Offender Management Bill

– in the House of Lords at 3:39 pm on 27th June 2007.

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Report received.

Clause 1 [Meaning of "the probation purposes"]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 3:40 pm, 27th June 2007

moved AmendmentNo. 1:

Clause 1, page 2, line 21, at end insert—

""prison" includes a young offender institution and a secure training centre;"

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

My Lords, we begin Report with an entirely technical amendment to Clause 1 which I trust will not detain the House overlong.

Noble Lords will recall that Clause 1 sets out the various purposes that govern the probation services that are to be provided under Part 1. Subsection (4) defines, for the purposes of the clause, various terms which are used in the clause. The amendment simply adds the term "prison" to that list and clarifies that, for the purposes of the clause, the term also includes young offender institutions and secure training centres. I beg to move.

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

My Lords, I am aware that we shall not be detained long with this, but I rise to express my regret and sadness that in the list of institutions that have been referred to, STCs have been included. Secure training centres are secure institutions for children as young as 12 and it is now formally on the books that we in this country imprison children as young as 12. Anyone with experience of children who require secure accommodation, as I and many others in this place have, recognises that prison is no place for a child, especially a very disturbed offending child. However awful their crime may be—and they can be awful—children are none the less children and they need the welfare, support, understanding and therapy that goes hand-in-hand with the sortof secure children's homes that we have alwaysargued for.

I will leave it at that and just say that I hope that the House will note that this is a very sad moment.

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

My Lords, I am grateful to the noble Baroness for her comments. I understand the sentiment behind them. I said that it was a technical amendment and that is exactly what it is. It is proposed for consistency in the legislation and to ensure that the language is right. Of course it is sad that people as young as 12 have to be confined. That will not change as a product of the amendment. The amendment secures the position that when young offenders are older—when they reach the age of 18 or 20—the Probation Service is legitimately enabled to work with them. This technical amendment is simply a reflection of that in part. Again, although I understand the sentiments expressed by the noble Baroness, thankfully not too many 12 year-olds have to be detained.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 3:45 pm, 27th June 2007

My Lords, I do not know whether it is in order to ask a question before the Minister concludes.

Photo of Baroness Hayman Baroness Hayman Lord Speaker

My Lords, the Minister has sat down, but perhaps the noble Lord wants to speak.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I intended to speak before but I was looking at my papers when the Minister rose. I entirely understand the point made by the noble Baroness, Lady Linklater, that instead of defining young offender institutions and secure training centres as prisons, perhaps the clause could be amended so that we are talking merely about assisting the rehabilitation of offenders who are being held in prison, which is the only place where prison is mentioned in this part, and then simply add, "and young offender institutions and secure training centres", rather than infer that secure training centres are prisons.

On Question, amendment agreed to.

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

moved Amendment No. 2:

After Clause 1, insert the following new Clause—

"Duty to co-operate

The Secretary of State, local probation boards, the Prison Service and such other persons or organisations as the Secretary of State may by order designate (a "designated body") shall co-operate with one another in carrying out their respective functions, in so far as those functions relate to the purposes identified in section 1 of the Criminal Justice and Court Services Act 2000 (c. 43)."

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

My Lords, we return again to this issue, as promised, following our interesting and robust debate in Committee. This issue is of central importance to the way in which various agencies responsible for offender management will do their business in the wake of the changes created by the Bill. As was pointed out, there was complete agreement in Committee that all concerned should indeed co-operate. The question was whether that co-operation should be a statutory duty in the Bill. Given the consensus in Committee, I hope that the Government will be prepared to listen on this occasion.

The Government's argument rested mainly on the reference to Clause 3(3), in which the Secretary of State is authorised to make probation provision with any person and,

"may in particular authorise or require that other person ... to co-operate with other providers of probation services".

It was argued that this amounted to the same position as that in our amendment. It is in fact crucially different, because a duty to co-operate is just that; an obligation to co-operate. This is important, because, as we all know, without such an obligation there is always the very real chance that there will be no such co-operation in the face of the constant competing demands on the time and resources of so many agencies in the field, and where optional commitments are the first to be ignored.

We also heard how there are already precedents in other areas, such as the duties of agencies under the Children Act and the duties to promote equality under the race relations legislation, which became a reality only when it became a duty. Members on all sides of the Committee—the noble Baronesses, Lady Gibson, Lady Stern and Lady Howe, the nobleLords, Lord Judd, Lord Ramsbotham and Lord Waddington, the noble Earl, Lord Listowel, and my noble friend Lord Dholakia—adduced many powerful arguments to support this case. They brought a considerable weight of wisdom to bear, which I suggest the Government should take very seriously. I recognise and applaud some of the changes that the Government are making, such as introducing reducing reoffending partnership boards. Indeed, the noble Baroness, Lady Scotland, actually talks about being,

"in many ways in violent agreement".—[Hansard, 21/5/07; col. 494.]

