they have not been heard here before, but because they support what my hon. Friend the Member for Darlington says in new clause 1 and are worthy of repetition. On 18 July 2007, I, as the Minister, said from the Dispatch Box:

“There will be a mixture of commissioning. Some will be at national level, because in certain cases and with certain contracts that will be the best way of securing a strong and efficient service. There will also be a strong role for those commissioning work at regional level. As my hon. Friend surely accepts, economies of scale will sometimes be necessary, and some services will be best purchased and commissioned at that level. However, there will also be a need for local probation trusts to act not just as service deliverers but as commissioners of services from the voluntary sector, or from others, providing a proper service to help prevent reoffending at local level.”—[Official Report, 18 July 2007; Vol. 463, c. 352-53.]

I said that in support of what my noble Friend Baroness Scotland and the then Lord Chancellor, my noble Friend Lord Falconer, said in another place when introducing the Offender Management Bill. I would be interested to hear what the Minister has to say about that. I am very pleased that the hon. and learned Member for Harborough (Sir Edward Garnier) is present, because I said it in response to a Lords amendment that he supported and that sought to do exactly what the Minister is seeking to do now to the probation service. We rejected it and I put it on record that the Offender Management Bill would not be used for that purpose.

I would be grateful if the Minister reflected on Pepper v. Hart from 1992. Legislation can be interpreted according to what a Minister said at the Dispatch Box about what they thought about a particular interpretation of a Bill. My assessment is that during our deliberations on the Offender Management Act, I, on behalf of the then Government, rejected from the Dispatch Box an amendment that sought to do what the Minister is now doing; supported the aspirations of my noble Friends Lord Falconer and Baroness Scotland; and spoke in support of retaining probation trusts to commission at a national, regional and local level. As my hon. Friend the Member for Hayes and Harlington has said, it is an abuse of this House for the Minister to try to use that legislation to secure his objective.

Will the Minister—just for me, so I can sleep easy in my bed—put on public record the legal advice he has received that says that he can do what he is doing, so that we can test his interpretation against the potential interpretation of lawyers outside the House under the terms of Pepper v. Hart?

[Jeremy Wright]

I am not sure I will be able to help the right hon. Gentleman sleep easier in his bed. Equally, I do not want to pull rank on him, but I have to put to him something that was said by his then boss—the then Home Secretary and the now noble Lord Reid—on Third Reading of the Offender Management Bill in this House:

“I can therefore give an assurance today…that the core offender management tasks of the probation service—for example, offender report writing, offender supervision and breach proceedings—will remain in the public sector for the next three years.”—[Official Report, 28 February 2007; Vol. 457, c. 1024.]

Will the right hon. Gentleman explain why his then boss did not say “for ever” instead of

“for the next three years”?

[Mr Hanson]

I do not wish to upset the Minister, because he is a decent cove, as far as he can be with his brief, but the noble Lord Reid was never my boss. I have never served under him and he never line managed me in any way, shape or form. When I served as a Justice Minister, my noble Friend Lord Falconer and my right hon. Friend the Member for Blackburn (Mr Straw) were my bosses. What I said at the Dispatch Box at the time was said on their behalf. We supported a publicly supported probation service.

[Jeremy Wright]

rose—

[Sir Edward Garnier]

rose—

[Mr Hanson]

I give way to my former shadow, the hon. and learned Member for Harborough.

[Sir Edward Garnier]

I think my shadow is rather bigger than it used to be. I want to encourage the right hon. Gentleman with the tedious little point that at least he and I have remained consistent over the past seven years, so why not comfort himself with that and then we can put this to a vote?

[Mr Hanson]

The point I am trying to make is that I support new clause 1 because the Government are trying to use the 2007 Act to take an approach that the then Ministers, in both Houses, rejected. I accept that the Minister believes that he has a legal basis to do this. I simply ask him to publish it, so that we can test it in due course. I am happy for the Minister to intervene, but he will have a chance to respond later. Like my hon. Friend the Member for Darlington and other hon. Members who have spoken, I remain concerned about the proposal, because I believe it is a gamble.

