Offender Rehabilitation Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Tuesday 25th June 2013 Lords Chamber

This amendment modestly suggests that these young offenders sentenced to a DTO should have continuity of their oversight by the specialist youth offending services until they are 21, in the knowledge that this offers the best chance of reducing their reoffending in the future. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I support the noble Baroness, Lady Linklater, in the general thrust of her amendments. Her introduction made clear the vulnerability of this group of young people and its importance in terms of their being very likely to reoffend. She also made the point very forcibly about the excellent work done by the youth offending teams, and that is something which I see very often.

It is my understanding that currently the youth offending teams can agree to continue working with any young person who turns 18 while they are sentenced. They will make that decision based on how well they know the young person. In my experience, if they know them even relatively superficially, they will commit to carrying on working with them for the very reasons that the noble Baroness, Lady Linklater, has given, such as the benefits of continuity and continuity of supervision.

Perhaps inevitably, I ask myself whether members of the youth offending team should be obliged to work with these young people if they hardly know them. I came across a case quite recently where a young man pleaded guilty to robbery with a knife and was looking at a two-year sentence. He had been in London for only a relatively brief time and was pretty much unknown to the YOT which had the responsibility for him. Is it right that the members of the team should have no discretion in whether they have continuity of supervising this young man when they do not know him? That is a practical problem. I agree with the noble Baroness’s general points that if there can be continuity it is preferable. We need to give discretion to the professionals involved. My experience is that they certainly will want to continue supervision if at all possible.

The noble Baroness, Lady Linklater, described Amendment 15, which gives the YJB responsibility up until the age of 21, as “whistling in the wind”. Here again, I agree with the sentiments behind this, but can see a number of practical problems, not least that parents or responsible adults are very often encouraged to be part of the sentence process. That may well not be appropriate for somebody who is over 18 but under 21. One would have to look at the sentences if one were to make that amendment.

There is a very serious piece of work to be done looking at the outcomes of YOTs versus the outcomes of adult probation providers for the 18 to 21 year-old group, because they have a different approach. I would say that the YOTs have a more caring approach, if I can use that word, to the people they deal with. The noble Baroness has raised a very profound question regarding people in the 18 to 21 age group and I agree with the general thrust of what she is saying. I presume she is not moving to a vote, so I leave it at that with my general support.

[Lord Woolf]

My Lords, I would like to express my general support for what the noble Baroness, Lady Linklater, has proposed and said and also for that which has been said by the noble Lord, Lord Ponsonby. I venture to suggest that anyone who has experience of dealing with young offenders in the courts would come to exactly the same conclusions as they have expressed. They have very good reasons to advance their comments. The position of those aged 15-plus to 18 is a particularly difficult area which has been neglected largely by the approach of the criminal justice system until now. I particularly urge that what the noble Lord, Lord Ponsonby, has said about that group is taken into account.

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Moved by

[Lord Ponsonby of Shulbrede]

16: After Clause 7, insert the following new Clause—
“Duty for all providers of probation services to participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes
(1) Section 6 of the Crime and Disorder Act 1998 (formulation and implementation of strategies) is amended as follows.
(2) In subsection (1) after “responsible authorities” insert “including all future providers of probation services”.
(3) In subsection (1)(a)(i) after “disorder in the area” insert “to include participation in, and accountability to, community safety partnerships, and co-operation with crime and disorder reduction partnerships and local integrated offender management schemes”.”

[Lord Ponsonby of Shulbrede]

My Lords, Amendment 16 would put a duty on all providers of probation services to,

“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.

Following Second Reading, I entered into correspondence with the office of the noble Lord, Lord McNally, on this question and was referred to Section 6 of the Crime and Disorder Act 1998, which places duties on various responsible authorities to formulate crime reduction strategies, which in practice is done through community safety partnerships. In Committee, the noble Lord, Lord McNally, argued that there does not need to be further legislation on this matter and stated:

“Integration at local level works best when it is not mandated centrally”.—[Official Report, 5/6/2013; col. 1217.]

London Councils, which has briefed me on this amendment, argues that there is clear evidence from the Work Programme that commissioning services from the market, when applied on a large scale and managed on a national scale, can lead to low levels of engagement with local partners and therefore low levels of effectiveness. Therefore, the purpose of this amendment is to ensure that community safety partnerships have a role in performance managing the future delivery of contracts. There should be accountability measures within the contracting process and action should be taken where providers fail adequately to work in partnership at a local level. Community safety partnerships should have access to performance data from prime and subcontractor providers in order to have a local oversight of delivery. Although I was very grateful for the advice that I received from the noble Lord’s office, the purpose of these amendments is to put meat on the bone so that local authorities can properly play an influential and well informed role in managing local provision of services. I beg to move.

[Baroness Hamwee]

My Lords, I declare an interest as one of the three joint presidents of London Councils. I have seen the briefing from that body and support the points that have been made. I entirely agree with my noble friend that “bottom-up” is best, but sometimes structure is needed to allow these things to function well. I am not sure whether the example I am going to give is appropriate, but I will give it anyway.