However, she should respond now on this issue, because we are far more likely to see the end-to-end offender management that we all seek through such a duty to co-operate.

I also sought to demonstrate that there has beena very different outcome in Scotland, where the situation was very similar. At the outset, there were consultation exercises in Scotland and England on changes to offender management, which produced very similar responses: an overwhelming resistance to a more centralised system from both ends of the UK; and less than 1 per cent of responses in favour of the plan in England. Scotland chose to listen, resulting is eight community justice authorities rooted in their local authorities consisting of a range of statutory partner bodies, including the voluntary sector, with an additional wider range of partners. Silos are being broken down and, although it is still early days, the enthusiasm from the Minister down for this way of working is palpable.

The point about illustrating this model just up the road is not to argue that it necessarily should be emulated in every respect or be dismissed because certain structures are different in England and Wales from those in Scotland, but to demonstrate what can and has been done in another part of the UK where the issues are not radically different, but where, as a result of the sort of changes that we have been advocating on these Benches, the outcomes are seriously good and the approach really worthy of consideration. It is our belief that this amendment will materially improve outcomes for the better, for better effective offender management, for the reduction of reoffending and for the better rehabilitation of offenders. We urge the Government this time to listen. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I was unable to take part in the Committee stage, but I hope that noble Lords will forgive me if I say a word now. The noble Baroness, Lady Linklater, of course knows all about the situation in Scotland. But I hope she will agree, to give the Government their due, that the Scottish system, as yet, is untested. It is on the statute book, but those concerned are still working out their roles in the new system. The noble Baroness said that the situation is different in Scotland; for example, there is no probation service and that work is done by the social work department. However, there is an aspiration in Scotland—whether the new Minister is very enthusiastic, I have no idea—that everyone should work together. The Act is designed to make that happen. We do not yet know whether it will work, but we shall see whether it does. We must remember that when talking about Scotland.

Photo of Lord Filkin Lord Filkin Labour

My Lords, not for the first time in my life I find myself in strong agreement with the noble Baroness, Lady Carnegy of Lour, who in a sense gets to the hub of this amendment. I am not clear whether it is effectively a probing and debating point to say that co-operation is important or whether it is a genuine attempt to say that we should stop the Bill, tear it apart and remodel it on the Scottish model. I thank the noble Baroness for shaking her head. Clearly, it is not that.

Therefore, the amendment is about whether we should put something explicit on co-operation further into the Bill. The amendment is not aided by the fact that, technically, it is flawed because it refers to probation boards rather than probation trusts, which, clearly, is what the Bill is all about. But let me not be nitpicking in that respect. It is really about whether there is a need to do this, given that there are already responsibilities on parties and further powers elsewhere in the Bill to insist on proper co-operation. As one would expect, the noble Baroness is absolutely right that co-operation is fundamental. But from what I understand—no doubt, my noble friend on the Front Bench will clarify this—the duty to co-operate will be reinforced by other elements in the Bill and we should not be so simple as to assume that simply putting it again in the Bill will transform behaviour.

The transformation of behaviour that is necessary to get a better reduction in reoffending will come in part from such measures, but even more so from the central structure of the Bill which is trying to ensure that there is a more end-to-end system of offender management and the development of a diversity of suppliers under proper local and central control. I hope that I have not been too harsh on the noble Baroness because I respect much of what she says in many debates.

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

My Lords, I do not think that the noble Lord, Lord Filkin, has been harsh, he has just got hold of the wrong end of the stick. If we wanted to destroy the clause, the amendment would have been quite different. My noble friend, with her considerable experience in Scotland, has been able to identify good practices there. Her amendment seeks to find out whether it is possible to establish a system in which a duty is placed on agencies to co-operate with each other. That is an important point. I am sure that the noble Baroness, Lady Scotland, is aware of the fact that until there was a duty to co-operate in terms of the duty to promote equality under the Race Relations Act, agencies did not have to do anything. They could sit quietly; the Race Relations Act could not damage them because they were doing nothing unlawful. At the same time, they never promoted equality to the extent required under this proposed new clause. By promoting this duty, there will be a positive response in terms of co-operation between different agencies.

