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Offender Management Bill

– in the House of Lords at 3:07 pm on 5th June 2007.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction) 3:07 pm, 5th June 2007

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 4 [Restriction on certain arrangements under Section 3(2)]:

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

moved Amendment No. 51:

Clause 4, page 4, line 9, at end insert "; and

(c) relates to the supervision and rehabilitation of people charged with or convicted of offences"

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

It is clear that the Government have agreed that the writing of court reports, advice to the court on risk assessment and general advice to assist in sentencing will not be contracted out to other providers but restricted to the Probation Service or another public body. They have also confirmed that ongoing advice in the course of reviews and so on will be restricted in the same way.

That supervision of offenders, or core management, represents the ongoing work of probation, is inextricably tied into the process of reviews and advice to the courts and is therefore properly restricted in the same way. However, it would be helpful if the Minister could confirm this, following the brief debate on the subject on the previous day in Committee. In particular, it would be helpful to have clarity over the limited timescale attached to the exemption of core management, which seems to be confined to three years. It is unclear why this work has not equally been permanently restricted, or what the logic or argument is for the choice of that particular period. Is it possibly designed to test how well the Probation Service performs, or against some other criteria? We would be grateful for clarification.

The arguments for the exemption of supervision in the community under the Criminal Justice Act 2003 are strong, as we have already argued. More than 130,000 people are on orders and 47,000 are supervised under the MAPPA arrangements, being the highest risk and most potentially difficult to manage—30,000 are on orders requiring them to attend an intensive group. The concerns are that these groups must be small to be effective, which does not lie easily with concerns about profitability in private sector organisations. The MAPPA arrangements, involving long established co-operation with the police, will not be sustainable under multiple supervision or the introduction of private sector companies, as argued elsewhere. The risk of information being compromised or data not being shared is very real, as, therefore, is that of standards being reduced.

We would hope to see a significant expansion in unpaid work, which involved 55,430 people and 4.6 million hours of work last year, if community sentences are to be developed more widely, as we agree should be the way forward. But this must involve significantly greater investment, in time and manpower as well as money, if it is to become a meaningful reality. Will that be the case? The Government must put their money where their policy is in this crucial area. However, there is particular concern over the 35 per cent of individual placements, such as work in charity shops, churches or supporting adults with learning difficulties, which are particularly heavy on staffing costs. They are particularly appropriate for women, as I found in the early days of community service, when we had a couple of girls in the visitors' centre I helped to found at Pentonville. It was a rewarding and personal experience for all concerned. Rehabilitation was part of the planning and experience. For a private sector organisation, however, it would be difficult to justify on grounds of profitability.

At present, 45 per cent of unpaid work is supplied by the voluntary sector, 38 per cent by local authorities and 12 per cent by faith groups. If unpaid work is contracted out under NOMS to the private sector, where there may be scope, this particular and important aspect must not be jeopardised or the individual placements put at risk. Unpaid work should, in general, be an integral part of the local community, where there is also accountability and where local private companies can be involved. I hope that the Minister can reassure us that individual placements, which are important to many, will not be contracted out in the same way. I beg to move.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

I speak to Amendments Nos. 51A and 51B which are in my name and that of my noble friend Lady Turner. Amendment No. 51A aims to keep a key public protection function in the public sector and, in so doing, prevent the conflicts of interest which partly led the Government to list court work as a restricted provision.

The Probation Service currently provides impartial, accurate, reliable, skilled and professional advice to assist the parole board in making its decisions on the release of prisoners. Information is provided in writing and verbally and a risk assessment is offered where appropriate. If this function were to be commissioned, there could be an immediate conflict of interest. For example, if the writer were an employee of a company with commercial interests in the outcome, such as tagging or private jails, that would affect the ability of the parole board to carry out its functions. Indeed, in evidence to the Home Affairs Committee in 2005, a representative of the judiciary warned that it could not be involved in a body such as a probation board if competition were introduced into services for courts and therefore, presumably, in prison board decisions.

Amendment No. 51B would keep approved premises—probation hostels—outside contestability by adding them to the list of those included under restricted probation provision in the Bill. It is important to keep probation hostels in the public sector. These premises deal with some of the most dangerous offenders in the community and as such are not suitable for private provision. The Probation Service currently operates 104 hostels with approximately 2,500 places, the majority now for people on parole. Over half of these are convicted sex offenders, and in many other cases the original offence involved violence. It is essential that hostels are resourced by experienced and trained staff in order to minimise risk to the public. If hostels were commissioned, there would be a risk that the information and data could be compromised, staffing levels could be reduced and the risk to the public could be increased. The safest way to house the most dangerous offenders on their release is therefore in approved premises, commissioned and managed from within the public sector. It seems to be acknowledged within NOMS that approved premises occupy an anomalous position in that they straddle aspects of public protection and offender protection alongside offender management. Even though many aspects of their regime are designed to change and challenge behaviour and to offer support and so on, the primary purpose of approved premises is to manage the risk posed by serious sexual and violent offenders on their release.

On 4 May 2007, NOMS wrote to board chairs confirming that offender management would remain in the public sector until 2010. However, the letter then stated that,

"lead providers would subcontract much of their intervention work to other providers".

That statement appeared to be predicated on the concept of what was "most effective" and who was "best placed to deliver".

The feeling among those working in the area is that such provision is expected to be outside the public sector. If so, that does not appear to be consistent with the principle of best value, which will ensure that if the public sector is the best provider, then it should be given the work. Indeed, such a promise was made in the Third Reading debate in another place by the Home Secretary, John Reid, in an exchange with my honourable friend Mr Clive Betts, MP for Sheffield Attercliffe, reported at col. 1019 of Hansard for 28 February. In the same speech, the Home Secretary indicated that the 2007-08 target for subcontracting will be deleted so that trusts or boards will retain local commissioning powers while ensuring best value provision of services. It would therefore appear that we need a statutory guarantee about the direction of commissioning in relation to approved premises at whatever level they are commissioned.

This amendment is not an attempt to prevent the third sector taking an increased role in the accommodation of offenders. It is about ensuring proper provision for different groups and, in some cases, at different stages of a sentence.

Photo of Lord Warner Lord Warner Labour 3:15 pm, 5th June 2007

Although I understand the thinking of the supporters of the amendment, the amendment is effectively an attempt—when you get down to it, whatever the transitional arrangements—to institutionalise in legislation a further set of restrictions on the ability to have non-public service providers provide these services. That is how the amendment is actually framed. The Government are rightly arguing that we need a variety of public service providers. No one disputes that we are moving towards having an enabling state where the Government guarantee coverage of services and the funding of those services but also accept that there should be a mixed range of providers. These amendments would, whatever the transitional arrangements, prevent such activity taking place in another range of services in the probation service.

I remind the Committee that for 60 years we have had in personal services through primary care a load of small business men and women—we call them general practitioners—who have provided public services under contract from the private sector. In return they have also produced profit and loss accounts each year. These people are outside the public service in the public services they provide, but civilisation has not ended. They have been the envy of the world in the primary care provided. I see no reason why we should assume that some of these advances cannot be made also in a wider range of probation services activities.

Photo of Lord Judd Lord Judd Labour

Perhaps I may be permitted to respond to those remarks by my noble friend. As someone who has put his name to this amendment, I would encourage him not to tilt at windmills. Nothing could be further from my mind in putting my name to the amendment than the motives that he suspects might be lurking somewhere behind it. I put my name to it simply because it re-emphasises yet again that if we are co-operating with others outside the formal public service, it is tremendously important to remember what the priorities are, and to emphasise that in the confusion of tasks which may be expected of them, the key task is the rehabilitation of offenders.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

I believe that the noble Baroness, Lady Linklater, was right to press the Government for clarity on Clause 4. On that basis alone I support the way in which she has addressed her amendments. Like the noble Lord, Lord Warner, I approach the clause from the point of view of wishing to see contestability work well and not to inhibit it unless it is absolutely right to do so. There are reasons that can be forcefully adduced for saying that there are some areas where contestability should not be rolled out just yet, if at all. That has been the mainstay of much of our debate during our first days in Committee, in which so many noble Lords have taken part.

The amendment of the noble Baroness, Lady Linklater, raises vital issues that have to be resolved if we are to make good progress on the Bill when we reach Report. Clause 4 was a concession from the Government during Report stage in another place, way back on 28 February. It restricts the Secretary of State's power to award contracts for probation services. In effect, it ring-fences the public service provision of probation services to certain offender management services. That ring-fencing can be removed only by statutory instrument under Clause 12. This amendment appears to extend the ring-fencing to a wider range of probation provision; hence the cautionary note from the noble Lord, Lord Warner.

When these matters were debated in another place, my honourable friend Mr Edward Garnier made it clear that we do not intend to intervene in the Government's negotiations with others regarding the extension of the protection of services from being opened up to contestability, because we support contestability. However, as a result of the response of the noble Lord, Lord Bassam, and the noble Baroness, Lady Scotland, to amendments during our third day in Committee, I feel that it is necessary to take part in this debate to try to get further clarification. I hope that I will not test the patience of the Committee too much if I simply set out where I believe that clarification needs to be achieved, because it will have a direct impact on how I approach my Amendment No. 99 when we reach Clause 12.

The clarification that I am looking for is as follows. First, I want clarification about the Government's plans to roll out contestability. Secondly, I want a definition of what is covered by Clause 4. Thirdly, I want to hear the Government's justification for not extending the protection in Clause 4 to other sectors of offender management. Fourthly, I want to hear about the timetabling of their plans to remove Clause 4 by statutory instrument.

I am grateful to both Mr Harry Fletcher from Napo and Mr Stephen Ormerod from Unison for their helpful briefing on these matters. I may not agree with every crossed "t" and dotted "i" in their briefing, but I recognise that, as always, they are so well informed and have the best concerns of good delivery of services at heart.

I appreciate why all the amendments have been tabled. They are put forward on a matter of deeply held principle and are to be admired on that basis. They perform a valuable function, in that they require the Minister today to put clearly on record what services the Government expect to remain in the public sector as a result of the protection given by Clause 4. That is not just a matter of semantics; it is about knowing which services will be put out to contestability and whether the guarantee given by Dr Reid in another place of three years for the survival of Clause 4 has now become a guarantee for a longer period.

On Third Reading, Dr Reid described what I and my right honourable and honourable friends thought was a two-stage roll-out. The two-stage roll-out appeared to be as follows: first, as soon as the Bill is on the statute book, all offender management work, except that covered by Clause 4, would or could be opened to contestability. The Bill clearly gives the Government the power to do that. Whatever other assurances they give, the power is in the Bill. The core services in Clause 4, the second part of the roll-out, would be protected for only three years and Clause 4 would then be removed by the affirmative procedure. He said that the,

"core offender management tasks of the probation service—for example, offender report writing, offender supervision and breach proceedings—will remain in the public sector for the next three years. That is for at least the lifetime of this Parliament. I alluded to that the last time I was here and I make it plain again today. For the next three years, the core tasks of offender management will remain in the public sector".

Later, he said:

"In short, there is a three-year guarantee for the retention of offender management in the public sector and a double lock meaning that any movement after that will require a vote of both Houses of Parliament".—[Hansard, Commons 28/2/07; cols 1023-5.]

It was a three-year guarantee.

In Committee in this House, however, the noble Lord, Lord Bassam, stated:

"We will not contract for offender management outside the public sector before 2010. The Clause 4 concession relates only to court work".—[Hansard, 23/5/07; col. 677.]

That implied that the Clause 4 concession does not cover all offender management. That is what needs to be clarified.

The noble Baroness, Lady Scotland, acknowledged that at least one area of offender management was not covered by Clause 4 protection—that of advising the parole board. Amendment No. 51A, in the name of the noble Baronesses, Lady Gibson of Market Rasen and Lady Turner of Camden, would rectify that. Does the Minister intend to accept the amendment today or to consider bringing back an amendment on Report? On the past statements made by the Government, that would seem the logical thing for them to do. Today, the noble Baroness, Lady Gibson, has made a powerful case. As I said, I shall not get involved in negotiations between the Government and others to delay contestability, but I see the logic and force behind her argument, given the concessions already made by the Government in another place.

What other areas of offender management are not protected by Clause 4? Whatever is covered by the Clause 4 concession, the period of its life seemed to be lengthened by the noble Baroness, Lady Scotland, when she responded on a different amendment during our debates in Committee. She stated that,

"non-public sector providers will not advise courts in the foreseeable future".—[Hansard, 23/5/07; col. 695.]

I wonder whether the Minister is being very generous and saying that the foreseeable future is only until Mr Brown calls the next election. If so, she is of course in accord with her honourable friends in another place. To me, however, the foreseeable future sometimes seems to be a little further in the distance than that. Perhaps she has no ambition about winning the next election, but we need to know what life this protection is likely to have, and we need clarity on the matter today.

Photo of Lord Northbourne Lord Northbourne Crossbench 3:30 pm, 5th June 2007

Will the noble Baroness, Lady Linklater, clarify one point? In the context of the amendment, how do we measure rehabilitation? How do we know when rehabilitation has been achieved? Is it achieved over time? What is it? We have talked a lot about it, and I believe that it is absolutely fundamental to the work of the National Offender Management Service. Surely we must all be clear what we mean by it so that we can have a level playing field for contestability.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

Perhaps I should start by assuring the noble Baroness, Lady Anelay, that I am totally at one with my right honourable friend the Home Secretary, and that I have every intention of doing everything I can to ensure that this Government win the next election, as I am sure the noble Baroness will do from her side of the House. I hope that she will be as successful as she was the last time, and that we will repeat the same position.

The amendments do give us an opportunity to talk about a difficult and important issue, and I very much thank the noble Baroness, Lady Linklater, for tabling them. I am sure she will correct me if I am wrong, but I believe that she very much posits them to enable us to clarify and understand where we actually are rather than for their technical niceties. I hope that by responding to them I will be able to provide the clarity that the Committee needs.

The amendments of the noble Baroness, Lady Linklater, and of my noble friends Lady Gibson and Lady Turner seek to achieve similar ends, albeit by slightly different means. The restriction, which we will debate shortly in more detail, means that the Secretary of State will not be able to enter into a contract with any non-public sector provider for the court work that the Probation Service currently does. The provision could be repealed only after a vote by both Houses of Parliament. However, we added Clause 4 in the other place to meet some very specific concerns about the particularly sensitive area of advice to the courts—advice on which the rest of a sentence might depend. We acknowledge that there are anxieties about possible conflicts of interest. The amendments, of course, go much further.

I should also clarify our reasons for giving that assurance. The assurance reflects our desire to move cautiously, as well as our view that the non-public sector providers do not yet have the experience or expertise necessary for this important core area of work. We want to make it clear that we do not think that this will change in the next three years. My noble friend Lady Gibson made a point about the importance of best value. Best value means looking for the entity or person who is best able to deliver that service. If the public sector is best able to deliver that service, then of course it should continue so to do. Who is best able to perform the service is a judgment that can be made .

I turn first to the amendment in the names of the noble Baroness, Lady Linklater, and the noble Lords, Lord Dholakia and Lord Wallace. Were this amendment to be passed, the only aspect of probation services that could be commissioned directly from a non-public sector provider would be the work which probation does in conditional cautions, giving assistance to persons remanded on bail and giving information to the victims of those charged with or convicted of offences. The noble Baroness clearly could not intend that as there simply would not be a practical basis on which we could move forward.

These areas of work constitute a small proportion of the overall probation workload. If the amendment were passed, virtually all services could be commissioned only from the public sector even if a provider from the charitable, voluntary or private sector were able to demonstrate that it could do a better job. The noble Baroness highlighted some of the areas in which the charitable and not-for-profit voluntary sector is doing a fabulous job, and I know that all of us would wish it to continue doing so. The amendment would make it much more difficult, if not impossible in practice, for services to be commissioned across geographical and organisational boundaries and make it more difficult to create consistency for offenders between prison and probation and to deliver economies of scale in, for example, areas of specialist provision. Because of the way in which the amendment is phrased, my noble friend Lord Warner rightly alerted us to the danger. It would cut us off from an opportunity to use those who could assist in a very beneficial way. The cumulative effect would make it harder for organisations such as Nacro, Turning Point, and Rainer, which have so much to offer, to make their full contribution and to supplement public service probation provision in the way that they, and we, would like.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

Is the Minister not forgetting the whole area of interventions? My amendment specifically relates not only to the court services, but also to core management which is inextricably related to the advice in relation to what the court does or may decide. I did not address interventions at all.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

The noble Baroness referred, I think, to the community pay-back work and the way in which that can be done. That is intervention.

