Probation Reform

Lord Keen of Elie Excerpts

Thursday 16th May 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House I will repeat a Statement made in the other place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“I should like to make a statement on the Government’s response to the ‘Strengthening Probation, Building Confidence’ consultation. Earlier today I laid this government response for consideration by both Houses. It sets out our proposals for the future of the probation service. Across England and Wales, the probation service has over a quarter of a million people under its supervision at any one time, and an effective service is key to protecting the public, punishing those who have broken the law and reducing reoffending. I pay tribute to the hard work and professionalism of staff in both our National Probation Service and the community rehabilitation companies that deliver this work.

The transforming rehabilitation reforms from 2014 aimed to encourage innovation and more modern ways of working. We introduced a payment by results system creating incentives for providers to achieve reductions in reoffending; and we extended statutory supervision and resettlement to all offenders released from prison, supporting an extra 40,000 offenders for the first time. Since those reforms, we have seen a reduction in reoffending and other positive developments. However, there are challenges in the system. The changes I am setting out today are designed to make the system work as effectively as possible and meet our aims of a probation system that commands the confidence of the courts and the public. Last summer, we took action to stabilise current delivery and, as a result, there are now around 500 additional staff in place to focus on resettlement services for offenders. At the same time, we also announced a consultation on our plans for the future; I am grateful to the individuals and organisations that engaged and provided valuable feedback.

We have reflected carefully, and I considered how to most effectively use the innovation and expertise of both private and public sectors to continue to drive down reoffending. I am today setting out plans that will see responsibility for the management of all offenders transferred to the National Probation Service. These arrangements are different from those set out for England in the consultation last summer. However, I believe that bringing responsibility for delivery of all offender management within the NPS will remove some of the complexities that have caused challenges in the current model of delivery, and make it more likely that an offender will have continuity of supervision throughout their sentence, while strengthening processes for managing risk. Alongside these changes we will develop a more clearly defined role for the private and voluntary sectors in delivering core interventions to offenders and securing innovation in the provision of these services.

Each NPS region will continue to have a private or voluntary sector partner—an innovation partner—directly responsible for providing unpaid work and accredited programmes. The NPS will be expressly required to buy all interventions from the market, spending up to an estimated £280 million a year, and contracts will be designed flexibly, so that innovative approaches that show results can be quickly identified and spread across the wider system. These interventions, such as unpaid work, accredited programmes and resettlement and rehabilitative services, are central to delivering the sentences of the courts. Subject to market engagement, I look ahead to launching procurement for these services later in the year with competitions for unpaid work and accredited programmes.

We want to make sure that services are responsive to local needs, and for resettlement and rehabilitative services we will create a national dynamic framework. This will be accessible to all providers, including specialist, smaller scale and voluntary sector providers with the expertise to support the most complex offenders back into society. This direct relationship will create a greater role for providers in delivering probation services and ensure that innovation can be identified and replicated across the system effectively. I am confident that this model, based on the arrangements we consulted on in Wales, offers the most sustainable approach for probation and is the best option to build on the positive changes made under transforming rehabilitation, to strengthen the system and sentencers’ confidence in it, and to continue to break the cycle of reoffending. We have no intention of reverting to the former probation trust model.

Since the consultation we have established a director-general post in HMPPS responsible for overseeing probation delivery, and we will appoint probation directors across each new probation region. Probation works best when local partners work together and these directors will be accountable for the quality, delivery and commissioning of services in each area, alongside building stronger relationships with local partners to ensure real joint working, including through co-commissioning opportunities where possible.

Alongside these organisational changes in NPS, we will overhaul NPS capability in commissioning and innovation and deploy cutting-edge technology. CRCs have taken some steps to demonstrate how digital tools can improve practice. We will transform the use of technology in probation, investing in a digital and data strategy that will replace all our core systems and better utilise data to inform professional judgment. We will complement this with a new, targeted innovation fund. We will ring-fence an initial £20 million a year in a regional outcome fund, to attract match funding from other government departments or commissioning bodies, including social finance providers and social impact bonds. The fund will be reserved for innovative, cross-cutting approaches and will enable us to test proof-of-concept services before scaling these up.

I also want to go further than what was set out in the consultation. When parliamentary time allows, we will look to bring forward legislation to implement a statutory professional regulatory framework, putting probation on a par with teaching or social work. This will set ethical and training standards for different roles, to recognise the skills and expertise of probation staff and support their ongoing professional development and expertise in providing a critical public service.