Let us look at what happened when this issue was debated in the other place. The Bill received its Third Reading in the Commons on 28 February. It was amended by the Government so that court work is now exempt from its provisions. However, Clauses 2 to 5 still open up the work of the Probation Service to market forces and privatisation. A consultation document entitled Restructuring Probation to Reduce Re-offending was published on 11 October 2005. It is an interesting paper in which the Government propose to abolish the National Probation Service and replace it with a fragmented market of competing providers. It received 740 responses, of which under1 per cent were in favour of the proposals, which demonstrates very effectively that people are still unclear about this. All my noble friend's amendment seeks is to make sure that agencies co-operate with each other so that in the end-to-end management of this service, there are positive outcomes.

Photo of Lord Warner Lord Warner Labour

My Lords, I rise briefly to suggest that although I am strongly in favour of all parts of the United Kingdom learning from those where there are good practices, this amendment, apart frombeing technically defective, is a bit anachronistic and unnecessary. If this debate had been taking place in around 1997, I would have some sympathy with the thinking behind the amendment. The noble Baroness rather understates the extent to which partnership and co-operation between different criminal justice and other agencies has moved on, particularly following the Crime and Disorder Act 1998. We have bodies like crime and disorder reduction partnerships, youth offending teams, local criminal justice boards and a raft of other bodies working to ensure that the agencies work together. The structure of the Bill itself continues to encourage co-operation and joint working when dealing with some of the difficult problems that those in the Probation Service haveto face. This legislation builds on that co-operative approach, one that has become a much more significant part of the criminal justice system. This amendment is a bit out of time and rather unnecessary. All it does is extend the length of the Bill to no great purpose.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I am extremely sorry that the noble Lord, Lord Warner, has used the word "anachronistic", because that is far from what this amendment means. As I understand it, the Bill is all about the better management of offenders, and Part 1 in particular concentrates on the Probation Service. If you picked up this Bill, you could be forgiven for thinking that Part 1 is not really about the management of offenders, but the imposition of a different way of commissioning probation services. One element of making everything better is evolving the partnership of everyone involved. Many noble Lords have said that the probation system is not working as well as we should like. That is because co-operation has not been happening as much as people would like. Therefore, if we hope that the Bill will result in the better management of offenders, surely it is right to include in it all the words which we think will bring that about, including the element of co-operation which has not been as good as it should have been.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I support the amendment and will vote for it if it is pressed.

The amendment is necessary because co-operation between the Prison Service and the Probation Service is of the first importance. In the past they have had a somewhat different ethos from each other, which may explain why co-operation has been less than perfect. I agree that it is important to have it on the face ofthe Bill.

As to designation, I do not see how the Secretary of State can effectively know all about local voluntary organisations. Some will be good, some will be mediocre and some will be bad and, therefore, any designation should be done at a local level. Perhaps this could be incorporated in a future refinement of the amendment.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I do not quite understand some of the comments that the noble Baroness, Lady Linklater, and other noble Lords have made, so I hope the House will forgive me if I ask questions for clarification.

First, I thought the Bill was about partnership and co-operation and that the difficulty people were having with it was that it was moving out of the existing system—which, I agree with the noble Lord, Lord Warner, has moved on to some extent—into a position where even greater co-operation was made possible by the opening of markets. I use that term unreservedly and without the need to apologise for it, although opening those markets to the voluntary and private sectors is a cause of great concern among other noble Lords. The Bill's core being partnership and co-operation throughout, I should like clarification from the government Front Bench and from the noble Baroness, Lady Linklater, of the difference they feel the changes in the service will make.

The second area of confusion in which I find myself relates to the comments about the whole Bill and the fragmentation of the service by the movement forward in the Bill. I understood that we were talking not about fragmentation but about trusts which would have greater powers to draw the services closer together. It is to be hoped that the Bill has the capacity to retain central control on some services. I believe this is essential for the specialised services of which I have considerable personal experience, particularly in the treatment of sexual offenders. That is a very important element.

While recognising and agreeing with the noble Baroness, Lady Linklater, that there is a need for co-operation—I do not think anyone on the Floor of the House will disagree with that—I find it difficult to understand some of the comments from her side of the House on how that will be brought forward and improved by the amendment.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I spoke to this amendment on the previous occasion and supported the aims behind it. I agree that matters have moved on; there have been various Bills—they have not only been on offender management—advocating co-operation, working together and so on that have been somewhat allowed to go in their own directions.