I hope that the Committee can see that it was our intention to solidify the position that we now have and give a greater degree of certainty, which is why we introduced Clause 4. Perhaps it would be right also to remind the Committee that an amendment which would have had a similar effect to this one was debated extensively in the other place. It was rejected for the reasons that I have just given. It was seen quite clearly as something which would unnecessarily restrict others from coming and helping us in this regard.

I turn now to the amendments tabled by my noble friends Lady Gibson and Lady Turner. Amendment No. 51A seeks to add the work which probation does in relation to the Parole Board in the early release and recall of prisoners. First, let me repeat what I said when we debated conflicts of interest. We have no immediate plans to open up this area of work to competition. We have given a guarantee to Parliament that we will not contract with a non-public sector provider for core offender management work for three years, which includes the provision of assistance to the Parole Board. However, as we discussed during our first day in Committee, probation involvement in the parole process is rigorously governed by the Parole Board Rules 2004. The proposed revision of the Parole Board Rules will see these further strengthened as they take the form of a statutory instrument. If in the future we decide the time is right to open up this area of work, the rules will apply to all providers involved in delivering this work regardless of whether they are from the public, the private or the voluntary sector. As these robust safeguards are already in place, we simply do not believe that the amendment is necessary, although we understand why it has been tabled and why it is necessary for me to repeat these assurances.

Amendment No. 51B seeks to add the management of approved premises to the list of restricted services. Currently there are 104 approved premises in England and Wales, including 14 which are run by voluntary management committees and one by a private sector organisation, so we already have a mixture of management in that regard. As noble Lords know, they are used primarily to supervise high risk of harm offenders on release from custody. Clause 10(5) specifically clarifies that the Secretary of State may use his powers under Clauses 2 to 6 to commission the construction and/or operation of new approved premises. The approach suggested by my noble friends would, with respect, take us backwards from where we are now. The amendment would exclude the private sector while ensuring that the number of voluntary sector providers remains permanently as at commencement. I am not sure that I completely understand the position and I cannot believe that that is what my noble friends want. Their dislike of us using the private sector inappropriately is absolutely clear, but it is not justified on our experience to date. Where we have engaged with the not-for-profit sector and the private sector, we have a number of examples of doing very well indeed—not for ourselves, but for the people for whom we care.

Public protection will be our overriding priority in commissioning all services. That will be especially the case with regard to approved premises, given the types of offenders they contain. Approved premises will continue to be used primarily to supervise offenders released from custody on licence who are assessed as presenting a high or very high risk of harm to the public. I am conscious that the noble Baroness, Lady Howarth, is not in her place

Noble Lords:

She is.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

The noble Baroness was not there when I last looked, and I am greatly relieved because on the last occasion in Committee she told us powerfully about the role of the Lucy Faithfull Foundation in relation to the management of sex offenders. We have relied on the voluntary sector, which has developed a high degree of specialised expertise in certain areas, to help us in times of difficulty. Moreover, the Probation Service has been extremely grateful for such help and support in the past and I am sure that the service will continue to wish to secure it in the future. So those managing and working in approved premises will monitor offenders' compliance with their licence conditions, including curfew, enforcing hostel rules and acting upon any evidence of concern as regards offenders' behaviour. They will need to work closely with offender managers and with partners such as the police within the multi-agency public protection arrangements. Because of this, we will ensure that contracts to run approved premises are awarded to those who can demonstrate that they and their staff are competent in managing high risk of harm offenders. That will be the case whether the provider is from the public, private or voluntary sector.

As I have said, we intend to proceed cautiously. The public sector will continue to take the lead role, and provided its performance meets the requirements, the probation trust will be the lead provider in the probation area. The lead provider will concentrate on the delivery of offender management while sub-contracting much of its intervention work to other providers. But to achieve this, we need a system in place that is sensitive enough to respond to local needs, one that allows every provider to play to their strengths and robust enough to ensure that this vision becomes a reality. The Bill and the commissioning system to be introduced will allow for this. With that in mind, I hope that my noble friends will feel more confident about withdrawing the amendment, conscious as I hope they will be that that which they wish to see is actually going to be done.

The noble Baroness, Lady Anelay, raised the issue of a timetable. There is no timetable for lifting the Clause 4 restriction. The three years refers to the non-legislative commitment on wider offender management work. I hope that will enable the noble Baroness to feel more comfortable about where we are and that I have been able to give the clarity the Committee seeks.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 3:45 pm, 5th June 2007

Before, as I anticipate, the noble Baroness, Lady Linklater, moves to withdraw the amendment, perhaps I may say that the Minister has assisted me today and achieved some further clarity. However, there is still illogicality in her position in regard to Amendment No. 51A. She appears to be arguing that the amendment relates to the same kind of work as is covered by Clause 4 but that it is not going to be given the same legislative protection under this Bill as the other work in Clause 4 because it may be covered by other protections elsewhere. I have some unease about the logicality of the Government's position, but that is for others to argue.

I am interested in the manner in which the Minister argued in defence of Clause 4. As I understood it, she said that those matters in Clause 4 would be exposed to contestability as and when private companies and voluntary organisations demonstrated their ability to take on that work. We all agree that that is the only reason why there should be an opening of the gates, but the gates, surely, should be opened wide only if those bodies can demonstrate that there is no conflict of interest.

The Minister went on to say that it is not the Government's intention that there should be a conflict of interest. Is she saying that in the future when contracts are awarded once Clause 4 protection has gone—or before that for advising the Parole Board because that is of more immediate interest—no contract will be issued where the person bidding for the contract to provide advice has within their business portfolio any other business that might benefit from the provision of probation services that might be taken up as a result of that advice being given to the Parole Board?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

All those issues will have to be looked at. Let us not consider this from the point of view of the voluntary sector or the business sector; let us look at the innate conflict that those two sectors may argue the public sector currently has. The public sector can currently say, "We are going to advise the court that it should only ever place people in the public sector and not in the voluntary sector or the private sector. We believe that we should maintain a monopoly in relation to those issues". We are taking all of that argument away and saying that there are certain objective outcomes which we should ask of all those who seek to do this work.

There are certain conflicts of interest that we all need to bear in mind in determining how these will be phrased. We can do that through the contract by setting clear targets in terms of outcomes. What outcomes do we need to see? What training should the people undertaking this work undergo? What probity should these individuals demonstrate? If we take it away from private, public and not-for-profit voluntary and ask what are the criteria—criterion if it is singular—that each of these competing entities needs to satisfy in order to get the commissioned contract, that would give an objectivity which would enable us to get the best from all sectors.

Perhaps I may take this opportunity to remind the Committee of what our view is as a result of the empirical data that we have. We believe that in order to meet the needs of the individual offender and the individual victim, it is likely that you are going to have to have a partnership response, which may in part be public, in part be private and in part be voluntary, because that will respond best to the identified needs of the individuals with whom we are faced. This is not about the Probation Service, it is not about the private sector and it is not about the voluntary sector. It is about the needs of the individual people we are supposed to be serving, and any structure which meets those needs is the structure that we want.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

I have listened carefully to the Minister. I share with the noble Baroness, Lady Anelay, a sense of lack of clarity. Perhaps when we have read and dissected Hansard it will become clearer. I reiterate that our position is that the restricted advice and assistance that the Probation Service will be giving the courts is also inextricably linked to the ongoing review of people who are then going to have their situations referred back to the courts for further assistance and further guidance. It is hard to distinguish that area of work from what the Government have already agreed should be the province of the public sector Probation Service.

I remind the Committee of the wise words of the noble Lord, Lord Judd. We have in mind a clear fundamental objective: how best to rehabilitate offenders. I contend that there is a simple thread of logic running through what we are trying to say. We on these Benches have no problem with a variety of providers in the appropriate area of need. I drew attention to that, as the noble Baroness recognised, and there are many other examples. For the time being I am not going to press my amendment, but will very likely come back to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 51A and 51B not moved.]

Clause 4 agreed to.

[Amendment No. 52 had been withdrawn from the Marshalled List.]

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

moved Amendment No. 53:

After Clause 4, insert the following new Clause—

"Factors for determining arrangements under section 3(2)

(1) For the purposes of deciding with which other person to make contractual or other arrangements under section 3(2), the Secretary of State

(a) shall by order specify factors, relating to the quality and value for money offered by the other person, by reference to which such decisions shall be made;(b) shall not set minimum targets for the amount of probation provision to be made by persons within the private or voluntary sectors.

(2) The Secretary of State shall, after making each arrangement under section 3(2), publish a report explaining the basis on which the decision to select the relevant person was made by reference to the factors specified in the order made under section 5(1)(a)."

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

The proposed new clause is simple and clear. Again, it seeks to clarify. It places a duty on the Secretary of State to ensure that factors of quality and value for money are taken into account when contracts are agreed. It also places a duty on the Secretary of State to ensure that a report is published that gives the reasoning behind any decision that is taken. That makes sure that the process is transparent and can therefore be questioned, which in turn brings discipline to the whole process. It is also in line with commitments made in the other place by the Home Secretary, Dr Reid, at Third Reading on 28 February, to the effect that probation work would no longer be put out to contract on an arbitrary percentage basis and that such a report would be presented. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I support my noble friend in moving the amendment. It is as well to remind ourselves that Clause 3(2) says that the Secretary of State may make contractual or other arrangements with any other person for the making of probationary provision. It seems to be in the general public interest to ensure that in making such arrangements there should be value for money and a certain number of constraints placed on those arrangements, including the necessity to report back and explain the basis on which decisions are made, in order to give effect to Clause 3(2). That is sensible, and I hope my noble friends on the Front Bench will be prepared to accept it.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I have added my name to the amendment. Subsection (1)(b) states that minimum targets shall not be set for the amount of probation provision by the private and voluntary sectors. I am concerned that that could conflict with the two terms the noble Baroness referred to—"quality" and "value for money". The Minister has been saying that it is important that we have the best. It follows that it does not matter where the best comes from, and we should not bind ourselves with targets that might interfere with that very important decision.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I support the amendment. I listened carefully to what the Minister said previously about involvement of the voluntary sector. I recall Dame Suzi Leather visiting the Cross-Bench group some time ago and speaking about the Government contracting out work to the voluntary sector. She reported that three-quarters of the contracts were inadequately funded, which is a great cause for concern. I recognise the important step forward the Government are trying to take, but we all know how very difficult it is to get commissioning right. It is an extremely complex business, and we have not been good at it in the past. It is therefore important to insist in the Bill that contracts have as their starting point value for money and good quality instead of, as is often inadvertently the case, being the cheapest deal one can find. That we must avoid at all costs.

Photo of Baroness Stern Baroness Stern Crossbench

I support the amendment, to which my name is attached. I appreciated hearing what the noble Lord, Lord Warner, said in response to a previous amendment about contestability bringing in lots of people such as family doctors. I speak as someone involved in an inquiry under the Joint Committee on Human Rights into the protection of the human rights of elderly people in health and social care. There may be another way of looking at this. We have discovered a widespread situation in homes for elderly people run by the private sector. Staff who are paid the minimum wage go off at 5 o'clock to do another job, coming back on duty eight hours later, because the salary that people who run such homes can offer is very low. I warmly support the amendment; if we do not have quality and value for money written into the Bill, it will be very difficult to avoid lowering standards when cheapness becomes the prevailing value.

Photo of Lord Warner Lord Warner Labour

I rise, not quite so quickly, to oppose the amendment. It is an unnecessarily bureaucratic way of dealing with what is essentially a contracting issue. I hear what the noble Baroness, Lady Stern, says about shortcomings in particular providers outside the public sector in other areas of public policy. We could all trade examples of failures of public, voluntary and private providers of public services. That is what regulators and inspectors are there to help deal with. That is not the issue here; it is whether we should, as the amendment proposes, tie up a Secretary of State over the detail of a contracting process for alternative ways of providing services to the traditional probation service. Telling a Government how to draw up a contract in primary legislation, as the amendment would, seems absurd; then requiring them to publish a report on a set of individual decisions on these contracts is going over the top.

I should like to detain the Committee a moment by talking about some personal experiences I have had as a Minister letting contracts in the public sector. I authorised contracts for elective surgery, diagnostic equipment and clinical assessments worth hundreds of millions of pounds. There was no requirement in primary legislation to go through the process set out in the amendment because there are umpteen safeguards in common law and European contract law for the process by which contracts are let. You have to go through a very diligent process of specifying what you require and making that information available to all potential providers. As a public body, you are under an obligation to seek value for money in your contracts. There is often a testing process supervised by the Office of Government Commerce and the Treasury. We do not need to lay this down in primary legislation. We are still accountable to Parliament as Ministers when we make those decisions. We can still be hauled before a Select Committee such as the PAC and we still have to answer to Parliament, day in and day out, in questions and parliamentary debates, for our behaviour and conduct in letting those contracts. This is not how to handle this issue. Micromanaging ministerial actions in the area of contracts through primary legislation, as this amendment does, is not how to govern an advanced country.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour 4:00 pm, 5th June 2007

Does my noble friend therefore disagree with the Home Secretary in the other place, who seemed to indicate that he had no problem with the report being placed before Parliament?

Photo of Lord Warner Lord Warner Labour

I do not think that I am disagreeing with the Home Secretary, but I do not think that when he made his remarks he envisaged that we would go through such a process even before letting the contract as is provided for in this amendment. Of course, we may have to answer for our conduct to Parliament at a later stage, but this amendment goes further than just a report; it specifies a lot of the detail about how you would let the contract in the first place.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I remind the noble Lord, Lord Warner, that the Explanatory Notes set out the framework for what is proposed here. In paragraph 4, they say:

"This Bill will transfer to the Secretary of State the statutory duty to make arrangements to provide probation services, so enabling him to commission from providers".

Paragraph 9 says:

"They give to the Secretary of State the responsibility to ensure the provision of probation services and enable him to contract with others".

In other words, it invites the inclusion in the Bill of the detail on how the Secretary of State will do that.

Photo of Lord Warner Lord Warner Labour

I know that we are in Committee and that I am no longer a Minister—although it is beginning to feel as if I were again—but this process of contracting takes place outside primary legislation. Nothing in the Explanatory Notes—and I have read them carefully—suggests to me that we should lay down in primary legislation such fetters on future Secretaries of State in how they engage in contracting.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

I support the amendment because it goes to the heart of the anxiety of people in this field about contestability and the process of contracting out probation services. There are concerns about costs and cutbacks throughout most of our public services. It is a constant concern, as the noble Lord, Lord Warner, has already illustrated, and this area is no exception.

The reordering of the Probation Service, which is at the heart of this Bill, reflects in most people's minds the fear that the Government are looking at reoffending rates, concluding that the figure is very high and costing us all dear, and deciding that savings must be made through alternative providers. That is very simplistic but it is at the heart of the worries in people's minds. That argument ignores the fact that the Probation Service has done extremely well against the Government's targets. Only this week it published its latest figures for how it has performed against those targets; they have never been so good. It also ignores the fact that reoffending is an issue that is not solved simply or quickly, particularly when the causes of offending are looked at in any depth.

All this is axiomatic to most people who deal with the problem. It is not a situation which is popular politically, not least because the causes are seldom dealt with by simple punishment and there is no quick fix for changing behaviour. Therefore, whoever manages offenders has to acknowledge this. Dealing with the very complex problems of this group of challenging, dysfunctional human beings requires first and foremost a wide range of skills, knowledge and experience. Generally this does not come cheap. Cutting corners in the interests of economy is likely to be very counter-productive. This amendment would not, as the noble Lord, Lord Warner, suggests, result in micromanagement but would require the Secretary of State to, as it were, unpick the criteria by which arrangements will be made with any provider for making probation provision—it makes clear what these criteria should be. He would be required in an order to set out clearly the factors which determine how the decision on commissioning is made. The amendment is to do with clarity and better understanding. These factors will have to include quality of service as well as value for money and will clarify the priorities which underpin any decision.

It goes without saying that we need a clear commitment in this form, not merely through verbal assurances, that the quality of probation services will not suffer and must come first. This amendment also requires that minimum targets are not set—as has already been argued—for the amount of probation services to be provided by the voluntary or private sectors; particularly given the fact, as we argued earlier in the amendment on charities, that some of the very best practice may be found in small, local, voluntary providers. These may not operate economies of scale but on the basis of quality at a human level. The best way to achieve the highest standards required is to ensure the transparency that this amendment seeks. Thus, it has our full support.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I apologise for not being present at the beginning of this debate and for missing this riveting discussion on two Committee days. I feel rather as though I am diving into a very deep end. I have questions about the amendment. I understand the heart of it and the need to ensure quality of services. However, I do not understand why that quality can be provided by only one sector.