In the London borough of Sutton, where this issue is “bottom-up” but structured, there is a very interesting partnership between the local authority and the police. The structure is such that there is joint management of certain services provided by those two parts of the public sector. Sutton tends not to go in for strident self-publicity so it does not seem to have made very much of this, but what it has done is extremely interesting. The joint management whereby the two arms are brought together works well as there is joint accountability. Whether or not that is a good example, I take the point about the need sometimes to have a framework. It is much better if that can happen locally but facilitation through legislation does not go amiss. If the Government still maintain that there is no need for this, are they considering issuing any guidance? I would rather not have central government guidance on what should happen locally, but sometimes a little prompting is helpful.

[Lord Ahmad of Wimbledon]

My Lords, Amendment 16 seeks to ensure that all providers of probation services are required to,

“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.

As was said in Committee, the Government are clear that nothing we do to tackle reoffending will work,

“unless it is rooted in local partnerships”.—[Official Report, 5/6/2013; col. 1217.]

I have seen how that works in practice. We absolutely expect future probation providers to engage with the relevant statutory partnerships. It will be in providers’ interests to work with other partners to achieve the best results. Our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

In tabling the amendment, the noble Lord seeks to ensure that all probation service providers are both members of, and accountable to, community safety partnerships and other crime reduction initiatives such as integrated offender management. Section 5 of the Crime and Disorder Act 1998 sets out who should be the responsible authorities for the reduction of crime, disorder and anti-social behaviour as well as for reducing reoffending. A provider of probation services will be a responsible authority for these purposes where the arrangements entered into with the Secretary of State provide for it to be a responsible authority.

As a responsible authority, current probation providers already have a number of obligations including being involved with the formulation of the local CSP strategy and plan for community safety, attending CSP meetings and sharing depersonalised information with the other four responsible authorities. Community safety partnerships are subject to overview and scrutiny by the local district council. As a responsible authority, providers of probation services already participate in this process. Nothing in this Bill will amend or change the Crime and Disorder Act. Providers will need to demonstrate how they will work in and strengthen local partnerships if they are to be successful in bidding to deliver probation services. Specifically, we are including a requirement for providers to evidence in their bids how they will relate to and incorporate integrated offender management arrangements into their proposal and contracts will reflect this. I hope my noble friend is reassured by that.

We are reviewing the current statutory partnership requirements to ensure they are appropriately assigned and discharged in the new system and we envisage that the contracts will reflect the statutory partnerships providers are required to participate in. Furthermore, the National Probation Service and contracted providers will be required to develop effective operational and strategic partnerships with each other and agree their respective roles and responsibilities in relation to statutory partnerships to minimise duplication and maximise effectiveness. Once the system is up and running we will monitor local partnership working as part of obtaining assurances of the delivery of services and we will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I understand the noble Lord’s concern. Indeed, he approaches these issues with great expertise and I appreciate the sentiment behind this amendment. However, I fear that some unintended consequences may arise from it. The amendment would in effect mean that every provider of probation services in an area, no matter how big or small, would have to participate in and be accountable to community safety partnerships and other crime and disorder reduction partnerships. Different areas of the country will have different partnerships, of different sizes and with different challenges. The right approach is to look at this carefully before deciding which provider, at which level, is a responsible authority. A tailored approach, rather than a blanket one, seems to me to be the right way forward.

I have outlined the existing legal responsibilities and requirements on providers of probation services and reiterated our commitment to local partnerships, together with the steps we are taking to ensure that our reforms are rooted in local partnerships, so that offenders can access the broad package of support they need to get their lives back on track. I have also outlined potential unintended consequences of the amendment. I hope, with the clarifications I have given and the assurances I have made, that the noble Lord will be minded to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, the noble Lord said that appropriate requirements are being reviewed and that the Government are reviewing which provider may be appropriate at which level. He went on to talk about monitoring local partnership working. It seems to me that all of this is under review and we should have a better idea at this stage of the Bill what the actual requirements are going to be. London Councils has raised these concerns with us. The London Probation Service accounts for 25% of the whole country. If it is unclear and worried, as it clearly is, surely it has a right to expect more than just more reviews about appropriate levels. Surely there should be more meat on the bone— to use the expression I used earlier—about what the responsibilities of the local authorities will be and what information they will receive. Having said that, I hear what the noble Lord has said and I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Moved by

[Lord Ponsonby of Shulbrede]

17: After Clause 7, insert the following new Clause—
“Provision of probation services
In any scheme (including pilots) for the supervision of offenders under sections 2 to 6, probation trusts and local authorities shall not be precluded from tendering for or commissioning contracts.”

[Lord Ponsonby of Shulbrede]

My Lords, Amendment 17 would make it possible for probation trusts to be able to tender for or commission future probation service contracts. The Government have said that it is open for probation trusts to convert to mutual status and to bid on that basis. I understand that assistance would be provided to trusts that wished to change their status into a mutual organisation in order to bid for the contracts. A mutual organisation would need its own financial backing and therefore any risk would be on the new financial backers of the mutual organisation and not on the Government. The Government argue that probation trusts as public bodies must not take financial risks. However, as we have heard from my noble friend Lord Beecham, there are many examples of government public bodies taking financial risks. In this context, it has been deemed that they must not take them.