The amendment attracts me because if you are talking about end-to-end offender management being the important aspect of the Bill, it ought to involve co-operation and, in particular, the Prison Service. But the Prison Service is hardly mentioned—I think it is mentioned once in the entire Bill—and end-to-end must involve it. Indeed, we must assume that training in the Prison Service is of an adequate level and parallel to that given to those who undertake probation duties.

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

My Lords, I am delighted to see the noble Baroness, Lady Linklater, in her place. I assure her that the Government take very seriously her comments about co-operation. I hope I will be able to help the House to agree that there is very little, if anything, between us. I agree with the comments made by my noble friends Lord Warner and Lord Filkin about how this matter should be looked at. The noble Baroness, Lady Howarth, has asked some very pertinent questions. We have moved quite a long way forward. The Scottish model, which the noble Baronesses, Lady Linklater and Lady Carnegy of Lour, have referred to, is admirable but set in a slightly different structure—a different system—and would not necessarily fit that easily here.

I have listened carefully to all those who have spoken. We are still very much in agreement about the importance of partnership working and the close co-operation between agencies involved in the supervision of offenders. The noble Baroness, Lady Howarth, is therefore right when she says that the whole Bill is about partnership; it is about nothing if not that. No one doubts that the task of reducing reoffending can be tackled effectively only by a full range of agencies working together. It is just not going to happen unless that occurs. That is whywe have established, both through statute and administratively, a whole range of mechanisms to facilitate multi-agency working.

I outlined those mechanisms in Committee on21 May and followed that up in greater detail in my letter of 4 June to noble Lords who had spoken in Committee. I do not apologise for the fact that that detailed note spanned over eight pages, because it was important for us to track through all the different statutory and other arrangements that we have in place to ensure that co-operation is embedded as a reality—it is systemically there—and cannot be inappropriately uprooted. I shall not repeat that detail today, but I remind noble Lords of the examples contained therein—the crime and disorder reduction partnerships, through which we delivered the prolific and other priority offenders programme; the multi-agency public protection arrangements; the local safeguarding children boards; the local criminal justice boards; the regional reducing reoffending partnership boards; and so on. All those initiatives have created a culture change in the way in which agencies now work together.

In the past few weeks I have been privileged to go up and down the country and speak to many of those working in the crime and disorder reduction partnerships, and I have been deeply impressed by what I have listened to. I have heard police officers who know as much about what is happening in education and health as they do about what is happening on the streets, and vice versa. They are thinking laterally; they are planning together; they are plotting, frankly, against the crooks and how better to address some of their needs. It is truly inspirational. So often we believe that by legislating we fix things. In fact, by legislating we create a framework within which others can fix things, and we already have much of that legislation. I do not disagree with the noble Baroness when she says that co-operation is vital.

The question we now have to address is what we can do to facilitate even greater and more effective co-operation. We have to cast our net more widely than we have in the past, so that arrangements encompass not only statutory agencies but all those agencies, from whichever sector, that have something to offer in the reduction of reoffending. That is what our proposals in Part 1 seek to do. The importance of co-operation is crucial to those arrangements. As I pointed out in Committee, Clause 3(3)(a) explicitly enables the Secretary of State to authorise or require—I emphasise "require"—providers to co-operate with one another and with other agencies involved in crime prevention, crime reduction or work with victims. Those expectations will be clearly set out in contracts.

The extent to which probation boards are ableto demonstrate their commitment to partnership working is one of the key criteria in the process that is under way to determine which probation boards should move to trust status first. I hear what the noble Lord, Lord Dholakia, says about making sure that co-operation is real, but this is a way in which we think we can deliver it. Thanks to the amendment agreed in Committee, the Bill now includes, in Schedule 3, a provision to ensure that probation providers participate fully in the negotiation and delivery of local area agreements.

This apparently straightforward amendment sits entirely outside the rest of the proposals in Part 1.It deals with the arrangements that we currentlyhave, whereby local probation boards operate in accordance with the Criminal Justice and Court Services Act 2000. It seeks to require local probation boards and other organisations that are involved in the supervision of offenders, such as the Prison Service and other organisations that are designated by order, to co-operate with one another. Now we know that that is really all that it does.

The amendment is technically deficient—I do not complain about that because it was what the noble Baroness was saying that was important, not the technical deficiency; we could, I am sure, cure that if we thought that we should do—and it fails to connect with the rest of the proposals in Part 1. It also fails to offer any real alternative to what we do now. None of us is naive enough to think that a simple duty to co-operate, without any worked-out system to underpin it, will change the way in which agencies work together. The amendment certainly will not facilitate the greater involvement of voluntary sector providers, nor offer more flexibility in commissioning of services. It will not, for example, enable any services to be commissioned regionally or across the prison gate—the noble Baroness, Lady Howarth, mentioned that. It maintains the existing divisions between agencies and geographical areas, which our proposals aim to bridge.