I was the deputy chair of the National Care Standards Commission. When we were looking at elderly persons' homes it was clear to me that the difficulties faced by local authorities in service delivery were just as great as those faced by the private and voluntary sectors. Those difficulties were the reason that local authorities closed homes long before the private sector did so. As the noble Lord, Lord Warner, pointed out, we can all trade those sorts of stories. However, that is not the issue. The issue is about quality and levels of resource and the authority to ensure those.

Like the noble Lord, Lord Warner, I am afraid that I have real anxieties about managing through statute. I have criticised this Government on a number of occasions for doing just that—trying to micromanage through statute. I think that is what this measure would do. I may have missed something and I should be grateful if someone can help me, but I do not understand what the measure means. Does it mean that we assess quality only when this provision is undertaken by the voluntary or private sectors? I would take offence at that. We have to provide a level playing field for all contracts, whether undertaken by the public, private or not-for-profit sector.

I do not understand the situation regarding minimum targets but I understand the heart of the matter. I declare an interest as the deputy chair of the Lucy Faithfull Foundation. The Home Office owes us a great deal of money, so I know all about the difficulties of commissioning and it not happening on time. Therefore, I have a vested interest, if you like. It is inappropriate not to recognise that when you set a contract, you set it with a budget. I am sure that Members on the Front Bench opposite support that strongly. You have to assess what you want to achieve for the budget that can be given.

We in the Lucy Faithfull Foundation were recently told that, due to the delays caused by the Bill, our contract for probation services could not be renegotiated so we would have to renegotiate what we could give for the contract. That seems a sound and sane way forward in agreeing contracts, but it is all management; it is all to do with day-to-day business on the ground. I would find it difficult to support the amendment for the very reasons that the noble Lord, Lord Warner, eruditely outlined: this is to do with how you make the service run, not the strategic context in which the legislation is set.

Photo of Lord Northbourne Lord Northbourne Crossbench

I support what my noble friend has said. We are talking about a change of ethos to that of a business contract. We have to be satisfied that, in negotiating contracts, the weaker participant is not exploited, as has happened. I know of charities that have undoubtedly been exploited by local authorities and others, sometimes by a local authority going back on its word, and sometimes by its not paying up on time. Very often it is by the local authority treating the charity or other organisation as a waste-paper basket; when it has too many clients it passes them on, but when it does not have enough it keeps them all for itself. Those sorts of thing have to be covered, and I should be much happier if the noble Baroness could assure me that there would be some legal help for small charities and organisations negotiating contracts.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

The more I listen to both sides of the argument on the amendment, the more persuaded I am that reassurance is needed. The Secretary of State has the power to do all that is set out. We know from previous systems that effective voluntary organisations have run short of funds on many occasions, so the past has not been perfect. However, as this is all being left up in the air, the amendment seems crucial, not least the words,

"relating to the quality and value".

That phrase is there to be part of the measurement. For the rest of us out there in the public who are concerned to see that this is effective, and that we are well protected and well served so far as rehabilitation is concerned, arrangements to publish reasons why an organisation was chosen are crucial. They would certainly protect the weaker partner; if something was delivered to the Probation Service, the weaker partner would need to know exactly why.

I am sorry that this situation has happened and that everyone has become so confused about the exact meanings and how you measure these things. I am sad to say that, whether due to delays in bringing this forward or uncertainty whether a Bill is needed at all—so far as I can work out, practically everything that has been discussed could have been done already under existing arrangements—I am in favour of the amendment.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

There is one area of reassurance that the Minister might be able to offer. Again and again I hear from people working in the field providing services that if only more operational people—those who have to put things into practice—were involved in commissioning services, it would improve the process significantly. It would be helpful if she could say something about that or perhaps write later about how it would be ensured.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour 4:15 pm, 5th June 2007

I say to the noble Baroness, Lady Howarth—I have tremendous respect for her knowledge and expertise in this area—that the amendment is not designed to differentiate between the private, public and third sectors on value and quality; it is an attempt—perhaps a clumsy one—to clarify the present situation. This debate has shown that more clarity is needed, and perhaps my noble friend will be able to provide some reassurance.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I have listened to the debate with great interest and care. The noble Baroness, Lady Gibson, touched on what is at the heart of noble Lords' concerns—to seek further clarification on the way in which the process will work, how arrangements will kick in, how the system will operate on the ground and to reassure those operating in the field how commissioning and the development of a mixed economy of provision in this sector will operate. I well understand that concern.

Like the noble Lord, Lord Warner, the debate took me back to a time when in local government I had to deal with CCT, the development of the contracting out of services from the local authority sector and embracing the private sector. Rightly, one of our concerns at that time was that there might be a compromise on quality, given the demand for further economies. We were right to make that argument at the outset. Over time there has been a development of thinking that has established the importance of specifying quality in contracts at the outset; that principle is at the heart of our consideration. That is where we have come to in this debate—the need to understand what quality means when we specify contracts.

I understand the concerns that have been expressed in this debate. The noble Baroness, Lady Linklater, talked of cost-driven cuts and of her concern that they would impact on the way in which the service is developed. It is not our objective simply to drive down costs. That is not what this is about. It is not our objective to seek to cut the service—far from it. If noble Lords look at the history of this Government, they will see that we have invested in the Probation Service. Before we came into office, there had been a period of disinvestment, particularly in training. I argue that we have a good story to tell on training provision, and in the past few years we have invested some £40 million extra in training and reinstated its importance and value—and the Probation Service has access to it. We have used that to ratchet up the quality of services. This is not a cost-driven and cuts-driven exercise.

However, there was much in our debate with which I agreed. I understood and agree with the spirit behind the amendment of the noble Baronesses, Lady Gibson and Lady Stern, and the noble Lord, Lord Ramsbotham. As I made clear during our debate on Amendment No. 49, we are resolutely opposed to the setting of targets for the amount of provision to be made by any particular type of provider. I underline that we are not simply embarking on an exercise of setting targets for the amount of provision to be put out to competition and for contestability. That would run counter to what we are trying to achieve in this Bill, which is aimed squarely at enabling services to be commissioned from the best available provider.

In our previous discussion, I quoted what my right honourable friend the Home Secretary said on the subject in the other place. His words put our intentions beyond doubt. Indeed, I find it difficult to see how we could justify any other approach, and that is one reason why I am surprised that some Members of the Committee, including the noble Baroness on the opposite Bench, continue to argue for primacy for the public sector.

I remind noble Lords of the principles that we want to underpin our approach to commissioning and contracting. As I said, the overriding principle is that we want to commission from the best available provider, but how will we decide who that is? The exact factors will depend on the individual circumstances but I reassure the Committee that "best available" does not necessarily mean "cheapest". Of course, value for money will be a key factor, and we would all argue that that is right as it is the public purse that we are talking about. However, the overall aim is not to save money but to raise standards and further the aims set out in Clause 2(4), which we debated in considerable depth last time we met.

Therefore, we are looking at solutions which improve the quality of services provided to offenders, victims and communities and support end-to-end offender management. We will discuss standards in more detail under a later set of amendments but I can say now that we will expect all providers, from whichever sector, to deliver to the same high standards. That does not mean that we will expect them all to deliver in exactly the same way, because we want to foster innovation and creativity—I think there has been an acceptance from all sides of the Committee today that we need to develop innovation and creativity in this sector—but we will also ensure that there is a basic set of minimum standards with which everyone will comply.

The noble Baronesses and the noble Lord propose placing criteria on the face of a statutory instrument. I am with my noble friend Lord Warner and the noble Baroness, Lady Howarth, here. I do not think that that is necessary or appropriate; it is legislative over-prescription. The overriding aims are already set out clearly in the legislation at Clause 2(4), and we propose to enshrine standards in legislation. We have also made it clear, on the record here in the Chamber, what our overall approach is on targets and best available providers.

The amendment also proposes that the Secretary of State should publish a report explaining the basis on which individual contracting decisions are made. I understand why noble Lords might think that a statement of reason should be made but we are already striving for transparency in this regard. In fact, we treat very few elements of a contract as commercially confidential. The main exceptions are specific elements, such as cost models and intellectual property rights, and our approach in this respect is fully in line with normal commercial practice. However, we place unpriced copies of existing PFI contracts in the Libraries of both Houses of Parliament, and we have provided, on request, information on areas such as financial sanctions and contract costs, with NOMS currently publishing performance data on private and public sector prison providers, as well as probation areas. The National Probation Service performance report is published on a quarterly basis on the NPS website.

It is worth adding that, thanks to the earlier amendments that the Committee agreed, there is now also a requirement for the Secretary of State to publish plans setting out the way in which he proposes to commission services for the following year. Indeed, this requirement will also extend to trusts and other providers in respect of the services which they, too, wish to commission.

We are already putting out a lot of information on the basis on which contracts will operate and be led, so transparency is already there with a lot of the detail that is contained in those publications. We do not think it right to over-prescribe in statute how the contracting process will work but we think that, in essence, we have the right balance. We understand that nervousness may exist in some noble Lords' minds, but we want to provide the opportunity for creative and innovative aspects in the way in which these contracts develop, because we think that there is added value in that.

I reject the suggestion that this is a cost-cutting exercise; it is not. It is about enhancing the quality of standards. Over time, costs may rise as a product of this, but I do not want to predict that one way or the other. It is important that we secure value for money, that we become more effective in provision and that the service is fully attuned, however contracts work, to the need to reduce offending and reoffending rates. That is the direction of travel of our policy and that is our objective.

Some specific questions were asked. The noble Lord, Lord Northbourne, was rightly concerned about capacity building. We understand that. In the Cabinet Office additional research is taking place and consideration has been given to capacity building in the independent sector. Yes, we shall try to provide some support in that general direction and some of that support is already there.

The noble Earl, Lord Listowel, was concerned to draw, in essence, probably on best example and best practice in commissioning. Yes, we want to ensure that those good practices are widely understood as their value is evident. From my experience in local government, one of the riches that we unlocked through the contracting process and the development of mixed economy of provision was simply that there was a greater sharing of best practice which added value to the way in which services were delivered through different providers.

I have dealt with targets. In earlier Committee sittings, we have made it clear that we have no intention of setting targets for the amount of work to be contracted to other providers. We do not see the need for that. Perhaps I can offer a measure of reassurance to my noble friend Lady Gibson. On commissioning and contestability, who ends up with the work is, in a sense, not irrelevant, but misses the point. If the exercise can be directed to raising standards and improving the quality of provision, surely that is the most important overriding objective. Certainly, in the custodial sector, second time around Her Majesty's Prison Service won three out of the five market-tested exercises for providing prison facilities and custodial services. Bids for Buckley Hall, Blakenhurst and Manchester were won in-house. We could reasonably argue that that had the beneficial side effect of raising standards in those institutions. That points towards one of the profound benefits of the contracting process.

I hope I have answered the questions and provided a measure of reassurance. The debate has been useful because it has focused on the key issue, which is using contestability to drive up quality in certain areas of provision. It has also focused on the importance of reducing reoffending and using the drive and initiative in the private sector and the voluntary sector to achieve that overriding objective, I hope that, having heard that, my noble friend will feel able to withdraw her amendment.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

I thank all noble Lords who have taken part in this debate, which has been very useful. I thank my noble friend for his very comprehensive reply. I shall reflect on what he has said. For the time being, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 5 [Power to establish probation trusts]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

moved Amendment No. 55:

Clause 5, page 4, line 14, at end insert—

"( ) An order made under subsection (1) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament."

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

I shall speak also to Amendments Nos. 56, 57 and 59. My amendments deal with two objections to the drafting of Clause 5. The government concession in Amendment No. 129 in the same group addresses one of our concerns but leaves the other untouched. Clause 5 gives the Secretary of State the power to establish probation trusts. It is a wide power. He can establish a trust, alter its name or purpose and he can dissolve it. The area to be covered by the trust is not specified and will not even be specified in any order that establishes a trust. The Secretary of State can decide that himself, as and when he draws up contracts for trusts.

Clause 5(3)(c) provides that the purposes of a probation trust may also include any other purposes specified in regulations made by the Secretary of State. That is another extraordinarily wide power. What parliamentary scrutiny is to be given to these orders and regulations? None. As drafted, the orders under Clause 5 are not statutory instruments and not subject to any parliamentary procedure.

The Government have of course agreed to put that right for one part of Clause 5, but not the other. When the Delegated Powers and Regulatory Reform Committee of this House reported on the Bill, it considered that it would be desirable for the Bill explicitly to restrict the purposes which may be added under regulations to probation purposes as defined in Clause 1, especially in view of the negative procedure applying to the statutory instruments there. While the committee accepted that there must be an implied limitation of some sort to the apparently open-ended extent of Clause 5(3)(c), the Bill does not confine the purposes which may be specified to those which contribute to the achievement of any purpose mentioned in Clause 2(1). The inter-relationship of Clauses 1 and 5 causes so much confusion and difficulty in trying to read the two together.

The committee recommended that if an express limitation of this sort were included in the Bill, the negative procedure would be sufficient. If the Government refused to do that, however, the committee considered that the affirmative procedure should apply. The route that the Government have chosen to adopt in their Amendment No. 129 avoids any express limitation but allows the affirmative procedure for orders under Clause 5(3)(c). In other words, we will now have the affirmative procedure for orders dealing with the purposes of a probation trust, but still, apparently, no parliamentary scrutiny for their establishment or dissolution.

When the Delegated Powers and Regulatory Reform Committee reported on the Bill in its seventh report, it stated in paragraph 23 that the Government's memorandum suggests that it is appropriate to have no parliamentary scrutiny,

"as in due course trusts may need to be established or dissolved for commercial reasons".

The committee said that it was not persuaded by this justification, and I agree. It said:

"Parliament might well wish to retain some control over the establishment of a statutory corporate body which is subject to the control of the Secretary of State (who appoints all the appointed members—see paragraph 3 of Schedule 1—and has power of direction over it—see paragraph 14 of Schedule 1) and which will deliver essential services".

The committee recognised that the provision in the Bill might not be inappropriate but, because it had no information on the likely size and number of trusts, it could not make a recommendation. It therefore drew the matter to the attention of this House so that the Minister might be required to justify the lack of parliamentary procedure in Committee. That is why I have tabled my amendment. I ask the Minister to give the Committee the Government's justification today, if they have one. I beg to move.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs 4:30 pm, 5th June 2007

I support the noble Baroness's amendment. We are moving towards a series of amendments discussing what a trust is, what its duties are and how its work fits in with those with which it co-operates. I say to the noble Lord, Lord Warner, in particular, that those of us who accept the principle of the mixed economy are concerned that it is well designed and functions for the purposes for which it was intended. In an earlier debate, I mentioned the example of the privatisation of the railways, in which an inappropriate model of piecemeal contracting and subcontracting was developed for railways maintenance, with extremely damaging consequences.

We all understand that offender management requires active co-operation between a number of agencies—some public, some private—which require long-term trust and co-operation. As set out, this clause does not tell us enough about the difference between a board and a trust, and exactly what a trust will do. I note from the noble Baroness's letter of last week that probation boards are key members of local criminal justice boards, but we want to know exactly how trusts will operate in those circumstances. We do not know whether trusts will have the same geographical boundaries or whether the disappearance of chief probation officers locally will affect them. There is a host of unanswered questions here. We consider that the speed of the transition under the legislation offers a high level of risk. I declare my suspicion of the new Labour approach to many of these things. It is, "If in doubt, change the structure and certainly change the title of anything because that does something". The National Probation Service was created six years ago, a range of changes has been set in train since 2004 and here are further changes, not yet fully explained or understood—perhaps the Government have not made up their mind about them yet—but we are asked to take them on trust; trust with a small "t", in this instance.

We are entitled to know a little more. What is a trust? How does it differ from a board? Later amendments will discuss the composition of trusts in more detail. What sort of regulatory framework will these trusts have? How far will they be the lead providers of services? Will regional offender managers be able to go around them and commission lots of other services, which would make co-operation much more difficult? What will the transitional arrangements be? We do not have answers to these questions at present, and these amendments, and some of the following amendments, will probe them. Before we get to Report, we deserve more detail from the Government about what is intended.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I found it interesting that in an earlier answer the Minister said that there is a requirement to give a degree of certainty. One of my concerns about this whole business of trusts is that this clause is all about the contractual details of the trust. I do not argue with that because we are all agreed that there has to be contracting and commissioning. We are not arguing with that at all. However, my concern is that, when reading the Bill, when trusts are mentioned for the first time, one would think that they are for contracting purposes only. In fact, they are not; they are part of the future governance of the Probation Service. Rather than giving certainty, they give uncertainty because the way that probation areas that are due to have a trust will be governed will be different from the way in which probation areas with existing boards are governed.

