Offender Rehabilitation Bill [HL]

Lord Beecham Excerpts

Tuesday 11th March 2014 Lords Chamber

[Lord McNally (LD)]

My Lords, first I declare an interest as chairman designate of the Youth Justice Board.

I am breaking a promise that I made to myself not to intervene in MoJ legislation after leaving the Front Bench. However, I do so here because of unfinished business. When I spoke last, I warned the House that the amendment tabled by the noble Lord, Lord Ramsbotham, was defective, and so it proved to be. I also promised to keep the House fully informed about developments. I was mightily impressed by the amount of documentation that was provided in both Houses. I congratulate my successors Simon Hughes and the noble Lord, Lord Faulks, on the progress that has been made, as outlined in great detail by the noble Lord in his opening remarks. The truth is, as the noble Lord, Lord Faulks, said, there have been many hours of parliamentary debate on these matters, and the idea that somehow they have been smuggled past Parliament is plainly absurd. Hours of ministerial time have been afforded to the critics. The noble Lord, Lord Ramsbotham, acknowledged that in written submissions and meetings Ministers have been willing to discuss his concerns in detail.

I say to the noble Baroness, Lady Linklater, that it is not about our admiration or otherwise for the probation service. I am in awe of the work that probation officers do, and will continue to be so. However, we face a situation in which we could stay where we are, with the probation service as it is but probably facing increased pressures on expenditure and capacity to deliver—the same old same old—or we could embark on radical reforms that would release the resources to carry through proper reforms. The progress we have made is truly remarkable—30 bidders covering some 50 organisations, including 10 probation-based mutuals. This really is the dawn of a new era. I disagree with the noble Baroness; this is not the passing of the probation service.

I remember in the early part of this century following the debates about the probation service. What happened to it? It was turned into the poor relation of NOMS. In these reforms we are going to have a national probation service for the first time: the head of probation will have direct access to the Secretary of State, whereas NOMS does not even have a probation officer on its senior board. That is real progress for the probation service. We are going to have, as initiated by my noble friend Lord Marks, what I hope will become a chartered institute for probation, which will promote professional standards and best practices, not just in the National Probation Service but across the sector. As has been said several times—and each time everyone says how much they agree with it—we are going to have for the first time through-the-gate supervision and treatment for those sentenced to less than 12 months, a group populated mainly by young offenders and women offenders. That is another bonus.

I understand the concerns; it is very easy, when opposing things, to roll out the risks. We are dealing with a risk business. There are risks at the moment in the way in which we deal with very difficult, violent and vulnerable people but I do not believe that those risks are such that we should throw aside the opportunity radically to reform this sector to achieve the supervision we want for those with sentences of less than 12 months, which goes to the heart of reoffending.

It may be embarrassing to remember, but this legislation is being carried through under Labour’s 1997 Act. I followed the reports as the legislation went through: Labour carefully never guaranteed to the probation service that there would be no further reforms after 2010. I suspect that it was because Labour Ministers then realised that to open the door to reform of the under-12-months sector, get those crucial reforms and provide through-the-gate treatment, they also had to reform the probation system itself. That is why, when Labour proposed treatment for those with sentences of less than 12 months, the proposal had to be abandoned because it could not be afforded under the system at the time.

That is the reality. I have to say to the noble Lord, Lord Ramsbotham, that the delay that he wants offers no way forward. It would deliver an unreformed service exposed to further cuts with, as I said, no supervision for those with sentences of less than 12 months and no through-the-gate service.

The Government have put forward a package. Since the Second Reading of this Bill, I have presented it to this House as a package of probation reform where a whole range of voluntary and charitable organisations, as well as private sector providers, have brought forward these new ideas and initiatives into the sector to tackle reoffending and to promote rehabilitation. It is a reform of which I am proud. It is an honourable package offering protection for the staff and a chance to enhance the influence and professional standing of probation. It takes into account the protection of the public, and I have seen the testing of the various structures in that regard.