I welcome this debate and the support from all sides of the House for the principle of co-operation, but this amendment will not help us to achieve it.I invite the noble Baroness, Lady Linklater, to withdraw her amendment. This has been a valuable debate because it has reinforced again the fact that there is no disagreement in this House about the importance of co-operation or about the need to embed it between all agencies—public, private and not for profit. We are all conjoined in our belief that that is the only way in which we will reduce reoffending in our country.

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

My Lords, I thank the Minister for her full, thoughtful and helpful reply. I am also grateful to all those who participated in this short debate. I confirm that there was no question in my mind of wanting to tear up the Bill. The point about Scotland is that it is a fine example of what is possible in different, but not very different, circumstances. The arrangement has been live since the early spring, and had been running for a year before that; the noble Baroness, Lady Carnegy, might be interested to know that there have already been some very good results.

Of course I am aware of the range of agencies and of the way in which things have come on since the 1970s. One or two very important points have been raised. As the noble Lord, Lord Ramsbotham, said, if everything was perfect—if we were all co-operating so well—we would hardly need to be here. My noble friend Lord Dholakia gave a very important example involving the simple addition of a duty to co-operate. Co-operation is of course in people's minds—we all want co-operation but, in reality, as the noble Baroness, Lady Howarth, will know, there are often pressurised, difficult and competing demands and the things that you would like do not necessarily occur.

I have not made much of the slight anxiety that contestability—when agencies may be pitted against each other—may further undermine what we are suggesting; we seek to facilitate co-operation and ensure that it does indeed occur. After all, here we are. We all agree that this is an aspiration devoutly to be wished, but we want it to be more than an aspiration that may occur a great deal of the time. I understand that a lot of Part 1 is predicated on the assumption of co-operation. Ours is a simple, but crucial, added adjustment. It moves the Bill from the aspirational, and very often the real, to the obligatory. I simply cannot accept the possibility, suggested by the Minister, that the amendment would diminish the Bill and create divisions. This is an important core issue regarding how we all work together to make the Bill as good as it can be—the duty to co-operate is an important element. Having said that, I seek the opinion of the House.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 67; Not-Contents, 135.

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

Aye: 65 Members of the House of Lords

No: 133 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.

Clause 2 [Responsibility for ensuring the provision of probation services]:

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 4:26 pm, 27th June 2007

moved Amendment No. 3:

Clause 2, page 3, line 7, leave out paragraph (c) and insert—

"(c) the proper enforcement of court orders;"

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, again I mention a subject which was discussed at considerable length in Committee. At that time I proposed the removal of the word "punishment" from the principles of the Bill, as I did not think that punishment was the right word to apply to the activities of the Probation Service. During the discussion points were made by several noble Lords, which I have read and considered with great care. I read in particular the comments of the Minister. She said that she understood that punishment was included in the Bill because:

"Punishment is the sense of loss of liberty or other rights and freedoms".

That was not the point made by the noble Lord, Lord Brittan, when Home Secretary, and others; which was that prison was punishment and that the deprivation of liberty was the punishment awarded by the court. It is not a sense of loss of liberty; it is an actual loss of liberty. A sentence is an actual thing, not a sense of something.

The Minister invited me to withdraw my amendment because:

"Punishment is ... an integral part of any sentence and cannot be disentangled from the other purposes".—[Hansard, 16/5/07; col. 228.]

I accept that punishment is an integral part of the sentence because it is the sentence. However, it is the sentence awarded by the courts, not the Probation Service. As many noble Lords pointed out, the duty of the Probation Service is to execute the order or sentence of the court. It is required to do that over a period awarded by the court, and it has to do it in a manner appropriate to the sentence, the crime that led to the sentence and the needs of the offender, which have to be worked out; hence, the whole basis of the offender management system—end-to-end offender management based on the needs of the offender and aimed at rehabilitation. What is the aim of the Probation Service in this? Clause 2(4) sets out very clearly five aims:

"(a) the protection of the public"— we have no argument with that—

"(b) the reduction of re-offending"— we talked about that—

"(d) ensuring offenders' awareness of the effects of crime on the victims of crimes and the public"— and, most important of all, as we have said:

"(e) the rehabilitation of offenders".

Contained in those aims is the phrase,

"(c) the proper punishment of offenders".