I find this process confusing. I can see the logic of the Secretary of State being at the pinnacle of the National Probation Service, which this Government set up, in exactly the same way as he is at the pinnacle of the Prison Service. He works downwards through a system to the probation officer on the ground or the prison officer on the landing. He does that through his chief probation officers or through a Prison Service chain that I hope we will have time to discuss. However, the chief probation officer is responsible and accountable for the delivery of probation services. It does not matter whether they are commissioned from the public, private or voluntary sector provided they are the best available. However, the chief probation officer needs to have a commissioning authority—whether called board, trust or whatever—that is also in the chain, but if a trust is to be by itself, and according to the legislation it is, he reports to the trust. We have to go back to the certainty required by the people on the ground who are doing the job.

This Bill is all about managing offenders; it is not about managing contracts. That is why I so agree with how the noble Baroness, Lady Anelay, has put the amendment in pointing out the need to have more clarity on the whole process, which includes the developing trusts.

Photo of Lord Warner Lord Warner Labour

I understand the points made by the noble Lord, Lord Wallace, about seeking more clarity on how the trust will operate. I have no quarrel with that. However, the nub of the amendments—leaving aside the government amendment—is that they require the Secretary of State to secure the agreement of both Houses of Parliament when they set up, alter the name of or dissolve a probation trust, or amend an order in any way.

I suggest that that provision is unnecessarily restrictive and out of kilter with the way that Parliament has authorised the Executive to operate in a number of other areas of public policy. The one I know very well, and the one to which the Delegated Powers and Regulatory Reform Committee draws attention, is the area of NHS and primary care trusts. I do not want to push too far the comparison between probation trusts and primary care trusts, but primary care trusts are bodies that handle a substantial amount of public resource. They receive directly from the Secretary of State the money for commissioning healthcare services in their area. They currently spend about £60 billion of public money each year.

There is no requirement on the Secretary of State for Health to lay an order when he or she dissolves a primary care trust or to consult both Houses of Parliament on that order. He simply makes the orders to abolish, to change the name of and to establish primary care trusts. It is not as though Parliament did not consider informing the legislation whether that should happen. It did not happen by accident. Parliament decided that when you change strategic health authorities, the supervisory body for primary care trusts, an order should be laid before both Houses of Parliament and that there should be a process by which Parliament approved that set of changes. Therefore, Parliament has consciously allowed the Secretary of State the authority to make an order without scrutiny by Parliament but admittedly after a process of public consultation, which is good practice anyway, to change those primary care trusts.

I have to confess to the Committee that as a Minister I made orders last year abolishing about 200 primary care trusts and establishing about 50 new ones. That was done after a process of public consultation and in accordance with the wishes of Parliament. I suggest to the Committee that there is a reasonable comparison between primary care trusts and probation trusts. Admittedly, we have had that kind of delegated autonomy for health for a longer period possibly than we have had with probation. Nevertheless, primary care trusts spend an enormously greater amount of money than probation trusts. They commission a diverse range of services which affect the individual citizen. So there are some reasonable comparisons there.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

I rise to support both what my noble friend has said and the amendment of the noble Baroness, Lady Anelay. I am interested in what the noble Lord, Lord Warner, said because obviously the other trusts we know about are primary care trusts. I wonder whether the degree of vagueness and lack of any kind of detail of what these trusts are—a matter we are discussing today—applies also to primary care trusts. Indeed, I would say that the vagueness and lack of clarity on the nature of these trusts, their likely size, number, geographical distribution and their composition or way of working, which are all entirely undefined, coupled with the lack of parliamentary procedure to establish them, appears extraordinary.

Given that the probation boards are shortly to disappear, it is no wonder that the future is being viewed with such consternation and anxiety by the profession. From the government side, it may seem perfectly normal, but if one is to put oneself into the mindset of people in the Probation Service, it is extremely worrying. As the noble Baroness, Lady Anelay, said, even the timing of the conversion from individual boards to trusts is not clear, nor are the criteria that will have to be met for the transition to be made. Given the extremely important role of the trusts, it is surely critical that such basic issues are clarified.

Can the Minister give the Committee some idea of what criteria NOMS will be using in the integrated performance framework—which we understand it is developing to inform all decisions about public probation services—for those transitions? Will it consult the boards about that and make its thinking public before any vital decisions are made?

Boards will need to know what are the criteria against which decisions will be made about conversion—how trust status is both gained and lost. They will need to know that to plan and to be able to decide whether to apply to be a trust in the first place. As a starting point, there should be much more detail in the Bill to give the process a proper judicial framework. The Probation Boards Association is also concerned that there should be an independent regulator while the process is under way to assess whether the criteria for trust status are met. It must be made quite clear that such decisions are independent of NOMS.

Although it has already been agreed that courts services and core offender management will be reserved to the Probation Service, the timing of the proposed three-year period for offender management is still unclear. Presumably, it will be from the moment that a board achieves trust status, but that needs clarification. Can the Minister give us that clarity?

If we can assume that the lead provider model is to be adopted by the new trusts—something on which the boards are basing a lot of their thinking—for commissioning, perhaps the new trusts will have greater freedom than have boards hitherto in both practice and multi-agency working. The proposed, partially deregulated environment could be productive. They need clear assurances from the Secretary of State that there will be consultation on the new freedoms to innovate and become efficient.

It is clearly vital that the essentially local nature of the commissioning by trusts is maintained in conjunction with the co-operative working that currently exists with local criminal justice boards. These are complex, interdependent, multi-dimensional arrangements and are working well. Regional commissioning on a collaborative basis with other boards is also practical and desirable. It follows that the boundaries of the new trusts must not be so different from the old boards if chaos is not to ensue when provision is fragmented. Otherwise, everyone loses out, especially the offender and the public.

If the Secretary of State himself makes contracts directly with providers, that should be for services that cover more than one trust boundary, but should not undermine the local lead provider model. In contracting out, it is also vital that national standards are maintained and put on a statutory footing, so that the delivery of services through the contracting process does not vary from area to area. In turn, they should be backed by statutory duties for the ROMs to sustain the standards applied to the boards.

Ultimately, what matters is, whether restricted or contracted out, the service to the public is effective and offenders are rehabilitated. There must be clarity, openness and consultation throughout, so that everyone is in the loop and knows what the issues are. At present, however, the thinking is so shrouded in mystery and lack of clarity that it is very difficult to plan or contribute to a workable new way of working.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I hope that I will be able to give the noble Baroness, Lady Anelay, the clarity that she seeks, and the noble Lord, Lord Wallace of Saltaire, reassurance. I suppose that I should not be surprised by the degree of scepticism and concern, but I reassure the noble Lord that what we are seeking to do is proportionate and, I would argue, well thought out. I hope that I will be able to explain to him how it will work. We had the opportunity to put quite a lot of flesh on the bones during earlier Committee sittings, where I tried to detail how the trusts would work, but I am very happy to take this opportunity to put even more flesh on the bones. I hope only that no one will think that the analogy will be obese by the time I have finished adding to its substance. The amendment of the noble Baroness, Lady Anelay, gives me an opportunity to do that.

Under the Bill, as noble Lords are aware, local probation boards cease to exist in their current form. I entirely accept that that has caused anxiety, as the noble Baroness, Lady Linklater, says. Clause 8, however, makes formal provision for this. Under Clause 3:

"The Secretary of State may make contractual or other arrangements with", a range of providers, including those from the voluntary, charity and private sectors. That does not mean, however, that we are privatising the Probation Service, which is one of the things that has been feared and talked about in the past. Far from it, because, as the noble Baroness pointed out, Clause 5 gives the Secretary of State the power to establish probation trusts as the public sector provider with which he may make these arrangements. Provided that their performance meets the requirements, probation trusts will become the lead provider in their probation area, acting under contract to their regional offender manager. Chief executives of probation trusts will no longer be line-managed by the director of probation in the National Offender Management Service headquarters, but will, under this construct, be managed locally by the chairs of the probation trusts. A degree of local autonomy in that regard will therefore be retained.

We want public sector probation services to step up to the challenge of making a real success of end-to-end offender management in probation and prisons. Probation trusts will concentrate on the delivery of offender management while commissioning much of their intervention work from other providers, based on what is most effective and who is best placed to deliver in their local community. As we have always made clear, we want to introduce these changes cautiously and in a measured fashion. Some have suggested that we are being too cautious and too measured, and that we should go much faster. I hear that even before it is said, but we think that this proportionate stance is the better way forward. Our aim is to provide the right mix of challenge and support to enable all probation boards to become probation trusts, in the next three years if possible.

We see this as a collaborative process, which is why we will invite—I emphasise "invite"—probation boards that meet the criteria on which we have just consulted to apply to become probation trusts. The criteria will combine assessments of each probation board's performance with consideration of its underlying capability. The first wave of probation trusts will come into being in April 2008. The second, much larger wave will follow in 2009-10, with the final wave following in 2010-11. We imagine only a very small number of probation boards making the transition to become probation trusts in this first wave. With public protection and the reduction of reoffending at stake we have to get this right. We will aim to select a geographically representative range of probation boards, with a mixture of urban and rural, and large and small. We will prioritise applications from probation boards which can demonstrate how they would use their status as probation trusts to deliver real improvements to service delivery. As this is all about partnership working, we will want to see how they would disseminate their learning in order to support further waves.

We believe that that is a cautious and sensible approach. There will inevitably be lessons to be learnt from establishing the first wave, but under our approach these can be readily incorporated into the later stages. This gradual approach will also allow areas performing less well sufficient time to improve their performance prior to becoming probation trusts.

Clause 5 enables us to establish probation trusts by order, which will set out the name and purposes of the trust. It is envisaged that trusts will continue to be linked to and named after their local area, but the order will not limit their activities to that area. So, for example, a trust with a particular expertise in one aspect of service delivery might deliver that service in other areas as well as its own. The detail of this will not be specified in the order but will be a matter for the contracts that will be delivered in due course.

Clause 5(1)(c) also enables the Secretary of State to dissolve a trust by order. There are two main sets of circumstances in which this might happen. The first is if a trust fails to secure contracts. The second is if two or more trusts agree that they would be more effective if they merge their operations. But we expect such an initiative to come from the trusts themselves; there are no plans for mergers from the centre. Subsection (6) enables the order establishing a probation trust to be amended by a subsequent order.

These order-making powers are not subject to any parliamentary procedure. Perhaps I may pray in aid what my noble friend Lord Warner said about how this is done. There is a real business case for doing it with a facility, particularly in the circumstances I describe, where a probation board may come forward saying, "We are ready to do this. We would like to become a trust". It would seem incredibly burdensome and arduous to demand in that situation that we go through the parliamentary process.

We believe that this is appropriate because a trust may need to be established also for commercial reasons; for example, to bid for a contract or because a contract is lost. As the Delegated Powers and Regulatory Reform Committee acknowledges in its immensely helpful report, for which I would like to take this opportunity to extend my thanks, this is similar to the procedures for establishing NHS trusts. It has asked for more information on how probation trusts will work in practice. Now that I have had the chance to set this out in more detail, I hope that noble Lords will be satisfied that the arrangements relating to establishing and dissolving probation trusts are subject to the appropriate level of scrutiny. I hope that the noble Baroness, Lady Anelay, and other noble Lords who have spoken, particularly those from the Liberal Democrat Benches—the noble Baroness, Lady Linklater, and the noble Lord, Lord Wallace of Saltaire—will think that this is an appropriate way forward.

I thank the noble Baroness in advance for her implicit assent to Amendment No. 129, tabled in my name. Clause 5(3)(c) gives the Secretary of State power to establish trusts by order, which must set out the purposes for which the trust is being established, and Clause 5 sets out what those purposes should include but gives the Secretary of State power to extend the purposes in regulations. The power to make regulations is currently subject to the negative procedure. As the noble Baroness indicated, the Delegated Powers and Regulatory Reform Committee has recommended that this power should either be limited in the Bill or subject to affirmative resolution. On reflection, we are persuaded by that and happy to accept the recommendation. For that reason, Amendment No. 129 will apply the affirmative procedure to this power.

I was also asked whether in effect the 42 trusts are simply going to be replaced by the 42 boards. I hope that, by talking about the tiered approach, I have made clear the expectation that by the end of the process the 42 trusts will be capable of being converted into probation trusts; but that depends on their being able to demonstrate that they meet the criteria for conversion. There are high-performing probation boards that one can envisage will do so with greater ease than others, and they are most likely to be in the first wave; those which are solid but perhaps still a little challenged might comprise the second wave; and the most challenged in performance, one can anticipate, may take a little longer and therefore are likely to be in the third wave. The boards will be awarded trust status when they have demonstrated their ability, but under these provisions, if they are not able to do so, we will be able to make appropriate changes to meet that eventuality.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs 5:00 pm, 5th June 2007

I thank the Minister for those reassuring words. Many on this side of the Committee welcome the commitment of the current Chancellor of the Exchequer to strengthening the role of Parliament in checking the Executive, and that is one of the reasons why we are not entirely sure whether we would wish to apply the predecessor example of the NHS in this area. Nor would many of us welcome the speed and extent of the structural churning of which the noble Lord, Lord Warner, appears to be so fond. The slow and proportionate process described by the Minister is therefore extremely welcome.

Last week I heard the current chairman of the Labour Party, a former Home Office Minister, give a powerful speech on the need to restore local autonomy and local democracy. There seems also to be a structural contradiction between the commitment of the current Government to that need and the idea that one sets up, abolishes or changes—sometimes for commercial reasons—bodies involved in the local delivery of services which are of direct concern to local communities, such as law and order. That is why we support pressing these amendments, and we are not yet entirely reassured by what the Government are saying.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I should like to ask the Minister two questions. I am grateful for her clarification, but by what criteria will trusts be judged, and who will select boards to become trusts?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

As I have indicated, the criteria for becoming a trust have been consulted upon. I shall certainly look to see what we can make available to assist noble Lords' understanding. To the extent that I am able, I shall certainly ensure that that is done.

In the first wave, the eligibility of probation boards to become trusts will be assessed by examination of their performance against national targets and standards together with the inspection results. The inspection criteria are available. Suitability will be assessed through a combination of self-assessment, stakeholder surveys, audit reports and diagnostic assessment by commissioners in partnership with the delivery and quality teams in the National Offender Management Service.

The review panel will comprise two NOMS directors and be attended by the chief officer and chair of applicant boards. The panel will ask questions and provide challenges on the capability criteria. Application boards will be expected to answer questions on their self-assessment as well as all other supporting material forming the capability assessments, and to provide evidence where necessary. The review panel will decide the final outcome by endorsement of the Secretary of State and will be empowered to either approve, partially pass—that is, limited freedoms—or defer to the next wave the application if it is deemed that the probation board applying for trust status is not yet ready. Each of the phases is designed to provide a robust mechanism to measure boards against the capability criteria and to give feedback to unsuccessful boards to assist them in becoming trusts in the future.

We are looking at these issues in a concrete way. The assessment process that probation boards are going through is helping them to enhance their performance. As I said, although many boards are performing to a very high standard, others have found it difficult to rise to the challenge for some time and may therefore have greater difficulties.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

The Minister was right to anticipate my support for government Amendment No. 129. That means, of course, that automatically my Amendments Nos. 55, 56 and 57 fall. So I address myself now solely to my concerns about the issues behind Amendment No. 59 and the lack of parliamentary scrutiny for the establishment and/or dissolution of trusts.

The Minister pointed out that the Government intend the introduction of trusts to be carried out in a cautious and measured fashion. She has put a little more flesh on the bones, as she put it, without the analogy becoming in the slightest bit obese; the Committee would like to see a little more fat and information on these matters. She has taken us a little way down the line but in a way that makes me even more concerned about the lack of parliamentary scrutiny for the establishment and, particularly, the dissolution of trusts when that might be necessary.

My real concern was to ask the Government for their justification in treating this aspect differently. The Minister repeated the rather brief argument that it was for commercial reasons. That is not a satisfactory answer. Parliament has a proper part to play in such scrutiny. The noble Lord, Lord Warner, prayed in aid what happens in primary care trusts. He was right not to push the analogy too far because we have been exploring in great detail over the first three days in Committee how we hope contestability might work within providers and probation trusts and we have not compared it like with like to the National Health Service. There are significant differences.

Photo of Lord Warner Lord Warner Labour

Can the noble Baroness explain why there is such a difference, when primary care trusts have both a provider and a commissioning role? A probation trust may be in both those relationships. There seems a considerable analogy between the two in terms of functionality, even though the services are different.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

The noble Lord, Lord Warner, would have a stronger point if the Government had not conceded already by Clause 4 that they are in trouble and have had to ring-fence some of the original services. So I do not take the strictures of the noble Lord, Lord Warner, in that respect.