I agree entirely about the problem of government contracts but it is a problem that is not new to this Government or to the MoJ. A lot more work needs to be done and I believe it is already under way in the Cabinet Office, which is looking at upskilling public services to manage public contracts. However, that is not a reason for delay. These reforms open the door to new ideas, new methods and new technologies from the charitable, voluntary and private sectors, while preserving what is best in our probation service.

I will vote against the amendment proposed by the noble Lord, Lord Ramsbotham, and I will vote with the Government because I am willing to vote for the means as well as the ends. I urge all noble Lords who support those ends to join me in the Lobby today.

[Lord Beecham (Lab)]

My Lords,

“the Government claim that the aim of the Bill is to reduce reoffending ... Its real objective is to secure more centralised … control over the commissioning of offender management services. It centralises everything on the Home Office and removes responsibility from local people who govern the Probation Service”.—[Official Report, 17/4/07; col. 126.]

Those words were uttered from the Opposition Front Bench by no less a person than the noble Baroness, Lady Anelay, in a previous incarnation, when the House was debating the Offender Management Bill.

Nor was she the only opposition spokesman to criticise that measure on similar grounds. David Davis, who in the words of a famous movie character was “once a contender”, said that that Bill was,

“about more centralised Government control over offender management … a recipe for disaster”.—[Official Report, Commons, 28/2/07; col. 1027.]

A second reason for opposing that Bill was that it focused on “yet another organisational restructuring”. Those are interesting observations because, in a characteristically cavalier and disingenuous way, Ministers—until now not yet including the noble Lord, Lord Faulks—are now seeking to rely on provisions which they opposed and which they now deliberately misrepresent.

The Government chose to undertake this massive and highly controversial reorganisation of the award-winning probation service without seeking any degree of parliamentary approval. If it had not been, as my noble friend Lord Ponsonby remarked, for the efforts of the noble Lord, Lord Ramsbotham, and, if I may say so, my efforts, there would have been no debate about the issue before the noble Lord, Lord McNally, who is continuing to promote the cause from the Back Benches in his new capacity. The whole House will join me in wishing him well in his new role, and I have every confidence that he will carry out that role very satisfactorily.

The Government pretend that the Labour Government’s intention—and the noble Lord, Lord McNally, has hinted as much today—was quite consistent with what the present Government are doing. Yet the then Home Secretary, who is now my noble friend Lord Reid, said explicitly:

“If, at some future point, any Government were to decide that the time was right to open up that area of work”—

that is, offender management—

“they would have to make the case to Parliament, and Parliament would have the final say”.

He went on to describe it as a,

“double lock meaning that any movement after that will require a vote of both Houses”—[Official Report, Commons, 28/2/07; col. 1024.]

That is something that the present Government have been at pains to avoid.

--- Later in debate ---

[Lord Faulks]

Before the noble Lord sits down, could he help the House with how he sees the form of the amendment? Does he interpret it as requiring almost any change, of any sort, in the probation service to come before Parliament?

[Lord Beecham]

That is not my interpretation of it. That could have been levied against the amendment originally moved by my noble friend, but this amendment makes it clear that we are talking about a national change to the structure of the service, not every individual detail. It is consistent with the description I have already read to the House—quoting Hansard—from the Home Secretary at the time, about the requirement for parliamentary approval for changes of the very kind that the Government are promoting without having sought such approval.

[Lord Faulks]

My Lords, this has been an excellent and important debate. The noble Lord, Lord Ramsbotham, said that he wanted a debate on the probation service and he has got one. However, there have been a number of criticisms of the Government’s approach. Among other things, they are said to have delayed but then gone too fast. It is said they have not been sufficiently transparent and that the contract management is not sufficiently secure or not prospectively secure. I will deal with some of these criticisms without wearying the House too much. I have dealt with them in a number of meetings and documents sent to noble Lords but, for the convenience of those who may not have had those documents—or had a chance to read them—I will try and summarise some of our answers.

Since my noble friend Lord McNally committed to placing documents in the House Library, we have deposited 12 sets of letters, papers and publications about the reforms, including most recently all the draft contracts for the new CRCs. The noble Lord, Lord Ponsonby, raised the question of how CRCs will interact with statutory and non-statutory partnerships. We published a consultation paper about this and all his concerns are now reflected in the operating model.