The changes I have set out mean that in future, it will be easier to respond to the changing profiles of offenders and to drive improvements across the probation system. We will continue to leverage the innovation of the private and voluntary sector, and to ensure that probation is working with partners across the criminal justice system to reduce reoffending. It is essential that we take the time to get these changes right. We have put in place arrangements to allow us to extend CRC contracts to ensure we have the necessary time to get the transition to the new system right. We intend to use these arrangements to end contracts in spring 2021. My officials will now engage with prospective providers and wider stakeholders and finalise our proposals ahead of seeking to launch procurement exercises later this year.

These changes will help to deliver a stronger, more stable probation system that will reduce reoffending, support victims of crime, keep the public safe and merit the confidence of the courts and the public. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Dholakia (LD)]

My Lords, I thank the Minister for repeating the Statement. All of us think that it has been a long time coming and it is right that we should broadly welcome the thrust of the Government’s intention to reorganise this service.

I take our share of the blame as part of the coalition Government, during which we supported some of the reforms of the National Probation Service in 2014. Some of the principles of these reforms were very sound when they were introduced. It was right that supervision was available for at least the first year when inmates leave prison. It was important to provide through-the-gate services, so that people can have a place to live as well as continuity of training and treatment between prison and the community. To do all this, it was vital that voluntary organisations working in the criminal justice field were fully involved.

Mr Grayling has bungled and underfunded contracts so badly that his reforms failed to achieve these objectives. No wonder it is estimated that these botched reforms have cost the taxpayer more than £500 million, according to the National Audit Office. He is the most unfortunate Minister whose record is dismal, and it is a surprise that he has lasted so long, even at the Department for Transport at this stage.

We need some guarantees to ensure that the probation service is not let down again. Who is examining the existing case load of probation officers? What further resources are available to make them more effective? Is there any way of tying probation resources to the rise in the number of prisoners in our establishments? Is there some way of ensuring that more incarceration of prisoners will effectively mean more work for the probation service? A good many well-trained but disillusioned probation officers have left the service in the last few years. What is being done to bring them back into probation work?

The Minister has just announced a new targeted innovation fund. What share will voluntary organisations have in such funds in order to make the probation service more effective? The new targeted innovation fund ought to make sure that such organisations are not locked out. Of course reforms are necessary, but we should never lose sight of the fact that when the state incarcerates prisoners, it takes full responsibility for each individual. We would do well, in very difficult times, to say to ourselves that if we lose that responsibility we will lose control of our criminal justice system.

[Lord Keen of Elie]

My Lords, I thank the noble Lords for their contributions. I do not accept the characterisation of these matters advanced by the noble Baroness, Lady Chakrabarti. Indeed, as I have often observed in the past, the gross overstatement of an argument simply diminishes it in the ears of hearers.

The position is that we have learned lessons over the past few years from the way in which probation was set up and carried through, as between the National Probation Service and the CRCs. Indeed, one of the difficulties that emerged arose not out of money being used to prop up CRCs, or money being taken from the taxpayer for the benefit of CRCs, but because the Government were actually too successful in negotiating the commercial terms of the CRC contracts, with the result that the CRCs made persistent losses on these contracts of such magnitude that they began to withdraw from the quality of service they should have provided in the first place. That created very real difficulties, and we accept that. We actually had to go to the CRCs and try to renegotiate in order to keep them on a reasonable path of provision.

One consequence of that has been that, for example, CRCs have paid out more than £9 million in respect of what are called service credits—which are, for them, service debits; they are credits to the taxpayer but debits to the shareholders of these companies—because of their failure to reach performance targets. So we responded to the very real difficulties that emerged in that context.

We are now developing a system whereby we will have the probation service on a regional basis. These regions will be coterminous with the PCCs, in the hope that, going forward, there will be greater linkage between the PCCs and the probation service. We will have a director-general of probation, which I think accords with a recommendation that has just been made in the interim report issued today by the noble Lord, Lord Ramsbotham, who was commissioned by the noble Baroness’s honourable friend, who I believe continues to be the shadow Secretary of State for Justice, Richard Burgon MP, who asked the noble Lord to look at this.

On the question of U-turning on nationalisation, I will quote from the interim report of the noble Lord, Lord Ramsbotham. He says:

“There is no doubt that the private sector has brought rigour to the oversight of probation. The best of them explained how they had introduced a forward-looking culture of delivering more with less, which must have relevance for the future, plus a better understanding of the relationship between cost and delivery”.