The existing parliamentary scrutiny of the formation and dissolution of probation boards was helpful. As we move into a new area, which I hope will be very successful and wish well, parliamentary scrutiny is important. I am always aware that if we casually discard the right of the two Houses to exercise parliamentary scrutiny, we never get it back again. It is with that in mind that, while I shall withdraw Amendment No. 55, I give notice that I will seek to press Amendment No. 59 to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 58 not moved.]

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

moved Amendment No. 59:

Clause 5, page 4, line 43, at end insert—

"( ) An order under subsection (6) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament."

On Question, Whether the said amendment (No. 59) shall be agreed to?

Their Lordships divided: Contents, 140; Not-Contents, 126.

Division number 1 Private Parking: Ports and Trading Estates — Offender Management Bill

Aye: 138 Members of the House of Lords

No: 124 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 5, as amended, agreed to.

Schedule 1 [Probation trusts: further provisions]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 5:21 pm, 5th June 2007

moved Amendment No. 60:

Schedule 1, page 25, line 13, leave out "four" and insert "five"

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

In moving the amendment, I shall speak also to Amendments Nos. 61 and 64. In doing so, I welcome government Amendment No. 63, which goes a little way to satisfying our concerns, but not far enough. That sounds like an echo of my comments on the last group.

The Government have conceded the point that one of the members of a probation trust should be a member of a local authority, which brings a guarantee of better local input and accountability than is in the Bill as currently drafted. However, the Government have so far refused to accept that one of the other members should be a magistrate. Magistrates currently sit as members of probation boards.

Schedule 1 sets out some of the detail of the membership of the probation trusts and how they should follow good practice in their proceedings. Amendment No. 60 would change the minimum number of appointees for the probation trust from four to five, but it is simply a probing amendment to ask the Government to explain how they intend to fill the new posts. When we debated Amendment No. 14, we heard that the Government have already started to recruit chairmen and members, even though the Bill has not completed its passage through the House. On what basis is the selection taking place and what expertise will be required? The method of selecting chairmen is particularly important, as the Minister in another place said—in Standing Committee, at col.111 on 16 January—that it would be up to the Secretary of State and the chairman between them to decide how many members there should be on any given trust.

Why do I believe that magistrates should continue to serve on local probation organisations as of right—where boards, now trusts? If I am not too careful, I will be in danger of repeating at length the arguments I gave during the passage of the Police and Justice Act last year as to the merits of having a magistrate as a member of a police authority, so I shall resist the temptation to go into too much detail.

The Minister will recall that she reconsidered her position after a report on that Act last year and agreed that a magistrate should indeed be a member of the authority. That was a welcome development. I hope that she will take the same opportunity today to signal a change of heart with regard to the membership by magistrates of probation trusts. I strongly consider that magistrates should remain as a category of membership in their own right, not least because of the valuable expertise that they bring to the local criminal justice system. Magistrates have invaluable local knowledge—a prerequisite of their appointment as a magistrate to their local bench. Many of them are business people but all of them have a business-like attitude. They would not survive as successful magistrates these days if they did not. It is important that they should remain members of trusts as of right rather than being left to the melting pot of selection among all applicants who are swept up in the reference to "other members" in paragraph 3(1)(a) of Schedule 1.

Amendment No. 64 is probing in nature. It explores the membership of trusts but goes wider and asks why the Government are not including in that membership representatives of the judiciary, police authorities and health experts. If they are not members, how do the Government intend that their expertise should be utilised?

It will remain important for members of probation trusts to have the widest possible experience of the justice arena and a local community background. Magistrates fulfil that requirement admirably. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I thank the noble Baroness for raising this issue as it enables me to deal in part with government Amendment No. 63. A vigorous debate on these issues occurred in the other place and gave rise to the government amendment.

I shall outline our response, but I say to the noble Baroness that I am almost timorous in doing so because she has said on a number of occasions that the Government have given in on something and that means that they must be giving in on everything. I add a word of caution as that might tempt us to think that it is not worth giving in on anything if that is the response.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

I am grateful to the noble Baroness for giving way. I was trying to give her credit and say that, on occasion, the Government accept a logical argument. The logical argument here is that we are discussing a similar local organisation whose knowledge of and expertise in criminal justice should be valued. Therefore, I hope that she will be able to exercise the same acumen as she did last year.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I thank the noble Baroness for her compliment, which I take in the spirit in which I always take compliments from her, as they are so genuine and heartfelt.

The amendments address a number of separate but related issues. It may therefore be helpful if I set out the background before I discuss the individual amendments in turn. When probation boards were first established under the Criminal Justice and Court Services Act 2000, there was a requirement for boards to include a Crown Court judge appointed by the Lord Chancellor, four magistrates and two local authority councillors. The requirement for a Crown Court judge is in the 2000 Act; the requirement for magistrates and councillors was in secondary legislation.

In November 2006 we amended the secondary legislation to remove the requirement for councillors and magistrates. We did so because 36 of the 42 probation boards had indicated that they required a reduced quorum to operate effectively. The previous arrangements would have prevented that taking place, as well as constricting our ability to recruit probation board members who suited the needs of their particular locality. It was for the same reason that, when we published our proposals for restructuring probation in November 2005, we made clear that we did not intend to apply any of these statutory requirements to the membership of probation trusts.

As for the judges, we felt that since the new arrangements envisage greater diversity of providers of probation services, it would be inappropriate for the Lord Chancellor to appoint a Crown Court judge as a member for just one type of body. Consultees, including the judges themselves, accepted this.

The rationale for magistrates and councillors was slightly different. We want the new probation trusts to be local bodies with a greater degree of independence from the centre. This means, as far as possible, letting them judge for themselves how they should be constituted according to their local circumstances and not being overly prescriptive from the centre. As now, members of probation trusts will be appointed by the Secretary of State, but chairs will be fully involved in the recruitment process.

During the Bill's passage through the other place considerable concern was expressed about the importance of the role of local councillors. On reflection, we conceded that councillors, as locally elected representatives, have an important and very specific role to play in ensuring that accountability. Amendment No. 63, tabled in my name, gives effect to that commitment.

However, I emphasise that we have made that change because of the very specific role that councillors can play in ensuring local accountability. I pray in aid the new position that we have in CDRPs, the local strategic partnerships, et cetera, where that interplay will be important. Amendments Nos. 60 and 61, tabled by the noble Baroness, Lady Anelay, seek to further restrict our ability to determine who is needed to deliver services most effectively in a given area. The amendments were discussed during Committee in the other place, but I am more than happy to set out again our thinking on these matters.

As the noble Baroness explained, Amendment No. 60 proposes that the minimum number of members in a probation trust should be raised from four to five. Amendment No. 64 proposes that each probation trust be chaired by a High Court or Crown Court judge, that the extra member proposed by Amendment No. 60 be chosen from a list of four eminent professions, and that the membership of a trust is representative of the population of the area in which it carries out its functions. I hope that I have already addressed the proposed requirement for the chair of the probation trust to be a judge of the High Court or Crown Court. Even the judges who disagreed with our proposals agreed that it would be inappropriate for them to be a member of a trust, let alone the chairman. This is not something to which they have given their assent. I know from the past that the noble Baroness would be the last person to say that they should be obliged so to do.

On the issue of prescribing a list of members, I of course accept that a member of the police authority or a qualified psychiatrist would bring extremely useful skills and influence to bear on running a probation trust. However, I think that we are all agreed that it is for the probation trust to determine the priorities in its area.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench 5:30 pm, 5th June 2007

May I ask the noble Baroness a question that I would have asked at the beginning, only she did not notice that I was about to stand up? I did not interrupt earlier, because I thought the answer might well come.

During my absence, perhaps I missed this question about whether the appointments are to be made under Nolan procedures or simply on knowledge of the person. What are the criteria for the skills looked for? I ask for two reasons. First, my experience in CAFCASS has taught me how vital it is that you have the proper range of skills to understand the service, combined with the business skills to understand how to develop new services. I am still unclear from the debate and the Bill how that is to be achieved. It is unclear from the schedule, and I do not know that I have picked it up in the Explanatory Notes or anywhere else.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

May I also put a question to the Minister? If it is necessary to put a judge as a specified person to chair the trust, what excludes magistrates being specified as members of this body?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

The noble Lord and the noble Baroness make important points. We need clarity in terms of criteria and I shall explain how that will be dealt with, but the process whereby chairs and probation board members were recently recruited will continue. That parity of treatment and the probity that we have will continue. The noble Baroness and the noble Lord know that we have to target the skills of those on the probation board to meet its needs, in the same way in which we will target the skills on the probation trust to meet its needs. That skills mix will be important.

The process was nationally managed. Competence was based on application and interview. Board chairs were appointed by the national director via delegated authority from the Secretary of State, and board members by a similar process. However, the board chair made the appointment acting on behalf of the Secretary of State, and the same will go for trusts in future. The answer to the noble Baroness's question is almost, "Don't worry". The probity that we had before has to continue; nothing will be done on a little frolic of the chairman's own with no appropriate criteria.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

Will the people concerned therefore not be representatives of any group, whatever group they come from, but bring their skills to the board as any board member does? I seek clarification.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

Some people will have a plethora of skills. I look across the way at the noble Baroness, Lady Anelay. She has many hats, so which would we choose? In the past she has been a magistrate, and now has skills performing on the Front Bench. Which category would she fall into? One has to look at the skills needed and match them. We may find that some members are able to fulfil different aspects of the skills needed on the board.

Photo of Viscount Tenby Viscount Tenby Crossbench

I apologise for interrupting, but we rather galloped on. I did not know that people were not going to speak to and support the amendment; I was waiting for others to come in as well, but that is my fault.

The noble Baroness made the point that it was considered at an earlier stage that the boards were becoming top heavy, which was one reason for doing away with magistrates—not local authority representatives, of course. Will one extra member make the whole enterprise lurch into complete incompetence and inability to get things done? If we were talking about 15, 10 or even five, perhaps, but one? Furthermore, that one is from the one area that has a tremendous interest in the legal process, what happens to the offenders and everything else.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

There was a look of bafflement on so many faces that I certainly thought that the Minister was getting up to reply to some minor point, and that we were all able to speak. May I ask—

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I shall sit down altogether. I looked around the Chamber—I am afraid that I did not look behind me but in front of me—after the noble Baroness, Lady Anelay, sat down. No one rose to their feet, so I thought that the Committee, unusually, simply wanted to hear an answer. I am most happy to regain my seat and not to get up until each and every Member of the Committee has sated their appetite to say exactly what they want.

Photo of Lord Judd Lord Judd Labour

That is an extremely helpful and generous response by my noble friend. Indeed, I had hoped to speak to Amendment No. 62, which somehow was not spoken to. I am not sure whether that was Liberal generosity or just a slip.

I am slightly confused. The Minister has emphasised several times in Committee the importance of partnership. In Scotland, it has been recognised that there is an intricate relationship between crime, punishment, rehabilitation, neighbourhoods and communities. If this is about partnership, involving the community, sharing responsibility and getting more people to see that they have a part to play, I for one cannot understand why it is not an altogether good idea to make sure that you bring in some representative of the local authority and of those administering justice in the local community. That seems a self-evident and practical fulfilment of the very point that my noble friend has so effectively stressed in her own observations in Committee.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

I was clearly at fault in being slow off the mark, because Amendment No. 62 is in my name and in the names of the noble Lord, Lord Judd, and my noble friend Lord Wallace. I wished to make a similar point before the Minister summed up. I apologise for being slow.

Our amendment places in the Bill a requirement for there to be a legal obligation for one member of a trust to be a magistrate in the probation trust area and another to be a local councillor in that area. There is no such requirement in the Bill at present. It is axiomatic, as the noble Lord, Lord Judd, said, that new trusts should, as far as possible, be representative of their local communities and consist not simply of local businesspeople, important though businesspeople are. Indeed, business expertise has been part of many existing boards. The one that I know well is in Chester, in the north-west.

The whole community must have confidence and faith in its probation services, particularly if it is expected to be involved, as it will be, in the rehabilitation of ex-offenders and their reintegration and acceptance into the community. If reoffending is to decrease, let alone stop, all sorts of local groups, churches and others must be engaged. Unless there are meaningful connections with the probation trusts, making that sort of confidence real will be very difficult and the vital reintegration is unlikely to be achieved. The provision should be community-led and will work only if local membership of trusts can create the links with the probation services and the understanding that is required.

I am grateful to the noble Lord, Lord Judd, for introducing our amendment.

Photo of Viscount Tenby Viscount Tenby Crossbench

I thank the Minister for her customary courtesy and kindness in providing us with this opportunity. She will have observed that, rather craftily, I have already said by means of asking a question most of what I wanted to say. I warmly support the amendment that was convincingly moved by the noble Baroness, Lady Anelay.

A great play has been made about businessmen. It is as if magistrates are a race apart and are a group of eccentric nonentities who do nothing but give people fines for not having a television licence or speeding. In fact, they are representative of society as a whole and there are some excellent men and women in the magistracy. I would go further. In a quarter of a century on the Bench, I have met some of the best and finest businessmen and women whom I have met in my long and undistinguished business career. I should declare an interest as an ex-magistrate who is now extinct. This is an important point that I am sorry to labour, but the Minister was absolutely right in being more amenable to the idea some months ago, as the noble Baroness, Lady Anelay, said. I ask the Minister to reconsider this, because many people feel strongly about it.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I am also grateful to the Minister for giving us time to speak. My contribution is not huge and I had thought it appropriate to speak a little after other noble Lords.

I am glad that the noble Baroness, Lady Linklater, mentioned the Cheshire Probation Board. Noble Lords may be interested to know who it consists of, because it seems to be a model of what trusts could be. It is chaired by the ex-chief probation officer of Manchester, who well understands the whole process, and includes the director of corporate banking of the Royal Bank of Scotland; a senior manager from the Liverpool and north-west Land Registry who understands regional government; a personnel manager and senior diversity officer from the Post Office in the north-west; a local councillor, a magistrate who happens to be the chair of a local NHS trust; the assistant chief constable; the assistant director of the Children's Society, who represents the voluntary sector; the head of the Youth Service; the head of heritage tourism, who represents the corporate sector; and the ex-governor of Her Majesty's Prison in Manchester. That is 11 people.

I was surprised to hear the Minister suggest that boards wanted the quorums reduced. In fact, that board deliberately wanted to expand to obtain representation of all sectors in the area. Its members feel that they are ideally placed to do precisely what trusts are meant to do. They are also represented on the local area criminal justice board and the criminal justice consultative committee—so they have fingers in all pies. This is precisely what trusts want—to be linked into the local community, if they are allowed to be.

My only query with the amendments remains the issue of the judge, which has already been discussed. The key factor in all this is the triumvirate of the police, the courts and probation, which has been at the heart of the management of offenders in the community since 1907. That factor must be retained and represented on the sort of trust that I mentioned.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 5:45 pm, 5th June 2007

I, too, apologise for speaking later than I should have done for the same reasons given by other noble Lords. Having heard about the expertise that is represented on the Cheshire Probation Board, it is puzzling why such people would not in future be eligible to be members of trusts. The amendments suggest that it is exactly such people who should put themselves forward for selection under the Nolan principles—with the exception of judges, who, I understand, have agreed that they do not want to chair the boards, which is fine. I would be satisfied by that. However, my point is that if they exist already, why do we need to change them? We can change the names from "probation boards" to "probation trusts", but is there any need to do more than that? I must declare an interest as an ex-magistrate, but what has been said about the wide knowledge of magistrates and their businesslike approach to the job of sitting on a probation board or trust is exactly what would qualify them. What expertise are we looking for that does not exist already?

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs

I will speak briefly because I am conscious that we wish to make progress. I strongly support Amendment No. 62 and share the concern that the model for setting up trusts with which the Government are presenting us is that of the early 1990s under the previous Conservative Government. That followed what was then the most fashionable business model, when it was believed that "businessmen" was a category that excluded all the other categories that we are talking about and that the pure businessmen model was somehow intrinsically better than local councillors. Anyone who was elected was clearly out.

In the past few months, I have listened to a number of Labour Ministers, not to mention all the candidates for the deputy leadership of that party, talking about the importance of providing local democracy. I went to a meeting of the New Local Government Network last week to find out what that meant, and I have to say that an hour and a half later I emerged no better informed than I had been when I went in. For me, the high point of the evening was when the acting director of the New Local Government Network suggested that one way of improving links between local and national democracy might be to appoint people who had local government experience to the House of Lords. That indicated a basic lack of research into the current composition of the House of Lords.

