Edward Garnier (Shadow Minister (Home Affairs), Home Affairs; Harborough, Conservative)

I beg to move, That the clause be read a Second time.

Proposed subsections (1) to (3) fall to be discussed together; I shall come in a moment to subsection (2). It seems to me to be logical that, just as the Secretary of State currently makes sure by regulation and various other arrangements that the probation service hits certain targets, meets certain standards and employs people of sufficient calibre and qualifications, he should also ensure that the new providers of probation services comply with those standards. There should not be one set of regulations or standards that applies to the probation service and its employees, and different sets of standards that apply to third sector or private providers.

It seems to me that such an approach would be fair and provide clarity, as well as the necessary public confidence that, if we are to have non-state providers of probation services, they comply with proper standards. This is a matter of some practical importance because the number of providers of probation services could well be enormous. A number of small charities already help out with the resettlement of offenders, and a number of small groups that go into prisons and help with learning and reading skills. There are also a number of individuals who make themselves available to assist in what I would loosely call probation work, albeit that they are not official probation service employees or officers.

Equally, if we are going to look at the supervisionof community punishment offenders by private companies, individuals or charitable groups, the public must be assured that those involved are acquainted with the law and will ensure that the individuals in their care and in their charge will behave properly, turn up on time, do the work that they are required to do to a sufficient standard and not disappear before the time set by the court for the scheme that they are on.

My concern in that respect was increased in earlier sittings when the Minister was not sure whether the standards that might be found in the contracts made between the regional offender manager, the probation trust or the Secretary of State and the third party or private provider would be the same as the standards set by the Bill when it was enacted. I gently chided him for suggesting that there might be any confusion between the statutory and contractual terms, which should be identical.

That point is allied to the issue raised in proposed subsection (3). What will happen if private providers—especially the large plcs, which have the money and want to make a profit—fall below the standards that the public expect of them? Surely penalty clauses should be built in. If a private provider falls down in its work, the Secretary of State, through the probation trust, will have to find someone else to do it, and there is no reason why the taxpayer should suffer a loss as a consequence of the incompetence or inadequacy ofa probation provider. That matter requires careful thought, and I appreciate that the new clause does not set out the model regulation or standards that need to be followed. None the less, the principle behind proposed subsections (1) and (3) is clear and self-explanatory.

Proposed subsection (2) relates to court reporting—not journalism, but the provision of reports for the court so that it can apply the proper sentence to the case and the defendant. At present, in a magistrates  court or a Crown court, when a defendant has been found guilty, the court will often order a pre-sentence report, which usually takes about three weeks to prepare. In central London, three weeks is about the minimum time that it takes for a probation officer to prepare a pre-sentence report. If the case is more complicated and requires the consideration of the defendant’s mental state, it can take longer to produce the report because the advice of medical and mental health practitioners has to be sought.

By and large, the probation service provides the magistrate or Crown court judge with a set of recommendations based on the assessment of the officer who has made the report of the facts of the case, and the matters relating to the defendant and his history, in its widest sense. There is no question of the probation officer who makes the report having any personal interest in the sentence. The pre-sentence report may state that there is no option other than custody for a particular offender and his offence, given his history and the damage he has caused the victim.

The probation officer may report that several community punishments are available and would be suitable, and he might recommend various activities that should be attached to the sentence. It is my experience that if more than two or three activities are added to the community punishment the sentenceloses its value. The defendant’s mind needs to be concentrated on doing one, two or three things well rather than on doing half a dozen things inadequately. Many community sentence defendants are not the brightest and they are not very good at timekeeping. If they are loaded up with all sorts of requirements, they will simply fall down and the sentence will have no effect. The expertise of a probation officer is needed to provide guidance on that, and he or she will also say what options suitable to a defendant are available in the area of a court or where he lives. The probation officer has no personal or commercial interest in the outcome.

We may be about to move into a set-up wherein private probation services supply court reports. If we are not careful the consequence, witting or unwitting, may well be that a private provider suggests to a sentencing court that a service that his company provides would be the best sentence or disposal of the case. Contractual terms or regulations should be crafted to make it impossible for a private provider to skew his advice so as to benefit his company commercially. That strikes me as sensible and uncontroversial. The Government should welcome it, and I am sure that they will.

Gerry Sutcliffe (Parliamentary Under-Secretary, Home Office; Bradford South, Labour)

I am grateful to the hon. and learned Gentleman for proposing the new clause, which provides an opportunity to debate the crucial matter of standards under the arrangements set out in the Bill.

Proposed subsections (1) and (2) would require the Secretary of State to set out in regulations the standards to be achieved by providers of probation services, particularly but not only in relation to the provision of reports to courts and the Parole Board. The new clause would also require regulations to provide for the imposition of financial penalties on providers who fail to meet the standards.

Of course I understand the concerns behind the new clause. We agree fully on the need for standards to apply to providers and for penalties to apply if standards are not met, but we do not believe that the legislative approach is not the right way to go about it. The overall priorities for the delivery of probation services will be set out each year in a published national commissioning framework. The national prioritiesin the framework will underpin the regional commissioning plans, which will also be public documents. The priorities will be informed by the consultation process that we discussed under clause 2.

In delivering the priorities, providers will be required to meet national standards, which are already in place and set out what we expect all providers to achieve. They do not have legislative status, and that is right. They are operationally focused and we need flexibility to amend them as necessary. A requirement to meet the standards will be set out in contracts and failure to meet them will incur penalties. The action to be taken in the event of such a failure will vary according to its seriousness and the reasons for it. Incentives and sanctions are being designed and agreed and they will, in time, include financial penalties. However, they are a matter for negotiations with providers.

The hon. and learned Gentleman’s concern about court reports has been expressed previously. We believe that there will be no conflict of interest for private companies writing pre-sentence reports, which will be done under the strict guidelines that are already in place. If concerns are raised or an anomaly is noted, they will be dealt with by the regional offender manager. The awarding of a sentence will remain entirely at the discretion of the sentencer.

The hon. and learned Gentleman went on to discuss how private providers of probation services mightbe held accountable for their performance. The requirement on private providers of correctional services, as commissioned by NOMS, to report their performance will be the same as the requirements on the public sector. Private sector providers will report to regional and national commissioners in the same way as public sector providers do and as existing private sector prisons already do. We believe that the safeguards are in place and that they should be contract related and in the guidelines. We certainly believe that serious failures ought to incur penalties, including financial ones. That is the right way to tackle the issues.

Legislation, even secondary legislation, is too inflexible; we cannot respond easily to changing needs, for example, as identified in the annual consultationor in negotiations between providers and the commissioner. Legislation is also centralising—a criticism that has been levelled at the Bill—and would stifle local flexibility and, potentially, innovation. On that basis, I hope that the hon. and learned Gentleman will agree to withdraw his new clause.

Edward Garnier (Shadow Minister (Home Affairs), Home Affairs; Harborough, Conservative)

I am not entirely satisfied with whatthe Minister said, because I am concerned about the conflict of interest. I am not sure that he met that point. As he so frequently and delightfully says, I will reflect on—indeed, take away and reflect on—what  the Minister has said. He will see the results of my reflections in due course. I beg to ask leave to withdraw the motion.