We are seeking to build on those benefits, appreciating that there were also deficits in the way in which CRCs delivered at the end of the day.

To take up the particular point raised by the noble Lord, Lord Dholakia, we are concerned to ensure that the voluntary sector has access to these contracts going forward. Indeed, one of the difficulties that emerged with CRCs was that, as they fell into greater financial difficulty, they drew back from their engagement with the voluntary sector and we therefore lost the immense benefit of that sector’s involvement in the probation service.

Taking this forward, we hope to re-establish clear, unambiguous faith in—for example—non-custodial sentences so that the courts can have more confidence in putting those forward and thereby, touching again on a point made by the noble Lord, relieve pressure on the prison system itself by virtue of an improved probation service.

[Lord Judd (Lab)]

My Lords, does the Minister not agree that in its earlier chapters the probation service attained an outstanding reputation and public confidence because of the quality, wisdom, experience and insight of its staff? That is crucial to the operation. Does he not also agree that, while there may be an argument about what happened in the last phase, there is very little doubt that, among many people, its reputation seemed to be in jeopardy as short cuts were taken and that there was a perception that the probation service had become an extension of the custodial system and had rather lost the purpose it was there to fulfil? Does he not therefore agree that, whatever happens—and we wish the new system well—commitment, quality of staff and the relationship and friendships that have to be built up between the officers and the people with whom they are dealing will be absolutely crucial?

[Lord Keen of Elie]

My Lords, I without hesitation and qualification commend the professionalism, integrity and ability of the staff within the probation service. That is why we are intent on implementing a statutory professional regulatory framework that will recognise the degree of professionalism that they have exhibited and continue to exhibit in the discharge of their demanding functions. The National Probation Service has extended its staff in recent years by about 500, and is bringing on further training of such staff. Going forward, we have appreciated the need to ensure consistency in the delivery of probation services and are not looking back to the prior form in which probation was delivered. When there were 35 probation trusts operating, with commendable staff, there were 35 ways of doing things. We have found that it is far better to try to identify a single, unified way of doing things for the entire probation service.

[Lord Ramsbotham (CB)]

My Lords, I am grateful to the Minister for quoting the interim report that I was required to write by the Shadow Minister for Justice. I note that he quoted my paragraph saying that not all had been lost by the community rehabilitation companies and citing the economic rigour that they had to bring to their role. Perhaps I might ask Minister two questions. First, he will have noted that the Justice Select Committee and the Public Accounts Committee—plus the National Audit Office and Her Majesty’s Chief Inspector of Probation—issued very critical reports of the whole transforming rehabilitation process. They said that the procedure had been rushed and unpiloted. Are the new proposals again to be rushed through unpiloted? Secondly, will the 11 areas correspond to the existing 11 government regions within which the police and crime commissioners operate, or will we have yet another division? By adopting Department for Work and Pensions boundaries, Transforming Rehabilitation completely crossed every single common-sense boundary that had been followed by the probation service for years.

[Lord Keen of Elie]

I am obliged to the noble Lord and welcome the fact that he has given consideration to these issues and is able to contribute to this matter with his interim report. No doubt he may take that further. On his second point, I had mentioned that the 11 proposed areas will be coterminous with PCC regions. There are more than 11 PCCs, of course, but we will ensure that the regions are coterminous so that we can develop the appropriate relationships between the PCCs and the NPS in that context. It is certainly not our intention for this to be rushed. I would mention two points: first, although the existing CRC contracts, as adjusted, run to the end of 2020, we have the ability to extend them to the spring of 2021 to have time to bring in these reforms; and, secondly, there will be a pilot in some sense because the model we are now adopting is the one we had already decided to adopt for Wales, which will be implemented from 2019. We will be able to see how this actually operates in practice before we proceed further with the rollout across the rest of England.

[Lord Beith (LD)]

My Lords, if the Government do not succeed in putting right the failings which many of us identified in previous reports, they will not win the confidence of sentencers and be able to proceed with getting rid of short custodial sentences, which is part of their policy. Surely, in order to get these things right, you do not want too complicated a structure. The intermediate body which is doing the commissioning from the voluntary and private sector seems a rather cumbersome structure, and we have to deal with telephone reporting being relied on, excessive workload for probation officers and features demonstrating that the system is not delivering what it ought to deliver.