The Government's approach here shares some of that same confusion. If we want the trusts to be locally based and locally informed and have the confidence of the local communities in which they work, there needs to be the strongest possible local representation on them. I was not entirely reassured when I heard the Minister say that we should let the trusts judge for themselves who is best placed to serve, but I think I understood her to say that this meant the chair, nominated by the Secretary of State, proposing other people to the Secretary of State. That is a fairly weak definition of local autonomy.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I hope that noble Lords have now explored the issues that they want to explore so that I can respond. I do not really think that we are at odds. I absolutely agree with the noble Viscount, Lord Tenby: some of the finest magistrates happen to come from the business world. Therefore, does one say that they are qualified to sit on a trust as a magistrate or as a business person? The one does not disqualify the other, so they are not mutually exclusive.

I remind the Committee that the provision states that a minimum number of members need to form a probation trust. The number is four and it is not the maximum but the minimum. Therefore, it will be for the trust to determine according to the challenges, needs, complexion and complexity of its local area how many people are needed to develop the work, what skills those individuals should have and how matters will be balanced between them. The provision sets the minimum, not the maximum number. I say to the noble Baroness as gently as I can that I would prefer a minimum of four because it would mean that the number could not go lower than that but would have to go higher. I do not see that there would be a huge advantage in changing the number.

I shall turn to some of the other issues and hope that I will be able to quieten the concerns of a number of noble Lords. Amendment No. 64 proposes that each probation trust should be chaired by a High Court or Crown Court judge and it sets out the extra member proposed. I have tried to deal with how the members should be chosen. Amendment No. 60 states that they should be chosen from a list of four eminent professions and that the membership of a trust should be representative of the population as a whole. All that can be done in targeting the people who are needed on a particular trust.

I should declare an interest in relation to Cheshire. As noble Lords may know, I am the sponsor Minister for the local criminal just board in Cheshire, so I know it quite well. I am now also the sponsor Minister for Thames Valley and Liverpool. I have seen the advances and changes in the dynamics at Liverpool, which has been wonderful, so I know that a huge contribution can be made to the skills.

I think that I have already addressed the proposed requirement for the chair of the probation trust to be a judge. Even the judges who disagreed with our proposals agreed that it would be inappropriate for them to be members.

On the issue of prescribing a list of members, of course I accept that a member of the police authority or a qualified psychiatrist would bring extremely useful skills and influence to bear on running a probation trust. But I hope we all agree that it is for probation trusts to determine the priorities in their particular areas. Chairs may decide that it is more important to have members with experience in the housing, employment or drugs rehabilitation sectors, depending on the local circumstances. I do not think that it would be sensible centrally to seek to impose or prescribe an arbitrary list in this manner, because a trust may need a different skill which is individual to that trust but which may not be as important to another.

Amendment No. 64 also suggests adding a requirement for the trust's membership to be representative of the local population where practicable. This is similar to the requirement in the current legislation for probation board members to live or work in the board's area. We removed that altogether from the Bill simply because it seemed unnecessary. We are absolutely committed to maintaining local links, and we will make it clear that we expect trust members and chairs to continue to be drawn largely from the local area. After all, it will be crucial for the trust as a whole to have a good understanding of its area of operation.

We will ensure as far as possible that members are representative of the local population. We remain absolutely committed to diversity in the selection of trust members and, indeed, we have a good record in this area. But we must allow for the fact that other skills and experience will also be needed and that they may be more relevant for an individual appointment. It does not seem sensible, for example, to prohibit a probation trust in an area with a high unemployment rate from recruiting a member from outside the local area with extensive experience of finding work for offenders. I am sure that noble Lords will agree with that assessment.

Amendment No. 61 proposes adding a requirement that the membership of a probation trust must also contain a magistrate. I hope that I have been able to give an assurance on that. I believe we all agree that the expertise that a magistrate could bring as a member of a probation trust would be invaluable. But we must ensure that members are appointed because they are the best people for the job, rather than simply engaging in a quota-filling exercise. In many cases, this will mean that a magistrate will in fact be a member of a trust, and it may also mean that a number of the trust members will happen to be magistrates. A member may happen to be a psychiatrist who happens to be a businessman who happens to have a history of having been a lawyer. We can put together many different constructs.

It is important to note that in many cases more than one member will be a magistrate. The evidence from the recent recruitment round for probation boards bears that out, with the vast majority recruiting at least one magistrate to serve as members of the board. However, those magistrates were recruited because they were the best people for the job rather than by virtue of their profession.

Local sentencer liaison is of course crucial but this is a different task from that of running a probation trust. We think that more effective ways can be found of carrying out formal local liaison with sentencers than simply having a member who happens to be a magistrate. As we have already discussed, that is why we have worked hard to ensure that arrangements are already in place for liaison with sentencers. These existing and effective local liaison arrangements allow sentencers and probation managers to meet to discuss local issues and address local operational difficulties. These will, of course, continue under the new system, and work is under way to adapt them to the new arrangements.

I remain convinced that this is the right approach. I hope that noble Lords will bear that in mind and that the noble Baroness will be content to withdraw her amendment. I do not think that there is anything between us. This system gives local accountability and local flexibility in accordance with clear criteria which will deliver real excellence.

Photo of Lord Judd Lord Judd Labour

I declare an interest as a half Scot. It seems to me that, occasionally, we south of the Border could learn from the way in which the Scots see and approach matters. They seem to be approaching the inter-relationship with the local community very seriously, so can my noble friend assure me that, in drawing our conclusions, we have looked closely at what the Scots are doing and how they are doing it? Why do they see things as they do and what can we learn from that?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

We certainly have looked at the Scottish situation, which differs from ours. I emphasise to my noble friend that he must look not just at what we are doing on probation boards, but also at what we are doing to engage local people in local criminal justice boards, crime and disorder reduction partnerships, and the new arrangements that we are putting in place through local area agreements, which will reinforce the work done by local strategic partnerships. The local engagement that is now taking place as a result of neighbourhood policing and the new rollout has made a wealth of difference. If we aspire to that change, we understand absolutely the need to embed local accountability and local engagement in a way that is meaningful.

I say to the noble Viscount, Lord Tenby, and others that the work that we are doing with the various corporate alliances and the way in which we are involving business will help us to deliver on some things that we have wanted to do for a long time, whether it is occupation for those who are disadvantaged, accommodation, or better integration through sport and other activities. The corporate sector is taking a good, positive role in that, so there are many opportunities for us. That local grounding will be very important.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

I thank all Members of the Committee who have taken part in this not-so-short debate on a core issue of how membership of the trusts should be formed and how they will best serve our communities in the future. I made it clear that Amendments Nos. 60 and 64 are probing amendments. I shall leave those aside and carefully read what the Minister has said on them.

On Amendment No. 61, the Minister said in her rebuttal of my argument that magistrates should have a place as of right on probation trusts. She said that local councillors have a very specific role in local accountability. I argue that magistrates have a very specific role because of their knowledge of the criminal justice system. The noble Baroness, Lady Howarth, and the noble Lord, Lord Judd, were absolutely right to draw attention to the range of skills that must be represented on the trusts. If the trusts are to be successful, there must be no clones.

I was particularly interested in what the noble Lord, Lord Judd, said about the importance of working in partnership. That is where magistrates' skills are vital for the future success of trusts; with their knowledge of the local community, they can work in partnership with local authorities. The Minister was right to say that people should not be appointed unless they are the best for the job; this should not be a quota-filling exercise. That is absolutely right. However, through her own amendment, which puts in place someone who is a member of a local authority, she recognises the special ability of some people. I wish to do the same by recognising the special expertise of magistrates. Therefore, I beg leave to withdraw Amendment No. 60, but I shall press Amendment No. 61.

Amendment, by leave, withdrawn.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

moved Amendment No. 61:

Schedule 1, page 25, line 15, at end insert "; and

(c) a magistrate."

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

I beg to move and I wish to test the opinion of the Committee.

On Question, Whether the said amendment (No. 61) shall be agreed to?

Their Lordships divided: Contents, 122; Not-Contents, 123.

Division number 2 Private Parking: Ports and Trading Estates — Offender Management Bill

Aye: 120 Members of the House of Lords

No: 121 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

moved Amendment No. 62:

Schedule 1, page 25, line 15, at end insert—

"(c) a magistrate for the area in which the probation trust carries out its functions; and(d) a local councillor for the area in which the probation trust carries out its functions."

On Question, Whether the said amendment (No. 62) shall be agreed to?

Their Lordships divided: Contents, 120; Not-Contents, 116.

Division number 3 Private Parking: Ports and Trading Estates — Offender Management Bill

Aye: 118 Members of the House of Lords

No: 114 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction) 6:25 pm, 5th June 2007

moved Amendment No. 63:

Schedule 1, page 25, line 18, at end insert—

"(3) Where practicable, at least one of the appointed members of a probation trust must, when appointed, be a member of a relevant local authority.

(4) For the purposes of sub-paragraph (3) "relevant local authority" means—

(a) a county council, district council, or parish council in England, a London Borough council, the Common Council of the City of London or the Council of the Isles of Scilly; or(b) a county council, county borough council or community council in Wales."

On Question, amendment agreed to.

[Amendment No. 64 not moved.]

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

moved Amendment No. 65:

Schedule 1, page 26, line 15, leave out "are for the trust to determine" and insert "shall be determined by the Secretary of State"

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

Amendment No. 65 stands in my name and that of my noble friend Lady Turner of Camden. Schedule 1 transfers the determination of terms and conditions for probation staff to probation trusts. This amendment keeps collective bargaining at a national level and retains the status quo. It is always difficult and demoralising for staff who are carrying out the same jobs to be paid on different pay scales. Experience has shown that when that happens, it creates what used to be known in the car industry as leap-frogging; that is, one company's pay jumps over that of another, so spurring an upward spiral. This introduces pay that is not in the system and diverts considerable regional resources in the yearly merry-go-round of pay competition.

National collective bargaining maintains probation as a profession across England and Wales. If each trust is allowed to have different terms and conditions for probation staff, it would be detrimental to the efficiency and effectiveness of the service. Although the Probation Service has been made up of a number of local probation employers—there are currently 42 probation areas in England and Wales—since the 1940s, there has been national collective bargaining. There is also "continuous service" for staff moving between different areas—which means that service-related entitlements, such as annual leave, are not affected by moves between probation areas—and all staff are covered by the local government pension scheme. This means that there is a national professional career structure that enables staff to move between probation areas without detriment.

This free flow of staff between areas has been as much to the benefit of the service as to that of the staff. It has enabled enhanced staff professional career development, reduced staff wastage and ensured maximum benefit from the training investment made in staff. National collective bargaining underpins the very existence of the national probation profession. Probation Service pay and conditions have recently been modernised, and the Probation Service pay modernisation agreement was implemented with effect from April 2006. This modernised pay structure has introduced harmonised terms and conditions for all grades, new flexibilities for employers and a job evaluation system for all grades. Geographical and market forces arrangements are also in place to enable employers to take account of the particular circumstances they find themselves in without needing to move away from the national agreement. Separate collective bargaining arrangements for each probation employer would be inefficient and would necessitate an increased role for human resources and industrial relations for each employer. In the interests of efficiency and effectiveness, and in order to ensure the continuation of the probation profession, it is important that national collective bargaining for the Probation Service is retained and is provided for in the legislation.

Needless to say, Napo supports this amendment, and I thank it for its briefing. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I support my noble friend's amendment. Schedule 1 transfers the determination of terms and conditions for probation staff to probation trusts. This amendment keeps collective bargaining at a national level and retains the status quo. In our view, national collective bargaining for the Probation Service is a prerequisite for the maintenance of probation as a professional service across England and Wales. We do not believe that if each trust is allowed to have different terms and conditions for probation staff it would assist efficiency in the service. Although the Probation Service has been made up of a number of local probation employers—there are currently 42 probation areas in England and Wales—since the 1940s, there has been national collective bargaining. There is continuous service with staff moving between different areas. As my noble friend indicated, that has enabled the free flow of staff between areas to the benefit of the service. It enhances staff professional career prospects, reduces staff wastage and ensures that the maximum benefit is gained from training investment made in the staff. In other words, national collective bargaining underpins the very existence of the national probation profession.

As my noble friend said, this is the view of Napo, which is the union responsible for organising probation staff. It feels very strongly about the matter and has sent us briefing on it. I therefore hope that in view of what has been said by me and my noble friend that my noble friends on the Front Bench will be inclined to support our amendment.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

I support the amendment. The argument is not about central employment as against local employment of probation officers; it is about collective bargaining. The Probation Service has gone through drastic changes in the past few years. Despite contrary advice, we more or less decimated it by allowing local probation boards to appoint probation officers with the principal being appointed by the Home Office.

The argument moves further. Our opinion is that if it does not affect the local and national arguments, there are bound to be ways to establish certain standards for negotiation of salaries, training standards and so on. It is clear in the guidelines issued by the Home Office that any arrangement made requires the approval of the Secretary of State. In other words, somebody in the Home Office finally decides what is appropriate. It would be an absolute disaster if different probation trusts had different arrangements for negotiated settlements for conditions, service standards and so on.

Therefore, if the Home Office is there to set up the national standards, why is it not possible for the unions and others to negotiate at a national level the standards that are applicable? I find it difficult to understand how we can maintain a common thread among probation officers if that particular arrangement is lacking. I believe that there should be national guidelines for salaries, training requirements and contracts of employment. That can be done by a national approach to the matter. It does not take away the employment of local officers by individual probation trusts; it does not take away the local emphasis that we put on that. For that reason Napo is right. It acts not only as a union but quite often as a professional body to probation officers. It should be able to negotiate national standards with the Home Office rather than individually with probation boards. For that reason, we will certainly support the amendment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I, too, support the amendment. I am particularly interested in what the noble Lord, Lord Dholakia, said. As I have said on a number of occasions in Committee, it is hugely important to remember the people who are delivering the service. The noble Baroness, Lady Linklater, has quite rightly drawn attention to the recently published, on 1 June, performance report of the National Probation Service, which shows the best figures ever. Virtually everything has exceeded its target, some by up to 25 per cent.

I must say though that, as a soldier, I was concerned at the figure that was not up to standard; that is, sickness absence. It is at 12 per cent, which is 3 per cent higher than it should be. I was always taught as a young soldier that when you had signs of sickness, malingering or whatever, there was something wrong with morale and that you should take it seriously. Therefore, I believe that it would be divisive not to have a national system for looking after the staff's financial well-being and their career and to support properly every member of the probation staff as part of a national structure to support people carrying out a national role. The way the amendment has been put has covered all those points extremely well.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am sure that my noble friends Lady Gibson and Lady Turner will be aware that the issue covered by their amendment was discussed at length in Committee in another place. However, I am happy to repeat the assurances that were given then on the subject and to reinforce the messages that I am confident were delivered by my colleagues in another place.

Paragraphs 7 and 8 of Schedule 1 deal with the arrangements for trusts employing staff. Paragraph 7 states that the terms of employment are for the trust to determine. Paragraph 8 allows, but does not require, the Secretary of State to approve the terms of employment determined by trusts.

Amendment No. 65would have the effect of restricting that flexibility—and it is flexibility—and would require the Secretary of State to determine terms of employment. However, it should be clearly understood—I restate it—that we have no plans to change the current arrangements whereby pay and terms and conditions for probation staff are negotiated on a national basis through a national framework and national machinery. It is not currently either practical or appropriate for probation trusts to set their own terms and conditions. We envisage that that will remain the case for the foreseeable future.

We are, however, engaged in a process of reform, and that will not be completed overnight. The provisions under discussion have rightly been designed to leave us with an element of flexibility to respond to future local circumstances which by their very nature we cannot anticipate in every regard. Without a convincing reason, it does not make sense, as the amendment proposes, to restrict in primary legislation the ability to react to unforeseen circumstances which require this important element of flexibility—circumstances which the noble Baroness could not anticipate or foresee—or the ability to recognise the localism of the service.

It is not our intention to undermine in any way the national negotiation process or machinery or the way in which they work. We agree that some certainty is needed and that it makes good sense to negotiate on a national basis, but we do not want to produce an ironclad straitjacket for the service as the amendment suggests. I doubt whether the amendment will achieve entirely what its supporters are seeking as I do not think it will provide for all the circumstances of the national negotiation in the way in which it is alleged.

I also take issue with the words used by the noble Lord, Lord Dholakia, who said that the current arrangements had led to the decimation of probation officer services. I cannot agree with that. The noble Lord, Lord Ramsbotham, has very helpfully reminded us that the Probation Service is achieving and working very well, a point which is underlined by the latest set of reports. The noble Lord, Lord Dholakia, was making a point about the different levels of appointment for chief probation officers and the local appointments process for probation officers more generally. I do not agree that that has led in any way or form to the decimation of the service. I would say that the service is doing well and that our necessary reforms will enable it to reach even higher levels of performance. That is our objective, and I am sure that it is shared by all sides of the Committee.