If the new mutuals were to bid and win then of course the risk would be on their backers and not on the Government. This begs the question as to why the Government are unwilling to take on the financial risk. Do they believe that the contracts will be too risky for the public purse? It also raises the question of the need for the public probation providers to maintain competition with private providers. We have seen in recent years—I am thinking of the prison service—where the public sector has bid and won contracts back from private providers. My argument is that you need to maintain competence in the public sector in order to keep the private providers honest.

It is surely in the Government’s interest to maintain public sector competence and public sector capacity to ensure proper competition in the future. If there is inadequate interest, as there many well be, among probation trusts to convert to mutual status, what action will the Government take to ensure that this competition is maintained? It is very difficult—I would argue impossible—to oblige people to take on financial risk. The Government clearly want to offload their own financial risk. The argument and the purpose of this amendment is that is overwhelmingly in the Government’s interest to maintain public sector capacity to provide proper competition for the private sector. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Ponsonby, for setting out his reasoning behind this amendment. I also thank my noble friend Lord McNally for doing a sterling job as a Whip on this amendment. Never let it be said that the noble Lord, Lord McNally, is not quick on his feet. I think he has broken all records in rushing over to the Box.

Amendment 17 would ensure that probation trusts and local authorities are not precluded from tendering for or commissioning contracts. As was said in Committee, I agree with the general intent of ensuring that existing providers, where much of the knowledge and expertise lies, should be able to compete for contracts, a point well made by the noble Lord. However, we do not believe that this amendment is necessary.

We want to see the broadest and most diverse market for the delivery of offender services in the future so we want as many organisations and entities as possible to be able to bid to deliver services. Nothing in our proposals specifically excludes public bodies, although such entities would need to be capable of bearing the financial and operational risks associated with the delivery of these services under payment by results. Delivery or commissioning by probation trusts themselves would be unlikely to meet those criteria given that we have announced that we will be dissolving trusts in their current form and creating a new national probation service.

However, I agree that we should do all we can to ensure a level playing field, as the noble Lord stated, for all those interested in delivering services. That is why our competition process is designed to allow a range of different kinds of entities, including alternative delivery vehicles and mutuals designed by individuals within the existing probation trusts, to be able to bid to deliver services. We have also increased to 21 the number of areas we want to commission services across in order to ensure that contract package areas are of a variety of sizes and values. This is to enable more medium and small organisations to join bids in order to take part in the delivery of services. I know that the Secretary of State himself is very keen to see small and medium organisations as part of this process.

A number of staff within probation trusts have already expressed an interest in being part of a mutual to bid and deliver services. On 20 May, the Government announced a package of measures to support the voluntary sector and mutuals. In particular, the Cabinet Office’s mutuals support programme is providing intensive one-on-one support to prepare the first cohort of seven fledgling probation mutuals for competition, including coaching on legal, financial and commercial issues. The contracts for this support, totalling more than £500,000, have recently been awarded.

Local authorities may also play a part in the delivery of the new services—for example, as part of a provider’s supply chain—and will also be able to commission rehabilitation providers to deliver additional services in line with their own priorities. The amendment has changed somewhat from the one tabled in Committee to ensure that probation trusts and local authorities are not precluded from also commissioning contracts. The Government remain firmly of the view that commissioning contracts on the scale proposed and on a payment by results basis will be most effectively and efficiently carried out by a national function.

We are committed to commissioning and providing services that meet local needs, and we will ensure that the commissioning process is informed by engagement at police and crime commissioner and local authority levels. Probation service local delivery units will support the gathering of intelligence on needs and priorities at a local level, including from key partners—for example, local authority needs assessments—to feed into the commissioning process.

Contracts will be responsive to changing demands and priorities at local and national levels, new legislation and the wider commissioning context. Where commissioning priorities need to be adjusted, this will be done in consultation with the relevant stakeholders.

The noble Lord, Lord Ponsonby, raised the issue of apportionment of risk. He made a very valid point and it is one on which we have also been in discussion with officials. Perhaps I may write to the noble Lord on that specific matter. It is a concern and I, too, have sought clarification on it. He was perfectly right to raise it.

That aside, with the assurance that I will write to the noble Lord on that point, and with the other reassurances that I have given him about the proactive work within government to ensure that all organisations have an opportunity to bid to deliver services in a variety of ways, I hope that he will feel able to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, I thank the noble Lord for that response. He talked about a number of probation mutuals which are being established and which will be bidding for elements of work. My understanding is that these are smaller organisations than at the probation trust level and that they will be dealing with a particular expertise which is within the existing probation trusts. My point is that the organisations that form mutuals or that bid in some way will need to be large scale. If they are to be only smaller parts of probation trusts, then that expertise may be lost to the public sector, which was the burden of my introductory speech.

Having said that, I am obliged to the noble Lord for undertaking to write to me on the question of risk and I beg leave to withdraw my amendment.

Amendment 17 withdrawn.