Those other four—protection of the public, reduction of reoffending, ensuring offenders' awareness and rehabilitation—are aims and proper purposes for the Probation Service and are what it is all about; but punishment is not its role. If we are really being helpful in describing to people what probation is all about, we need to have a "doing word" that explains it better.

I am grateful to those Members of the House who mentioned other words. The one that seems to me to fit the bill best is "enforcement". That explains that there has got to be some enforcement of what the court says. This is not something to be treated lightly or wantonly; this is something that has to be done on behalf of the public to protect them, and it has to be done properly. What is it enforcing? It is enforcing the order of the court. The court determines that people come into the hands of the Probation Service. Therefore it seems to me that it is much better than having the wrong word "punishment" to have the right word "enforcement" of what it is that the court determines that the Probation Service should do. Again, because this is an important Bill and we hope that it has in it the proper description of what the management of offenders should be, and although we are playing with words, we should get those words right. These are the words that, having reflected on our discussion in Committee, I suggest to noble Lords are better than the word "punishment", because they describe what is required and they refer to enforcement, which many noble Lords felt ought to be in the Bill. They emphasise that it is the courts which are responsible for the sentence that has to be enforced.

Photo of Lord Judd Lord Judd Labour 4:30 pm, 27th June 2007

My Lords, before the noble Lord sits down, why in the spirit of the whole case that he has put does he use the word "enforcement" rather than "implementation"? It seems me to that the use of the word "enforcement" is open to the interpretation that it is partly about ensuring that punishment happens.

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Liberal Democrat

My Lords, the noble Lord is out of order. The noble Lord, Lord Ramsbotham, needs to move his amendment, and I need to do my little piece, and then the noble Lord can have his argument.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I beg to move.

Photo of Lord Judd Lord Judd Labour

My Lords, I apologise without reservation for having jumped the gun. I repeat—although I will not do so orally—my point. Will the noble Lord deal with it when he responds?

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

My Lords, I support the amendment, to which I have added my name. It involves the substitution of "the proper punishment of offenders" with "the proper enforcement of court orders". Simply, it reiterates the strongly held view of so many in the field as well as those speaking in Committee that the role of those working with offenders in the community or in prison is to see that the wishes of the court are carried out properly and are enforced. Those court orders, asthe noble Lord, Lord Ramsbotham, said, are the punishment, and it is the role of the court topunish. The principles underlying a sentence are the protection of the public, the reduction of reoffending, the needs of the victim, the awareness of the offender and rehabilitation. The responsibility for those in the community is to see that the court's wishes are adhered to and to facilitate their completion. If that fails, there is a return to court for a further decision on punishment. We would all be appalled if we found that probation officers or prison officers, or any other person working with offenders, had taken it on themselves personally to punish an offender.

There is considerable confusion in the Bill in the use of aims, purposes and services. Indeed, there is a perception in the Probation Service that it and the public are confused about what its true purpose now is. Its core work had been to advise, assist and befriend, but that has developed as the years have gone by into a role that is now perceived to be much more to do with enforcement. This does not sit easily with those earlier values that many in the Probation Service still wish to adhere to.

As an erstwhile social worker, though not a probation officer, I believe that unless we can not only restore but keep the true enabling, restoring and supportive role, predicated on a proper professional relationship in anyone providing probation services, we will be doing all of us a great disservice. For it is the belief in that capacity to change, for someone to move from being an offender to a citizen again, that makes possible the rehabilitation and the cessation of reoffending that we all earnestly desire.

Part of that process is that officers do all in their power to ensure that the court's orders are carried out to a successful conclusion and, therefore, they are indeed the agent of the punishment imposed by the court. That is very clear. There is a fine line which distinguishes that role between the enforcer and the enabler, which is not merely semantics, but makes a difference between a humane, constructive and affirming role and the negative, counterproductive trend that we have started to see. This is evidenced by such things as the fourfold increase in breaches in the past five years, mechanistic processes and the concern of the Lord Chief Justice, for example, that the automatic recall of released offenders for technical breaches has become a "trapdoor to prison", as he put it.