I hope that, having heard my words of reassurance, my noble friend will feel able to withdraw the amendment.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

I do not want to enter the whole debate that took place when the appointment of chief probation officers was taken over centrally by the Home Office, and the problem that that caused. I just remind the Minister what paragraph 7 of the schedule states. It states that the trust appoints its own staff and sets its own terms and conditions. Paragraph 8 provides that,

"the determination of terms of employment ... relating to ... remuneration, fees or expenses, and ... pensions allowances or gratuities ... requires the approval of the Secretary of State", unless he directs otherwise. That is very woolly. In other words, a trust may decide to pay less to a probation officer working in a rural area than to someone working in a highly concentrated area—for example, somewhere in London—as long as that arrangement is approved by the Secretary of State. That is not national negotiating standards; that will cause problems.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

The noble Lord draws too much into those words. Those staff will be TUPE-ed—I think that that is the expression. The statutory equivalent of TUPE will be in operation. Providers will have to take account of how the workforce regulations operate when they recruit new staff. Those terms will of course be no less favourable than those of employees transferred from the current arrangements. I do not see the problem that the noble Lord alludes to. That problem will not exist.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

As the Minister is talking about it, why under that paragraph will the trust not only appoint its staff—I have no problem with that—but set their terms and conditions? Why does the trust have to do that if there are national standards that the Home Office will implement?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

The noble Baroness is talking about the machinery for negotiating wages and conditions. Of course, the local flavour will be provided by the local trust. That is what is provided for. It is very clear and very simple. Nothing in what we propose in the legislation undermines the national negotiating process.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

I thank noble Lords who have taken part in the discussion, which has been interesting. I am not exactly sure where we stand now on national collective bargaining under the Bill. Napo certainly thinks that there may be difficulties. However, I thank my noble friend for what I think was a sympathetic response, which we shall obviously consider further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66 had been withdrawn from the Marshalled List.]

Schedule 1, as amended, agreed to.

Clause 6 [Power to make grants for probation purposes etc]:

Photo of Lord Judd Lord Judd Labour 6:45 pm, 5th June 2007

moved Amendment No. 67:

Clause 6, page 5, line 7, after "person" insert "or institution"

Photo of Lord Judd Lord Judd Labour

I shall also speak to Amendments Nos. 68 and 87 and, if I may, add a word on the amendment standing in the name of the noble Baroness, Lady Howe, Amendment No. 85.

The purpose of the amendments is to follow through some of the points made in our debate on Second Reading. We have covered some of the ground already in Committee. I remain convinced that the point about "person or institution" in Amendment No. 67 is very important. It is very confusing for many of those outside, with whom the Government seek co-operation in the fulfilment of probation services in the future, to talk about deals with individuals—by referring to a person where, in almost every instance, it will be with an institution. That needs to be made clear in the Bill because in such institutions, as I said previously in our deliberations, there is collective responsibility legally and morally. For example, in the voluntary sector, the Charity Commission requires every individual trustee to regard themselves as individually responsible, together with holding collective responsibility. It is important to reflect that in the Bill, especially as it is a Bill that comes from the Home Office.

Amendment No. 68 is crucial. We have been talking an awful lot about the business and administration arrangements for the future—the structures that will be in place—but the success of the whole operation will depend on the calibre and the quality of the people who are serving within it. If we do not have people of the right calibre, it could all prove positively damaging. If I may say so in parenthesis, that is why there is latent anxiety about the range of organisations with which co-operation will be possible. Some will take the business of calibre, qualifications and experience—one of the amendments refers to experience of personnel—much more seriously than others. We have already seen that in the sphere of organisations now working in the penal sector.

If that is to be done, we must recognise that it is a very exacting task to be involved in probation work, especially in rehabilitation. It is not something that you can just pick up and do. Interpersonal skills are crucial. As I said in our Second Reading debate, an understanding of evidence-based knowledge, critical judgment and other elements are crucial to success.

I have had the good fortune to do a bit of professional work with one university involved in such preparation for the health service and for police careers. A number of universities and centres of higher education now seek to make, are making or are capable of making a contribution. They need to be able to plan ahead with certainty. They cannot just pick up serious work in this sphere at the drop of a hat and then discard it. They must have the facilities, the resources and their own academic teams in place to undertake the work properly. That is brought out in the amendment standing in the name of the noble Baroness, Lady Howe.

My basic message is that if we will the end, we must will the means. We must say something about the means and the responsibility of the Secretary of State to ensure that the means are available in the Bill. That involves means in terms of people and their standard, as I said, but it is also means in terms of the facilities to enable people to reach the right degree of understanding, sensitivity and professionalism to undertake the work properly.

The amendments are designed to fulfil the task of ensuring that the Secretary of State sees it as a main responsibility to ensure that the means are available. I beg to move.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I support the amendment to which my name is added, moved so eloquently by the noble Lord, Lord Judd, concerning the necessary qualifications and skills that those undertaking this high level of work need. One of the concerns of the Probation Service and Napo is that there is no apparent reference to training in the Bill. My amendment—I support all the amendments in the group—seeks to suss out the Government's exact intention, not only for the present but for the future. This refers a little to our discussions earlier today on Clause 4. I very much want the Minister's reassurance that, for the three-year period referred to in Clause 4—and, of course, beyond if that period is extended—the Government have agreed that only those with full probation officer qualifications will provide court reports and supervise interventions with high-risk offenders. I am very definitely talking about high-risk offenders; we all know that some of the lesser forms of probation are undertaken by those who do not hold full qualifications.

I also ask the Minister to explain further why the reports for the Parole Board are not included. Having served on the Parole Board in a previous existence, I would have thought that it was crucial for the highest level of probation officer to prepare these reports for the Parole Board so that it may take the right decision about whether to grant parole. This is crucial not only for the protection of the public, which is what we are all about. The wrong judgment will affect the likely rehabilitation of the offender, so again we will not protect the public as we should. I would be very grateful either for confirmation that Clause 4 already achieves what my amendment seeks to do, or for an explanation as to why it does not.

Secondly—the noble Lord, Lord Judd, made this point—we really do need to ensure proper investment. The means are crucial. We also need those who deliver the training to have continued staff expertise. Currently, when the Secretary of State commissions universities to provide a degree-level course for the diploma in probation studies, the contract should be for a minimum of 10 years, now and in the future, rather than for four or five years, which is the current practice and which, as the noble Lord, Lord Judd, has said, really does restrict the quality and experience needed to gain a sufficiently high level of qualification.

My third point is rather more exploratory. I am quite certain that the Government will have been giving quite a lot of consideration to the design of an equivalent qualification for probation officers whom they believe to be qualified to do probation work with high-risk offenders and which could, under contestability, be part of the training of those who may be regarded in the future as fit to undertake the work that has previously been done by probation officers themselves. I argue—I am interested to know the Minister's reaction—that whoever does high-risk probation work under contestability should have a degree-level qualification that incorporates the particular specialist areas of qualification that are currently contained in the degree-level diploma in probation studies. Whatever else that course contains, it should contain those areas.

Finally, will the Minister who responds—I do not know whether it will be the noble Baroness, Lady Scotland, or the noble Lord, Lord Bassam—confirm that, if the Government's plans for contestability come into operation and community punishment and interventions are commissioned from voluntary, private or other public sector suppliers, a duty will be imposed on commissioners to employ sufficient staff with the sort of high-level qualification to which I referred to deliver the probation services? I have had discussions with those already involved in providing training, and their view is that community punishment and interventions require high levels of interpersonal and organisational skills to develop and sustain the consistent, confident and trust-based relationships needed to achieve change in offending behaviour and to be sensitive to risk and the public's protection. I hope that the Minister—I see that the noble Baroness, Lady Scotland, is in the Chamber—will be able to satisfy me on these points.

Photo of Lord Hylton Lord Hylton Crossbench

This group of amendments gives me the opportunity to make a point about the Parole Board. I understand that there are at this moment considerable delays in presenting prisoners, and the necessary reports on them, to the Parole Board. This has added unnecessarily to the lengths of sentences served. I believe that it has also led to individual prisoners making compensation claims for excess imprisonment. I hope that the Minister will be able to respond with good news about what is being done to put this problem right.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

The amendments to which I have put my name have already been most admirably covered by the noble Lord, Lord Judd, and my noble friend Lady Howe. I am particularly glad that the noble Lord, Lord Hylton, drew attention to parole, which was one of the issues that I was going to raise. There was a report in the newspapers last week about this, coupled with the problem in prisons of people not being able to get on the courses that they need in order to qualify for parole; so there is all that to be sorted out.

Further to the point about the qualifications needed by professional probation staff, I have been involved with the University of Portsmouth, which runs the extremely successful diploma course for probation staff, which has been mentioned. It does not make sense to cut any of the curriculum for that course, because it is in-depth and has been run over time. I absolutely agree with the idea of 10 years. This makes absolute sense, because it encourages the university to invest in that training and to become involved with the people who develop the training and who may relate it to the developing practice in the field.

It is terribly important that national standards are laid down for those in the voluntary and private sectors who carry out probation tasks. We cannot afford to cut that at all. I have observed with interest the different standards in the training of custody officers and prison officers in prisons, and we must not—particularly if we are dealing with people who are in the community, who are seen by the community, and who therefore affect the confidence of the community in the system—risk cutting any corners by employing people who are not qualified to do the work for which they have been employed.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs 7:00 pm, 5th June 2007

I support this amendment to which I have added my name, but I will speak especially to Amendment No. 68 on the training of probation officers, which is an essential dimension of their professional standing, authority and status. It means that they are able to draw on a body of evidence-based knowledge, to which the noble Lord, Lord Judd, referred, from which their training is derived and is essential to the expertise and the delivery of probation services. I know from my own experience of doing post-graduate training as a social worker that the training I had in college and in the field was absolutely essential to being able to do my job properly.

However, nothing in the Bill refers to professional training or qualification, which should be the starting point for anyone working in the field if they purport to be delivering probation services, whether it is supervision or any other probation task, to a proper, professional level. Instead, this silence implies that anyone could supervise offenders. Indeed, Clause 3(2) states:

"The Secretary of State may make contractual or other arrangements with any other person for the making of the probation provision".

Unfortunately, this reflects the fact that there has been a gradual erosion of probation training over the years. In the interests of saving money on the expense of a full training, the Government have been developing a second-tier workforce of probation service officers, PSOs, who do not have the benefit of full training. It is arguable that this has been to the detriment of effectiveness and quality of service delivery, which is hardly surprising.

Currently, it is a requirement in law that a fully-fledged probation officer has a Certificate of Qualification in Social Work—a CQSW—or a diploma in probation studies which is done over a two-year period using a mixture of distance learning, tutorials in college and supervision as part of a probation team. During that period staff have a protected caseload while doing their studies. By contrast, PSOs have no formal training and, with very little financial support for such training as they have from the centre, they are trained on the job. Ultimately, they do the same sort of work, with the same sort of responsibilities, as fully-trained probation officers.

Although I understand that there are plans to develop a better, modular training programme, it is still significantly less focused and thorough as the CQSW. There is a feeling in the service—rightly or wrongly, but the feeling exists—that the Home Office, probably born of these developments, does not really feel that qualifications are all that important and that anyone can really do the job, just as Clause 3 implies, provided they are reasonably intelligent. If nothing else, it is an indication of the feeling of not being valued within the service which should be tackled by government as those attitudes are extremely counterproductive and, like a self-fulfilling prophesy, can lead to a lower standard of service delivery by those who feel inadequate or undervalued.

In fact, the demands of the job and the standards required to do it are very high. MAPPA, for example, requires qualifications and experience to supervise and manage some of the most dangerous people in our society. But in London and most metropolitan boroughs, those offenders in risk categories 3 and 4 exceed the number of trained probation officers to supervise them, such is the size of their caseloads. I need hardly say that this is not a satisfactory situation. In the interests of public safety, as well as rehabilitation of the offender, it is absolutely vital that professional training is regulated and that the Secretary of State has a duty to determine that regulation which must be long enough and rigorous enough to give the staff effective skills for the job. The standing and authority of the profession of probation officers is predicated on this.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I had not intended to speak at this juncture but the speech made by the noble Baroness has spurred me to my feet. I am sure that she will not be relieved at what I shall say. I speak as a professional social worker. I do not have my registration yet. One day, when I get around to it, I shall clearly get it. Having said that, I am absolutely committed to high standards and quality of training, to which the Home Office and the Probation Service are equally committed. But every profession these days has auxiliaries who work with them. It seems that the Probation Service may be suffering from what the social work profession suffered from significantly in the past; that is, a professional pride that does not allow for alternative interventions.

Certain social work areas have social work auxiliaries. Noble Lords have to look only at some of the home interventions and services to know that that has made a tremendous difference to the work, and to the work of the social worker as a whole, because the supervision is always left in the hands of the professional who understands. I speak as the person who trained thousands of volunteers for ChildLine to speak on the telephone to children in the most extraordinary distress. You could not actually see those children and the suggestion was often made that that was not as difficult as being face to face, but I have to say that it is far more difficult. Those volunteers learnt to manage that and many developed into counsellors and went on to further training. That does not diminish the fact that we had to have qualified supervisors always on call and on duty to help to support and develop the volunteers' thinking.

I do not believe that auxiliaries and other people working with trained professionals in any way diminishes the professionals, but I know that there is a resistance in some areas of probation, which I have experienced in other organisations, to engage because of the feeing that auxiliaries are doing jobs that they should be doing. Experienced probation officers can then get on and do the really difficult work, so long as they use their auxiliaries to do other work.

Photo of Lord Judd Lord Judd Labour

Does the noble Baroness, Lady Howarth, agree that while of course we must be on our guard against the worst kind of professional conservatism, her very point emphasises the importance of proper professional training and preparation? If it is fit for the task, it will emphasise the importance of the contribution that can be made by auxiliaries, how they can be effectively woven into the system and how the best possible use can be made of them. The issue is the nature of the training and the nature of the professional qualification and ensuring that it is open-minded about the possibilities of bringing in people with lesser qualifications but using them effectively, which is very demanding of those who have got the qualifications.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I do not think that the noble Lord is saying anything different from what I have just said. High-level professional qualification is essential, but not on its own. I know professionals who really do not know how to carry out a clear assessment and an implementation plan in order to change behaviour. There are real issues about how we develop our skills. I know auxiliaries who have absolutely those skills. It is clearly a question of management as well as the training that is crucial to develop it, but I do not think that the noble Lord and I are in any different position.

Photo of Lord Warner Lord Warner Labour

I had not intended speaking on this amendment, but some of the remarks sound rather professionally protective. The Probation Service has to look outside at other public services which have used sub-professional people to bring in and do a lot of work. They then provide a pool of people who can move on and upwards, as the Government propose with PSOs, to generate more high-level professional qualifications. We can look at the police service with its community support officers; we can look at ambulance services with their emergency care practitioners; we can look at social work, where some of us were involved from the 1980s onwards with care managers who do not all need to be professionally qualified social workers; we can look at healthcare assistants in the NHS and at surgical practitioners doing some of the work of surgeons. I could go on in this vein.

The Probation Service has to recognise that part of a modern public service is to have groups of people at the sub-professional level feeding into the professional qualifications, doing the jobs which do not need higher level skills. That is not to say that we should not back good professional training and qualifications, but some of the debate so far on this amendment has sounded professionally protective.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

These amendments do not necessarily work against what the two previous speakers have said. We have debated in the House how beneficial the role of community support officers can be, particularly in building community relations and providing a pool of people from which the main police service can draw. But as regards the progress of that development, concerns have been expressed that community support officers are not being given the support and mentoring they need when they are first put in place. The same can be said for assistant midwives. They have been very beneficial, but a recent report pointed out that in some areas they are not being given the support and training they need to do their jobs properly. They have been given too much responsibility without adequate supervision. Equally, classroom assistants benefit teachers in many ways, but a respected report on children with learning disabilities, which came out six months ago, stated that many classroom assistants have not been given the training they need yet are often appointed to work with children with disabilities. There is a danger of losing control of the fine nuances in what is in many ways an important and welcome new policy. These amendments would help to avoid that by ensuring that the right levels of qualification and training are in place.

I turn now to my main concern. Utterly fundamental to the success of protecting the public is ensuring strong relationships, sustained over time, between probation officers and offenders, or between probation support officers and offenders. Many offenders experience for the first time a trusting relationship with someone who takes an interest in them but also sets clear limits on their behaviour. To do that, it is essential that front-line staff are empowered to reflect on what they are doing. That is how one sustains these difficult relationships. Let us remember that many offenders will have been in care themselves. Some 60 per cent of offenders were abused or neglected by their parents before being taken into care. Many will have had several foster placements while in care and probably attended several schools. They may well have had a chain of different social workers caring for them. That is but one group of offenders. Another group will have grown up with no father in the family. The Minister herself will be aware from speaking to prison officers how often they say, "Well, we are the first fathers that these young men have had". Many offenders will have suffered early developmental difficulties as well. They are complex, difficult people to work with and relating to them is challenging, but it is key to changing their behaviour and protecting the public.