Many Peers raised concerns about big private providers outmanoeuvring smaller charities. We have made changes to the number of contract areas to allow for smaller bidders; placed a cap of 25% on market share; engaged with potential tier 2 and tier 3 organisations so that 800 are now registered; and we have decided to accept the suggestion made by my noble friend Lord Marks to set up an independent institute.

It is said that the approach has lacked transparency and there was reference in debate to the risk register. Both this and the previous Government have agreed that there is a strong interest for the Government in having a safe place to formulate and develop policies for extensive reform. To remove that space and to challenge and manage risks internally would risk damaging confidence in the programme and could lead to a culture where risks are not even raised and properly managed through fear of the implications of doing so.

I should emphasise that the risk register is by no means a list of things that will happen, only of things that might conceivably happen if we take no action and we should therefore plan for and mitigate the possibility of happening. That is simply good management. The risks are given an inherent score: the score when the risk is first identified without any controls or mitigations in place, and a current score with controls in place. A target score is also agreed. Risks are reported weekly to the departmental board, and throughout the course of the programme Ministers have been kept closely informed of emerging risks and actions being taken to mitigate them. Programme officials regularly meet Ministers—on average twice weekly—on various aspects of the programme, as well as having close and regular informal contact with Ministers’ private offices.

It is said that there is a lack of clarity about the costing of these reforms. The Cabinet Office and Her Majesty’s Treasury are full members of the programme board before the reforms and attend regular monthly meetings. They have been closely involved with our decision regarding the launch and the invitation to negotiate. The Chief Secretary to the Treasury approved the payment mechanism, the launch of the invitation to negotiate and the outline business case. The programme has been given Treasury approval.

The question of scrutiny was raised. How, the question was effectively asked, will we make sure that the new system is open to public and parliamentary scrutiny? The reform system will be regulated and held to account through a combination of independent inspection, audit and commercial account management. Her Majesty’s Inspectorate of Probation will inspect services delivered by both the National Probation Service and contracted sectors. NOMS will have the right to audit CRC delivery, and the CRC contracts will also allow the National Audit Office access to CRCs’ financial systems where public reassurance is needed.

The audit schedule in the draft contracts, which the NAO approved and commented that it provides far-reaching audit powers, provides NOMS with wide powers of access to information, IT premises and personnel, including emergency audit. The NAO scrutinises public spending on behalf of Parliament and holds government departments to account for the way they use public money by reporting the results of its audits direct to Parliament.

There was a suggestion that staff were not being well managed and that some of them, at least, were reporting to individual noble Lords that they were unhappy with the process of transition which will inevitably happen. We have transition managers working with every probation trust, whose sole role is to be the link between the MoJ and trusts. There are weekly updates sent to probation chiefs; weekly teleconferences are held with senior leaders; testing and pilots of key elements of the programme have been and are taking place; and experts from probation have been seconded to the programme to add their valuable experience.

In addition, the new heads of CRCs have now been appointed and meet on the MoJ’s sounding board, which is helping to manage the transition process. The Secretary of State corresponds regularly with probation chiefs both through letters and via video message. Ministers and the programme management regularly visit trusts and maintain informal contact with probation chiefs throughout the programme.

--- Later in debate ---

[Lord Faulks]

My Lords, in moving Amendment 2, I shall speak also to Amendments 3 to 17 and 19 to 25. Although this is a relatively large group of amendments, most make minor or technical changes to the Bill and I will try to deal with them as concisely as I can.

I will start with the most noteworthy amendments in this group. Amendment 15 focuses on restorative justice. As I said earlier, I know that there is support across the House for the important role that restorative justice can play both in helping victims to move on from crime and in rehabilitating offenders. The amendment makes explicit that rehabilitative activities carried out under a community order, suspended sentence order or post-sentence supervision can include restorative justice. Noble Lords may already have spotted that this amendment is very similar to one originally tabled by the noble and learned Lord, Lord Woolf. Having debated the issue once again in the other place, the Government have been persuaded that it would be helpful to make explicit in the Bill our intention that rehabilitative activities can include restorative justice activities. This reflects the Government’s desire to see much greater use of restorative justice in appropriate cases. I pay tribute to the noble and learned Lord for first raising this issue and I hope that your Lordships’ House will welcome this statutory foundation for the use of restorative justice as part of the rehabilitation offered to offenders.