Punishment has indeed got its place, and we must never forget that. However, we also know that if punishment of our children is enforced by and through fear and rigid approaches, we will produce angry and rebellious offspring. It is a matter of intelligence and balance and we have reached a position where we are looking once again at that balance. The amendment is a small step inredressing it.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, the noble Lord, Lord Ramsbotham, said that we are playing with words. I think that he is wrong—we are working with words and words are hugely important in a Bill such as this. My inclination, subject to what the Minister will say, is to support the amendment, because it is important for the understanding by prisoners and probation officers and for the relationship between them.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I, too, think that words are extremely important and I support the amendment. As most noble Lords who have been present throughout our proceedings will know, I was quite distressed by this mistake, as I would describe it, when it originally came up in the Criminal Justice and Court Services Bill in 2000. I protested then against the use of the word "punish". I imagine that the reason it was introduced was to give the impression that everything was toughening up. It seems to me that it was a fantasy to think that the public reads Acts of Parliament to see that the Government are toughening up by putting in "punish" when it was not there previously. I am not sure that it had any effect whatever in making people think that things had toughened up. It always seemed improper to ask public servants to punish someone; that can be a role only of a court. Of course, "punish" is not what is actually meant, because, as the noble Baroness, Lady Linklater, said, I imagine that the Minister has no intention whatever that probation officers should start punishing people. If they were to do so, presumably they would be subject to some disciplinary action. All they can do is implement, administer and enforce orders passed in some judicial way.

The use of the term confuses the offender, who is not sure what sort of person a probation officer is, and it confuses the probation officer, who is not sure what sort of person he or she should be. It also works against effectiveness and against helping people to give up crime. We know what helps people to give up crime: it is a close relationship with a supervisor who is respected by the supervised offender; it is rebuilding local links and giving a person a stake in everyday life; and it is giving that person an identity other than "criminal" of which he can be proud, such as "worker", "student" or "member of society".

Since we started our debates on the Bill, the noble Lord, Lord Judd, has constantly talked about rehabilitation. I am certainly with him in sayingthat, if we could delete all instances of the words "management of offenders" and replace them with "rehabilitation", the Bill would be much more evidence-based. Certainly, it would not include the word "punishment" as a function of probation officers. I very much support the amendment and I would not even object to the formulation of the noble Lord, Lord Judd, of "implementation" rather than "enforcement".

Photo of Lord Rosser Lord Rosser Labour

My Lords, when I spoke at Second Reading, I declared my interests as set out in the register of being on prison and national offender management boards. However, any views that I express are mine and mine alone.

I am opposed to the amendment, although I share the view that to some extent this is an argument about words. The subsection that we are looking at also refers to the protection of the public, the reductionof reoffending and the rehabilitation of offenders, which are all things that a sentence can be designedto achieve, but a sentence can also be designed to achieve what it is suggested should be taken out—namely, the punishment of offenders.

I appreciate that others are arguing very differently but I think that it sends a wrong message to suggest that the Probation Service has nothing whatever to do with the punishment of offenders. The Probation Service is part of the criminal justice system, and punishment is part of that system and of sentences, in the same way as are seeking to achieve a reduction in reoffending, rehabilitation and protecting the public. Some may argue that penalties given by courts are basically about punishment. Doing unpaid work may have a rehabilitative effect but it is also a punishment that can be imposed. If we delete the reference to punishment of offenders from the clause, I think that we will send the wrong message about one of the roles of the Probation Service.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, before the noble Lord sits down, perhaps I may ask him whether he is therefore in favour of amending the Prison Act to say that one of the functions of prison officers is punishment.

Photo of Lord Rosser Lord Rosser Labour

My Lords, I am speaking to this amendment and have said that, when decisions are made in relation to sentences, the courts have to indicate the purposes of the sentences. The purposeof a sentence can be to achieve a reduction in reoffending, to protect the public and to rehabilitate offenders; it can also be to punish.

Photo of Lord Judd Lord Judd Labour

My Lords, before my noble friend sits down, on reflection, is he really saying that, if part of the offender's rehabilitation is the requirement to undertake unpaid work and that unpaid work is in the form of community service, it will help to bring him to an understanding of the nature of society and responsibility within society if the idea grows that this is a punishment?

Photo of Lord Rosser Lord Rosser Labour 4:45 pm, 27th June 2007

My Lords, I fear that this is getting somewhat repetitive, but it is a fact that, when courts make decisions and have to set down the purpose of the penalty that they are proposing, an issue can be about punishing the offender as well as the other things to which the subsection refers. We cannot get away from that fact.

Photo of The Bishop of Liverpool The Bishop of Liverpool Bishop

My Lords, I support the amendment. I should say at the outset that I am not squeamish about the word "punishment" either philosophically or theologically I believe in just deserts and in the exercise of punishment for the good of the offender as well as for the good of society.

