Offender Rehabilitation Bill [HL]

Baroness Linklater of Butterstone Excerpts

Monday 20th May 2013 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, we return once more to the question of how we should be more effectively managing offenders in our society; an issue which is rather like the holy grail, so seductive yet elusive. We now have a new Minister at the MoJ, who is bringing to bear his own perspective and his own solutions to the challenges of the criminal justice world coming, as he does, from the world of business. We have seen, in particular, the initiation of payment by results, where financial incentives are being introduced as a means of encouraging service providers to step up their efforts to change offending behaviour through financial reward. Starting in Peterborough, which I have indeed visited, and Doncaster prisons, they have been regarded as pilots to this new approach, which is still in its relatively early days. Now, fired by the idea but ahead of fully-tested results, we are seeing the proposed extension to the management of a particular group of low-level, persistent offenders. This has significant implications for the probation service, the range of voluntary agencies in the field of offender management, the private sector—which has been growing like Topsy in the past few years—and, of course, the offenders themselves.

It is important to start with the current context; the number of people being sentenced to prison is dropping and last year there was a 5% decrease on the year before. Recorded levels of crime are at their lowest for 30 years, and youth crime is down 47% since 2001, thanks to the YJB. Surprisingly, the prison population itself fell in the last 12 months for the first time since 1999. However, the group that gives the greatest cause for concern consists of those relatively minor offenders, who are serving a year or less of whom at least 57% will reoffend—the figure goes up, the younger the offender. This is more than 50,000 people annually, as we have heard, so it is a huge problem which costs us all billions and which the Government are now attempting to address.

The focus of this Bill is on the 50,000 to 60,000 persistent, low level offenders who are serving anything from a few weeks to a year in prison and who currently have no automatic statutory follow-up support in the community and usually precious little during their time in prison. This is the most intractable group in the system and the Government’s aim to provide for them with a year’s statutory supervision and help, targeted to their needs, is potentially very important and welcome. This is, typically, a very vulnerable and challenging group with a range of coexisting difficulties, including drug and alcohol addictions, learning difficulties, mental health problems and generally chaotic lives. Again, this has been alluded to. Most have had no education past the age of 14, are unemployed, homeless and all are in need of help to turn their lives around if they are not to end up in prison again and again as they currently do. The benefit of individual support is not only the guidance it can give and the connections made but, ideally, the experience of a positive, personal relationship which is precious. The Government are to be congratulated on recognising and addressing this. This has the potential for changing lives if it is properly done. However, as anyone in the business, as I have been for years, knows, desistance cannot be imposed—prisoners must want to change.

The Bill raises as many questions as it answers, because the practicalities of catering for 50,000 to 60,000 additional offenders are huge and complex. How it is to be administered, by whom and with what skills or supervision, and at what cost, are left entirely unclear. There is no reference to what provision already exists across the country which could be built on and where there are already signs of success. Who are the skilled providers needed for such a task with such a large and challenging group? How many are available and how geographically spread are they? How will the Prison Service manage the reorganisation of about 70 prisons into “resettlement prisons”? Above all, once again, the question has been asked: at what cost?

The Government have said that there is no new money. It is expected that the private sector, and possibly the voluntary sector, will be in charge of the bidding for contracts, but how they will deliver such a service nationwide and how the need for budgetary arrangements for essential cross-departmental working at both national and local level will be choreographed are not clear. As we have already heard quoted, the Government’s impact assessment simply says that,

“we expect there to be significant downward pressure on costs from competing the delivery of rehabilitation services … This has the potential to cut prison and probation costs, reduce court backlogs and allow for savings on legal aid provision”—

ambitious, but—

“we have not quantified these benefits as we cannot predict the success rate of the providers”.

So it is an act of faith aimed at an end that we all seek but with means that we are yet to discover. I ask my noble friend the Minister to elaborate on the expectation of costs, without which I do not believe that this House could agree to these proposals.

One likely outcome, which is of widespread concern to many who already work in the field, is that of breach. With more than 50,000 to 60,000 people caught up in the criminal justice system through supervision for a statutory year, particularly for relatively minor crimes, this could have unintended costs. The experience with custody plus in 2003, already mentioned by my noble and learned friend and hero Lord Woolf, demonstrated that and was then scrapped as a result—it was a parallel scheme and was simply going to be too expensive. The very nature of this group’s needs means that the likelihood of breach is high, and already 6% of all prisoners are in prison for breach of licence conditions due to the lengthening of licence periods. Tailored, targeted and flexible supervision arrangements are therefore vital.

