Offender Rehabilitation Bill [HL]

Lord McNally Excerpts

Wednesday 5th June 2013 Lords Chamber

[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 Beecham]

It is glottal—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.

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[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.

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[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.

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[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.

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[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]

I thank the Minister for his reply.

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[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 McNally]

Outrageous—withdraw.

[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.