What regrettably appears to have happened in the Probation Service, as it certainly has in social work, is that the capacity to reflect on what one is doing has been reduced over time, with the best of intentions. I am sure that my noble friend Lady Howarth would agree that the situation has deteriorated over time. Supervision and staff work discussion groups allowing people to gather together, facilitated by an experienced professional, to talk about individual cases and think of the best approaches to working with them, are important tools which have been eroded in the face of interesting and in many ways welcome developments and modernisation. However, there is always a danger of losing the key elements of success. Again, it is fundamentally important to ensure that proper training is given at the beginning, and that as part of that training an ingrained habit of reflection on practice is established.

We should think not only about initial training but about continuing professional development, which brings me on to the issue of turnover. It was troubling to hear from my noble friend Lord Ramsbotham that the one failure is that of staff sickness rates. One sees the problem in other areas. When staff involved in social work or in children's homes are not properly supported, turnover is high. Among the many regrettable impacts is that the relationships which are so fundamental to success in these areas are undermined. I look forward to the Minister's response and I shall be interested to hear any reassurances she can give.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 7:15 pm, 5th June 2007

My Lords, I shall speak to Amendment No. 86, which is tucked modestly in with this group. Almost everything has been said, so I shall find a tiny niche into which to slip some words. I sympathise with the principles that underlie the other amendments in this group because we are all trying to achieve excellence in the delivery of services. I do not think there is anything between us and the Government in this respect. One of the few times I have had to diverge from the view held by the noble Baroness, Lady Linklater, was when she said that the Government were taking the view that anybody can do the job. I have not heard that from the Minister; I have heard her talk repeatedly about excellence, the necessity of the ability to do the job and the importance of training. So I hope that we are going to be able to develop in a partnership way our approach to these amendments. I say that particularly because, when he started this debate, the noble Lord, Lord Judd, was absolutely right to emphasise the importance of the qualifications and calibre of those who do the job. As the noble Lord, Lord Ramsbotham, said, if those are right, we get the protection of the public right, and that is what noble Lords all around the Committee wish to achieve. It is a case of asking how we do that. The noble Baroness, Lady Howarth, was also right to point out that the Bill makes no reference to training; that is very strange.

Amendment No. 86 would ensure that the Secretary of State provided through regulations a benchmark for the minimum required qualifications of those who will carry out the day-to-day work of the Probation Service. When I saw Amendment No. 87, tabled by the noble Lord, Lord Judd, to my Amendment No. 86, I felt no pique. I looked at it and came to realise that he is absolutely right. If I had been minded to move my amendment tonight, which I assure the Minister I am not, I certainly would have accepted his amendment first. As it is, I want to make it clear at this point that I support government Amendment No. 69, to be considered in the next group, and that all my amendments both before us and in the ensuing group are probing. The noble Lord, Lord Smith, has now departed. He was very smartly dressed, I suspect for a dinner engagement, which may assure those who have other places to go that they might do so with a clearer conscience. I shall restrict most of my remarks to standards in order to address the specific requirements of my amendments.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

If there was any suggestion to the contrary by the noble Baroness, Lady Howarth—there probably was not—I wish to say that I understand very well and appreciate, better than most possibly, the role and value of volunteers and support officers in various respects. I have done this all my life, working with and training people in such positions. What prompted this amendment is something just referred to by the noble Baroness, Lady Anelay: the silence of the Bill on the supreme importance of professional qualifications and training. We should never seek to diminish the fundamental influence they have throughout the system, and they should never be allowed to slip.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I am in violent agreement with many who have spoken. As the noble Baroness, Lady Anelay, indicated, I have consistently sought to emphasise excellence, I have accepted the need for training and for the highest quality, and I take issue with the noble Baroness, Lady Linklater, on her suggestion that the Government think that training is unimportant.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I do not think we have been silent. Let me remind the noble Baroness about the history of what we inherited. When the Government came back into power, there had been a gap since 1995, when the previous Home Secretary terminated training arrangements, and a three-year gap during which no qualification training was available. Since 1998, more than 5,000 probation officers have achieved a diploma qualification. The Government currently invest £43 million per annum in the programme, and the contracts are sound. In order to assess whether the Government are committed to training, one has to look at what they have done, and a fair scrutiny of the Government's record would show a clear commitment to training.

I remind the Committee that the system of training that we are all rightly applauding is now carried out without any statutory basis at all. We are not talking about changing the situation, and our commitment to training has been maintained with that being the case throughout.

It may assist if I explain more how training operates now and what our plans are for the future, which may give a little reassurance. The current diploma in probation studies is the recognised qualification for probation officers and combines the national vocational qualification, NVQ, at level 4 with a BA honours degree. It is achieved within two years and is delivered by a combination of work-based learning and academic study. The Ministry of Justice holds five contracts with approved higher education providers for the degree element and the NVQ is administered via City and Guilds. The costs of development, delivery and quality assurance of the diploma are met from the NOMS budget.

In 2008, the diploma will be replaced by a new qualification pathway that will cover all practitioners currently working at the levels of Probation Service officer and probation officer. This revised qualification route will be modular and more flexible. It will provide for the first time a national qualification route for Probation Service officers and will be available to all practitioners working in offender management and interventions. The qualification will be based on national occupational standards and will be academically externally accredited. Entrants with existing relevant qualifications will be eligible for credits to exempt them from repetition. The qualification will be subject to a national specification and will be developed, procured and, therefore, quality-assured by NOMS. All future providers—I emphasise, all—will be required to adopt this national qualification route for staff and to source delivery from a nationally accredited provider. We are setting the same standard for everyone.

A number of noble Lords have asked—it is implicit in the debate—how this will operate as we move into the new arrangements proposed by the Bill, where services are delivered under contract. We will award contracts to providers in the first place only if they are able to demonstrate that they will have staff who are appropriately trained for the services they are delivering, and the contracts will set out our clear expectations in this regard. We know that we will need a sufficient number of trained staff to deliver services, whichever provider is awarded the contract. So, to enable us to meet the need, the National Offender Management Service plans to continue central commissioning and quality control of probation training, based on workforce planning, for the foreseeable future. NOMS will continue centrally to allocate training funding to develop and maintain the qualification and to quality-assure its delivery.

I turn now to the detail of the amendments, starting with Amendment No. 67. We discussed this issue when we debated Clause 3 earlier in the Committee. My noble friend Lord Bassam made clear that the definition of "any other person" in Clause 3 also includes organisations and institutions. That is also the case in Clause 6. So perhaps I may respectfully suggest that Amendment No. 67 is unnecessary.

The same can be said for Amendment No. 68. Clause 6 is permissive in that it allows payments to be made to any other person or institution,

"for any purpose falling within the probation purposes".

The cost of training, of course, falls within the probation purposes and it is not necessary to make explicit reference to it.

As drafted the amendment is technically deficient in its reference to "probation officers", which is not a statutory concept either under current legislation or this Bill. The existing legislation refers to "officers of a local probation board", which is updated in the Bill to "officers of a provider of probation services". The point is that the probation workforce does not comprise solely probation officers, as the noble Baronesses, Lady Howarth and Lady Linklater, and others have made clear; there is a spectrum of people who assist.

I agree with my noble friend Lord Warner that right across the public sector we have developed programmes for working with volunteers and subsidiary workers to increase and improve performance. I add to the list that he gave, of course, the teaching assistants upon whom we have come to rely and who give such valuable and powerful service to the teachers, parents and children of our country.

I understand the sentiments which underpin Amendment No. 85, tabled by the noble Baroness, Lady Howe, but it would not deliver the improvements she seeks. I remind her that there will be no difference in the qualification requirements demanded of providers, regardless of whether they are within the public, private or voluntary sectors. I can also confirm that people supplying reports will continue to be trained and have the same competence as they do now.

The first part of the noble Baroness's amendment would require the Secretary of State to make provision for national qualifications for all staff employed by a provider of probation services. In our debates on the Bill, noble Lords have frequently emphasised the importance of allowing local areas to make decisions for themselves, yet this proposed subsection envisages the Secretary of State prescribing qualifications for all staff employed by providers. It would catch staff at the most junior administrative grade right up to chief officers. As I have said, we employ cleaners in many probation boards and I suppose it would include them as well, skilled as they often have to be. Employers would no longer be free to make basic choices about such things as whether top probation managers take NVQ-based qualifications or MBAs. I hope noble Lords will accept that that is not sensible.

The second subsection requires the Secretary of State to accredit training providers for a minimum of 10 years. Again, this is excessively prescriptive. It would lock the National Offender Management Service into terms that may prove disadvantageous for a long period and would stifle innovation. However forward-looking we are, we cannot know what will be appropriate in 10 years' time. It would also lock other potential providers out of the market for too long for their knowledge to remain current. So it is potentially also anti-competitive.

The requirement on providers to employ sufficient staff with degree-level qualifications is, I know, intended to maintain standards, but it could have the reverse effect. It would enable and could encourage providers to employ staff with irrelevant or outdated degrees simply to meet a quota. The risk is that such people become a cheaper alternative to those who qualify via the nationally approved route. I do not believe that that is the intention of the amendment.

Amendment No. 86 is similar in effect to the first part of the amendment of the noble Baroness, Lady Howe, in that it requires the Secretary of State to make provision for the necessary qualifications for an officer or a provider of probation service, a term that, as was the case with my noble friend Lord Judd's amendments, casts the net beyond the group of staff that the noble Baroness, Lady Anelay, most wishes to catch. I understand why the noble Baroness has phrased her amendment that way, because it leads into the later amendments about which we are likely to be in agreement. Amendment No. 87 seeks to rectify that by referring to "all practising officers", but that is also technically deficient. We know what kind of staff it is intended to catch, but it actually fails accurately to define them.

In many ways, that brings us to the nub of the issue. Legislation is too blunt an instrument to deal with the complexity and create the flexibility that we need. It is for the centre to set the broad framework, but it is for the commissioners and providers to decide what qualifications and experience are required for particular tasks and how best they can be delivered. Some aspects of service delivery—with high-risk sex offenders, for example—will require particular types of training and experience. We also need to be able to respond flexibly to changing patterns of crime and offences. What should matter to Parliament is that these arrangements deliver the outcomes that offenders and communities need. Our next set of amendments, in which we consider standards, rightly addresses that issue.

I appreciate the opportunity to debate the amendments and the way we have been able to explore these issues, but I am not sure that these provisions should be included in the Bill.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 7:30 pm, 5th June 2007

I thank the Minister for giving way. As I think I explained, I was seeking clarification of what the intentions were, rather than thinking that these particular amendments would achieve all our objectives.

The Secretary of State has a major role now in commissioning the sort of training that probation officers have to undergo and, so far as I understand, will continue to be responsible at that level for national training, which I understand the Minister said will apply to all those going into this form of training. It will be ladder-learning—getting up to the appropriate level—but there will be a level below which you would not be expected to be involved with the very delicate and important role that probation officers undertake at this time. It must be crucial that whoever is commissioned to do that work has sufficient resources, which must be pretty well wholly supplied centrally, to recruit the right people to undertake the training. If 10 years is too long, what period is necessary for a provider to gather the resources to supply the necessary training?

What level of qualification does the Minister think will be necessary for dealing with these offenders who are a high risk to everyone concerned, and who are currently dealt with for the next three years by probation officers under the amendment agreed in the other place? I would be grateful for a little more information on that.

I more than understand that my amendment, and some of my earlier amendments, do not entirely suit what should be in the Bill, if indeed anything needs to go in the Bill. We need proper reassurance that standards will be maintained. As the Minister said, that is her aim above all others, and I hope she will understand that we are trying to help her achieve it.

Photo of Lord Hylton Lord Hylton Crossbench

Before the Minister responds, I remind her of my point about the Parole Board.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

Before the Minister responds to my noble friend's comments, I hope I may be helpful. This is an adjunct to my noble friend's concerns. In her helpful reply, the Minister talked about NVQ level 4. That is welcome and reassuring, but elsewhere there is a general concern that national vocational qualifications, welcome in themselves, tend to deal only with the "how" of things, not the "why". They do not have a theoretical basis. Perhaps there is not entirely agreement on that. But when one thinks how important reflection is to being successful in this area, I hope the Minister might think about perhaps being more ambitious and introducing a theoretical qualification as well as a vocational one. In Scotland, for instance, the staff in children's homes are expected to have, as here, NVQ level 3 in childcare. However, they are also expected to have an HNC, so they have both a theoretical and a practical understanding of what to do. The Minister might think about that.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I am grateful to the noble Baroness, Lady Howe, for the way she now accepts that the thrust of what we are doing is in the right direction. I am heartened by that, and I agree with her. The qualification and expertise currently available to us is at least at a level that I would aspire for us to continue to have. We are not suggesting that there is going to be material change. Throughout all this I have tried to emphasise that it does not matter whether it is the public, private or voluntary sector that is doing the work; it is the standard that has to be assured and delivered. The qualification set that we will ask of anyone who is contracting with us will be the same. If they can provide that quality of service, they will in due course, once Clause 4 and the other issues change, be able to compete for that service.

As to the qualification probation officers hold—whether a CQSW, a diploma in social work or, for the majority of the workforce, a diploma in probation studies—I hear what the noble Earl, Lord Listowel, says. He knows, as I do, that the debate is ongoing about what the qualification should be, how long it should last, how we should develop the subsidiary workers, whether there should be a link between them and how they get on to the professional level, how we can ensure that they do not have to start from scratch and that we give proper credence to their experience. I am sure that debate will continue with ever-increasing vigour, and will not be diminished.

On the question asked by the noble Lord, Lord Hylton, he will know that there have been two judicial reviews with regard to those standards. There is a question about how we can get the Parole Board reports done. Those matters are continuing. The noble Lord should know that those two judicial reviews are sub judice, and therefore I cannot talk about them directly, but the Secretary of State for Justice is also seeking leave to appeal to the House of Lords in the case of Johnson, which held that where there was a delay in considering parole in determining sentences, a prisoner's damages would follow. All that is under review, but I assure him that the need to have speedy, accurate, well resourced and appropriate reports available to the Probation Board is well understood, and is being energetically pursued.

I hope I have now replied to all the issues raised. I have wrapped up the issues raised by the noble Baroness, Lady Linklater, and the noble Lord, Lord Ramsbotham. I thank my noble friend Lord Warner, and I agree with the noble Baroness, Lady Howarth. On that basis, I hope your Lordships will be content not to move any of the amendments and to allow the appropriate short adjournment.

Photo of Lord Judd Lord Judd Labour

I express profound gratitude to all those noble Lords who have spoken in this very important debate. I genuinely thank my noble friend for her powerful and in many ways convincing reply, and for the passion with which she has again expressed her own personal commitment to the issues about which we have been speaking.

My noble friend said that a couple of the amendments were unnecessary. I think that this is partly what goes wrong in politics. She knows what she means; her officials in the ministry know what they mean; and we, having heard her, understand what she means. But it is clear—or the amendments would not have been tabled—that the Bill is not as explicit as the debate that we have just had. Given the way the world operates, people will not go back to Hansard in future years to find out what the Minister of State, in all earnestness, said. Debates are inclined to get down to what the Bill actually says. If, for example, the word "institution" is not necessary but happens to express what my noble friend says she favours better than the word "person", it is quite absurd not to replace "person" with "institution". That is the kind of almost professional conservatism and inertia in public administration that we were worried about in elements of the Probation Service. Open-mindedness says, "If that's a better way to express it, let's do that". I would like my noble friend, in the spirit in which this exchange has taken place, to go away and think about that and see whether she cannot meet it at Report.

On provision, the same point applies. What has come across from this debate is that the Chamber feels strongly about the responsibility of the Secretary of State to provide the financial means for making effective the arrangements that are put in place or which have been theoretically prepared for ensuring that the resources are there to make a reality of aspiration. Aspirational legislation can become quite dangerous, because people become very cynical. What matters is that the meat and the mechanisms are there. From that standpoint, I again ask my noble friend whether she will not go away and think seriously about what has been said and whether, in the spirit of the creative open-mindedness which she has argued should have a place in the Probation Service, she cannot, within the channels of government, meet it at Report.

In the mean time, and full of hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Clause 6 agreed to.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Crime Reduction)

I think this is an appropriate moment to break and suggest that the Committee begin again at 8.45 pm. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.