Moreover, young offenders, who are as adolescents particularly vulnerable to problems of transitions of all kinds, will find that, once they turn 18, they come into the Government’s new world of supervision, causing change and disruption at a difficult time in their lives. Currently, continuity of YOT supervision past 18 is routinely maintained to ensure continuity. The YJB and many others working with young people are very concerned that, without flexibility, including in the length of supervision, there is an increased risk of breach with this group, with all the costly, associated results of recall, courts, possible prison and general upheaval.

Can the Minister clarify the Government’s plans for the handling of the transfer of supervision to a new probation/private provider for this group? The YJB has responsibility for under-18s, and its work and skills are outstandingly successful. It has made it quite clear that the transfer, whenever it occurs, should be managed by public sector probation. It should be listened to as an expert on whom the Government rely. What are the Government’s plans for the handing of the transfer to a new probation/private provider and what scope is there for flexibility for this particular group?

Another element of concern is that young offenders who turn 18 before release will be treated for the purposes of their supervision as adults, with the same expectations and demands. This is contrary to accepted practice by the YJB that young people should not be managed as adults. Transition to adulthood does not have a neat cut-off point, and each young person’s development and maturity must always be the governing issue. The T2A pilots in three areas are examples of support tailored to these young people, both as part of community sentences and after release. NOMS and the Sentencing Council have recognised that this group needs properly tailored arrangements. It is a highly skilled and sensitive area and a particularly relevant one here, as these young people represent a significant proportion of the group as a whole. This in turn includes the issue of breach and how it is to be managed, which can have crucial implications for how young people in particular are managed. I hope that my noble friend the Minister can clarify why there is no reference to this in the legislation and little provision to ensure that custody will be used only as a last resort for breach. Otherwise, I fear that positive, constructive work risks being undone.

All the evidence shows that community orders are the best option for low-level crime. It reduces reoffending by 8% to 12 % and costs one-tenth of a year in prison. The Government are right to say that supervision and support are needed for virtually all the low-level offending that we are discussing. Even one short prison experience significantly undermines the chances of a person going straight and increases the likelihood of reoffending. The Government are absolutely right to say that supervision and support in the community are what work for this low-level offending—support which is flexible and tailored to need but which should not be used as an adjunct to prison.

This is precisely the work that the probation service has been doing for the past 100 years or so. It continues to offer supervision as successfully as any other provider for this group of offenders. I declare an interest as a patron of the probation trusts, along with my hero, my noble and learned friend Lord Woolf. The probation service has the skill, experience and knowledge, accumulated over its history, as well as a demonstrable willingness to work with the Government in taking forward their plans and cross-sectorally with a whole range of other providers, including the private sector—or “probation providers”, as they are to be called. There is a structure and a presence all over the country, so no set-up costs are required. The fact that the present Government plan to leave it with the role of working with the most difficult, high-risk offenders demonstrates a recognition of its skills and that it is a very safe pair of hands.

My concern is twofold. First, if this experience, skill and knowledge—which are not gained overnight—relating to this lower-level offending group are to be organised exclusively by the private sector, they are lost to this group. Secondly, the continuity of offender supervision would be fractured, particularly with the probation service taking the high-end offenders, because assessment of risk is not a static concept, and public protection will become a real concern.

The other responsibility that remains with the probation service is the management of potential or actual breach. In Transforming Rehabilitation, the Government state on page 23,

“the public sector will decide on action in relation to all potential breaches beyond a first warning, and will advise the courts or Secretary of State on sanctions or recall to custody”.

They go on to say that this is to be sure to avoid,

“the potential for perverse incentives for providers in breach decisions”,

and,

“will mitigate any risk that commercial interests play a part in contracted providers’ decisions on whether to instigate breach or recall proceedings”.

This is to acknowledge the possibility that “commercial interests” risk influencing or affecting decisions by private providers on the service or advice that they give and that the financial self-interest of a provider could influence the future of a vulnerable person on possible recall or breach proceedings. Meanwhile, it trusts the probation service to be properly accountable to the court. In the light of this, I ask the Minister to look again at this fundamental issue, which could undermine the basis on which plans for private providers are being presented. It questions the accountability of private providers for the delivery of community orders, which is highlighted here by the issues of breach and recall. Does it not also apply to the other services that they provide? I look forward to my noble friend’s reply.

The Government really do not need to reinvent the wheel. What is needed now is continuity, consistency and co-operation between all the professional agencies, which share an unqualified commitment to the reduction of reoffending that should be harnessed to deliver the outcomes that we all seek.