[Lord Keen of Elie]

My Lords, I acknowledge that under the present scheme we have seen instances of excessive caseloads being placed upon probation officers, and we are concerned to address that issue. Equally, we are concerned to ensure that appropriate contact between probation and the persons to be released from prison can be achieved. I entirely concur with the noble Lord’s observation about the need to ensure that probation works in an effective manner, such that we can instil in both the courts and the public a confidence in non-custodial sentences. That is one of the objectives we have in mind with regard to these reforms.

[Lord Birt (CB)]

My Lords, I declare an interest as my wife was the founding director-general of the National Probation Service. The Minister is surely right to observe that it was a vast improvement on the hotchpotch of arrangements that had preceded it. I welcome the Government’s Statement; first, because it is entirely right that the state should take back full responsibility for managing all offenders; it is right too—and here I disagree with the Opposition Benches—that both the private and voluntary sectors should continue to provide specialist services to the NPS. Secondly, I welcome the Statement because of the Secretary of State’s willingness to reverse an error. That genuinely took courage and is to be applauded.

[Lord Keen of Elie]

I am obliged to the noble Lord for his observations and insight into the initial transformation that we brought about. I recognise, as he does, that there were deficiencies in that, which is why we proceeded with the consultation and have put forward these proposals for further reform.

[Baroness Donaghy (Lab)]

My Lords, there was mention in the Statement of bringing the probation service to the same level as that of social work. That filled me with some dread, as an Oral Question earlier today revealed across the House that the social work service is on its knees. I am looking for some reassurance that these new proposals will not make the same mistakes as the old ones, and I would be interested to know how much this appalling shambles has cost the taxpayer.

[Lord Keen of Elie]

I am obliged to the noble Baroness for her questions. As I indicated earlier, the real cost of the recent changes fell not on the taxpayer but on the shareholders of the various CRCs, which made immense losses arising out of the way in which the contracts were made and handled. The consequence was that the numbers that they were going to be dealing with were wholly wrong, and they found themselves with an unsustainable financial model. That is what led to some of the difficulties we faced. In the context of the comparison with teaching and social work, I was referring to the need, and indeed the desire, to implement a statutory professional regulatory framework. We believe that that should—and will—reflect the clear and high professional standards exhibited by the probation service and will therefore maintain standards going forward.

[Lord Paddick (LD)]

Would the Minister agree that we are now in a position where government Ministers no longer have confidence in the ability of short-term sentences to rehabilitate offenders, and the judiciary has no confidence in the ability of the Ministry of Justice to provide effective alternatives to short-term sentences? Is the Minister confident that the reforms he has outlined today will result in effective rehabilitation of offenders, and how long will it take before that is achieved?

[Lord Keen of Elie]

I do not agree with the propositions advanced by the noble Lord at all, and I have confidence in these proposed reforms.

[Lord Scriven (LD)]

My Lords, the Minister says there has been no cost to the taxpayer, but the taxpayer has had to pay £500 million extra, including the early closure of these contracts, which cost £170 million, which in turn included a cost of £115 million for waiving some fees. Is it not the case that there is an extra cost of £500 million to the taxpayer for bringing these contracts to an early close, and that they have not performed?

[Lord Keen of Elie]

No, with respect. The cost of these contracts was estimated at about £1 billion more than the actual cost incurred for the foreshortened contracts.

[Lord Bates (Con)]

I thank my noble friend for repeating the Statement, for the political courage which underscores its key message and for its particular focus on reducing reoffending. In the original consultation paper, in paragraph 58 on page 23, a worrying statistic was given: 70% of offenders who need ongoing treatment for drug or alcohol misuse had not been linked with that treatment within 21 days of their release from prison. Can my noble and learned friend assure me that, whatever new arrangements are brought forward, we will do everything possible to ensure that there is 100% availability from day one?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I welcome my noble friend Lord Bates back from his perambulations. We are of course concerned to ensure that through-the-gate services in particular can be developed to the point where such essentials as support, accommodation, the addressing of mental health issues and attention to misuse of drugs issues are brought to bear as swiftly as possible. One cannot give a time limit for that at this stage but clearly that underpins the proposals that we have put into this document.

[Lord Purvis of Tweed (LD)]

My Lords, will the Minister state on the record categorically that the National Audit Office was wrong to say that this has cost the taxpayer £171 million?

[Lord Keen of Elie]

I did not say that the National Audit Office was wrong but pointed out that the actual cost of the CRC contracts was in fact substantially below the figure that had been budgeted for originally, which arises out of their termination.