[Jeremy Wright]

I take the right hon. Gentleman’s point that I will have a chance to respond later and I suspect I will have quite a bit to respond to by then, but I wish to address this specific point. I apologise to him for my misunderstanding of the chain of command back in the days of his time in government. However, unless I misunderstand him, I do not think he is suggesting that the noble Lord Reid was not speaking for the Government on that occasion. On the question of whether I will publish legal advice, I can do better than that by referring the right hon. Gentleman to the Offender Management Act itself. Section 3(2) states:

“The Secretary of State may make contractual or other arrangements with any other person for the making of the probation provision.”

That is clear authority to do what we are doing, is it not?

[Mr Hanson]

This is the nub of the argument: I accept that the Minister believes he is acting in good faith under the Act, but what I am saying is that the interpretation I gave from the Dispatch Box, and that other Ministers gave in another place and in this House, was that the Act could not to be used for the Minister’s current purposes. My interpretation was that the Act could be used to contract the voluntary and private sector to deliver some services, but not the core probation service, which is what the Minister seeks to do. We can disagree about that—it is a matter of conjecture—and I think that the appropriateness of our comments could be tested under Pepper v. Hart.

If the Minister votes for new clause 1 he will have an opportunity to bring back new proposals and, as has been suggested, to pilot them so that we do not have to take a serious gamble and have an artificial split between public and private providers, or face the risk of cherry-picking and big companies hoovering up contracts. Moreover, we would not have the risk brought to my attention by a probation officer in my own constituency who corresponded with me this very week. She will remain anonymous because of her current status, but she said in her letter:

“This system is not tested. It’s just ideas and assumptions based on political ideologies. Knowing the work as intimately as I do I can’t tell you how risky this is.”

I know from my time in the Ministry of Justice that there will be risks and challenges in the management of offenders. One of the serious cases with which I had to deal as a Minister was when a low-level offender who was being supervised by the then London probation service broke into a property in Lewisham, close to the constituency of my hon. Friend the Member for Lewisham East (Heidi Alexander), undertook a burglary and, in doing so, murdered two individuals, set fire to them and burned the property down. The offender was given sentences of 40 and 35 years respectively and is, as we speak, serving them at Her Majesty’s pleasure. That was a low-level offender who committed a high-level offence. There is always risk.

I accept that that happened under the probation service—mistakes will happen; this is a risky business—but I am worried about the steps the Minister is taking without the pilot proposed by new clause 4 or the brake and proper parliamentary scrutiny proposed by new clause 1. That raises the risk even higher in a system that, by its very nature, is risky.

[Mr Gordon Marsden (Blackpool South) (Lab)]

On that point, does my right hon. Friend agree that there have been discussions about the difficulties of making judgments about low-risk people left in the private sector? He may recall that I raised in the House the case of Jane Clough who was murdered in the Blackpool Victoria hospital car park by her former abusive partner while he was on bail. The Government accepted the thrust of that campaign when they made changes in relation to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Does that not show that the ability to have an artificial division between the two will not work?

[Mr Hanson]

I am grateful to my hon. Friend for mentioning that case. Given the nature of probation service business, mistakes will be made. My contention is that mistakes that might currently be made could very much be exacerbated by the fragmentation of the service and the potential downgrading of its quality, as well as by the fact that the existing public accountability will not be as clear cut.

[Mrs Anne Main (St Albans) (Con)]

The right hon. Gentleman is making a very interesting speech. I am sorry that I missed its beginning, but I was at the Backbench Business Committee. Has he dealt with the sifting process? Some of my constituents have expressed concern that it is done at a snapshot in time, as they have been allocated to two different services based on the window of 11 November. Has he tackled that?

--- Later in debate ---

[Mr Hanson]

I am grateful to the hon. Lady for raising that matter, which just exacerbates and adds to our concerns.

The process is never a precise one. I want the Minister to justify—perhaps not today nor by agreeing to new clause 1, but through a proper parliamentary procedure or the evaluation of pilots—how his proposals for a radical change in the probation service will do what he wants, as well as what my hon. Friends and I want, which is to reduce offending and reoffending. My worry is that the Minister’s proposals—in many ways, they are adjacent to the provisions in the Bill—might increase the reoffending that may occur for reasons that have been mentioned.

I urge the Minister to consider new clauses 1 and 4 in particular, and to publish, for the House to scrutinise, the basis on which he has so far made decisions in relation to the 2007 Act.