Amendments 2, 3, 4, 9 and 22 also pick up on an issue first raised in your Lordships’ House, this time by my noble friend Lady Linklater. Together the amendments deal with young offenders who are imprisoned for serious offences as a juvenile but are then released after they have turned 18. The Bill provides that this group of offenders, like others released from short sentences, will receive 12 months of supervision after release. The amendments make it clear that this supervision can be delivered either by an adult probation provider or by a youth offending team—YOT—as the Bill already provides for detention and training orders. There will be circumstances where a YOT may be better placed to deal with the needs of a young adult offender and it is absolutely right that the Bill should give flexibility to allow for this. In that way we can avoid the cliff edge of a sudden transition from youth to adult services. Again, I pay tribute to my noble friend for having championed this issue during the Bill’s original passage through the House.

Amendments 11, 12, 19 and 20 focus on drug testing requirements imposed as part of licence or the new post-release supervision period. Currently, an offender released on licence can be required to submit to compulsory testing in cases where the offender’s conviction offence is on a trigger list. The trigger offences are those crimes that are most likely to be linked to misuse of drugs. They include theft and fraud offences as well as drug offences.

Since the introduction of the Bill, we have looked in more detail at the evidence on drug use by prisoners in the Government’s Surveying Prisoner Crime Reduction survey. It suggests, as one might expect, that there is a strong correlation between prisoners who report use of class A or class B drugs before sentence and those who go on to reoffend. However, it also suggests that using the trigger offence as a filter omits around half of all prisoners who are class A drug users and the majority of those who are class B drug users. In short, where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender who is abusing drugs commits an offence that this time happens not to be on the trigger list, there is no testing power either after they are released from custody.

These amendments replace the trigger offence threshold with a new, two-limbed test: first, the offender has a propensity to misuse specified class A or B drugs; and, secondly, the misuse by the offender of any specified class A or B drug caused or contributed to any offence of which he has been convicted, or is likely to cause or contribute to the commission of further offences. That mirrors the threshold in place for the drug appointment requirement also contained within the current Bill. It continues to provide safeguards to ensure that testing requirements are not imposed in inappropriate cases.

Amendments 14, 16, 17, 21, 24 and 25 collectively allow for the transfer of the post-sentence supervision period created by the Bill to Scotland, Northern Ireland and other UK jurisdictions. Currently, terms of imprisonment and associated licence periods after release can be transferred to and from UK jurisdictions under provisions in the Crime (Sentences) Act 1997. That can happen on a restricted basis, where the sentencing provisions of the exporting jurisdiction apply in the receiving jurisdiction, or it can happen on an unrestricted basis, where the offender transfers on to an equivalent sentence in the receiving jurisdiction’s legislation. This gives flexibility for both the exporting and receiving jurisdiction to agree a transfer in the way that is most appropriate for an individual case.

These amendments make the necessary changes to the law to allow for post-sentence supervision, the supervision default order that is available as a sanction for breach of that supervision and the new drug appointment requirement to be transferred to other UK jurisdictions. The Government have worked very closely with the Scottish Government and the Northern Ireland Executive to agree the detail of these amendments. We have agreed with both Administrations that we will work with them in advance of commencement to review the existing operational guidance that exists on transfer of sentences. The existing position, where all transfers are agreed between the relevant jurisdictions, and where jurisdictions retain the right to refuse transfers, will continue.

Finally, Amendments 5 to 8, 10, 13 and 23 are technical changes to the clauses of the Bill that deal with consecutive sentences, drug appointments and fixed-term recall. They simply make clarifications to the way in which the clauses are drafted rather than any changes of substance. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.

[Lord Beecham]

My Lords, I am happy to confirm the Opposition’s support for these amendments and I am grateful to the Minister for his explanation of them.

Motion agreed.