[Heidi Alexander (Lewisham East) (Lab)]

It is a pleasure to follow my right hon. Friend the Member for Delyn (Mr Hanson). He has great expertise in this matter, given his previous ministerial role. I am not sure that I will trouble the Minister with the same level of detail about the proposals. I want to make a short speech on some of the things I have learned about how the probation service operates in my area and about the need for us in Parliament to have a vote on whether the wholesale privatisation of the probation service should go ahead.

In recent weeks, I have visited Lewisham probation trust and met its staff. The Lewisham trust is very busy. It ranks fourth among London boroughs with respect to the complexity and risk of the cases with which it deals. A quarter of the cases it deals with involve young people aged between 18 and 25.

When I spoke to staff, they expressed very serious concerns about the plans to fragment and break up the probation service and, indeed, to privatise great chunks of it. They believe that the proposals actually endanger some of the important and innovative work they are doing. For example, they recently set up a specialist team to deal with the problem of young offenders, whereby staff time is split between the youth offending service and the probation staff so that the two services join up better. They told me that the proposals the Government wish to force through in the next year will lead to huge upheaval and massive duplication, and will make it less likely that the work that is so important in our community for reducing reoffending is moved forward and can bring about the outcomes we all want.

The management of the trust told me that instead of being externally focused on reducing reoffending and protecting the public, over the next couple of months their priority will be to support staff through the transition and to make sure that they move cases between the split services in a way that ensures that no cases are lost and no mistakes are made. That does not make sense to me. The priority for the management and those with experience should be to ask, “How do we reduce rates of reoffending out there in the community?”

What will happen when the case load is split? As I understand it, 70% of the cases will be dealt with by community rehabilitation companies and others will be left with the new national probation service. How will those really difficult decisions be made about the risk that such young offenders present? The people who work in the probation service tell me that such judgments, particularly those about young people, are very difficult to make.

--- Later in debate ---

[Jeremy Wright]

I agree with my hon. Friend that it is important to keep existing staff informed about what is going on. We are trying very hard to do that. If there are specific issues in her area, I am happy to look at them. We are keen to ensure that staff are informed. If she will forgive me, I will come back a little later to the pace of the changes that we are making, which has been a substantial issue this afternoon.

Before I do that, I want to make a couple more points about the background to this point, and the issue of further parliamentary approval for what we are suggesting. I have already made the point that section 3(2) of the Offender Management Act 2007 states:

“The Secretary of State may make contractual or other arrangements with any other person for the making of the probation provision.”

In Committee, the Opposition were unable to dispute that the power that they legislated for is clear and unambiguous. The phrase

“contractual or other arrangements with any other person”

does not mean solely with probation trusts or trusts commissioning other providers, or solely with the public sector.

[Mr Hanson]

I do not wish to take up too much time on this point, but the Minister will know that when that debate took place, the intention was that the national probation service and the Ministry of Justice could contract for unpaid work, for example, on a national basis, but that for core probation services the probation service locally would still be responsible for the lead provision under that Act.

[Jeremy Wright]

Again—I made this point earlier when I intervened on the right hon. Gentleman—I do not think that Lord Reid could have been any clearer on Third Reading. No doubt under considerable pressure from Back Benchers in his party, he undertook that those core functions, including two things that we do not propose to move from the public sector—advice to court and breach of proceedings—would remain in the public sector for three years. That was not in perpetuity, not as a matter of principle, but for three years which, conveniently enough, took him up to the date of the general election. I think we can all take from that a pretty clear understanding that the Labour Government were not promising that those functions would stay in the public sector for ever; they did it to take them up to the general election.

[Mr Hanson]

Can we be clear? Lord Reid was not the Minister responsible when the 2007 Act was dealt with in these Houses of Parliament. I was the Minister of State, my boss was Lord Falconer, and the Minister in the other place was Baroness Scotland. Those were the three Ministers dealing with the 2007 Act in June 2007.

[Jeremy Wright]

I understand the right hon. Gentleman’s point, but it is pretty clear that Lord Reid was speaking on Third Reading of that Bill on behalf of the Government. If the right hon. Gentleman thinks that what Lord Reid was saying did not represent the Government’s position, he had better take it up with him. We have to go by what Hansard tells us.