I support the amendment because some years ago the Audit Commission brought out a report, Misspent Youth, which analysed the different ways in which a young offender could be rehabilitated in society. It came to the conclusion, which may not be surprising to your Lordships, but which was a point worth making and needs repeating, that the single most effective thing in restoring a young offender was for that young person to encounter an adult who believed in them. In my own work and ministry, I have seen that time and again, especially in the inner city. When young offenders meet an adult who believes in them, that becomes the path to restoration.

The amendment is important because it points out the role of the new probation trusts in providing offenders with people who believe in them. Words in the end are important. I repeat that punishment is important—it is at the heart of the Bill—but, when describing the services of the probation trust and the people who work there, we need to emphasise the need to recruit people who believe in the potential of an offender to repent, to be restored and to be rehabilitated. Frankly, I worry about the sort of people who might be attracted to work for probation trusts because they see "proper punishment of offenders" as one of the five things that they are meant to do. That worries me and it is why I support the noble Lord's amendment.

Photo of Lord Warner Lord Warner Labour

My Lords, I, too, think that words are important. It is important that we also have regard to the fact that this amendment relates to a clause in the Bill that is meant to shape the issues that the Secretary of State should have regard to in terms of probation purposes.

It is difficult to counter many of the arguments that my noble friend Lord Rosser set out so clearly. I am genuinely puzzled about the amendment and why so many noble Lords are apprehensive about the word "punishment". In my five years as chairman of the Youth Justice Board for England and Wales, I spent a lot of time thinking about and discussing the issueof punishment and its contribution to changing behaviour and—this is also worth bearing in mind—how victims viewed punishment as part of the process of change.

"Punishment" is certainly a word that enters into conversations between staff and offenders, whether they are young or old; we delude ourselves if we think that it is not. The dictionary meaning of the word encourages one to be a little less squeamish about it. The term embraces several concepts in the Oxford English Dictionary. My recollection is that the courts themselves tend to use dictionary meanings of words in their interpretation of the law. One concept of punishment is,

"infliction of a penalty in retribution for an offence", so there is some sense of paying back. Many of my conversations with victims and their families strongly suggest that there is some expectation of offenders facing consequences for their behaviour and making some kind of retribution or payback. That is often explicit in court orders and is part of the conversation that probation and youth offending team staff have with offenders.

A second concept in the definition of the word—again, I turn to the Oxford English Dictionary—is an,

"unpleasant consequence ... experienced ... under specific conditions so that, through avoidance, the desired ... behaviour becomes established".

If that is not about rehabilitation and changing behaviour, I am not sure what is. I think that we all agree that the management of offenders should have trying to change behaviour at its heart, but that is an integral concept within the term "punishment", too, as I have tried to show.

The Government seem to have the words right in the Bill. The words "proper punishment" reflect an appropriate aim that the Secretary of State should have regard to. That is a more constructive aim than simply being an enforcer of a court order. The amendment would weaken, not strengthen, the role of probation staff, and the House would be wise not to go down that route.

Photo of Baroness Warnock Baroness Warnock Crossbench

My Lords, I must rise to support the amendment. There is nothing more dreadful to a philosopher than to hear people say, "It's just a word". The word's connotation is enormously important. The main point made by my noble friend Lord Ramsbotham is that there is an important distinction between issuing an order that someone be punished and ensuring that that punishment is properly carried out. The one is the role only of the courts; the other is a crucial element in the role of the probation officer.

To overlook the ceremonial aspect of the word "punish"—or "make an order"—is to confuse the role of the probation officer with that of the judge, magistrate or court as a whole, who have the authority to issue a punishment. The probation officer, on the other hand, is being given the authority to ensure that that punishment is carried out. We need to bear that distinction in mind. It is enormously important both for the probation officer himself, as my noble friend Lady Stern has said, and for the criminal that they should understand the difference between the official issuing of the order and the person who is, perhaps to the sorrow of the criminal, ensuring that that order is carried out. That is a huge difference. Although the amendment obviously turns on one word, it is very important indeed.

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

My Lords, I strongly support that last contribution. Courts punish and their agents enforce the orders that the courts have given. We are asking for a probation service, or providers of probation, to enforce those orders. I understand, having heard the speeches of the noble Lords, Lord Rosser and Lord Warner, that there is an underlying sense that they want to ensure that people do not think that non-custodial sentences are an easy option and therefore want the word "punishment"to be attached as closely as possible. We now have community punishment orders, which are part of the way in which the Government are trying to get that message across. We will come back on a later amendment to the question of who is responsible for punishment and how it is carried out. It is a very important distinction in the role of the state and of those actors, public or private, who carry out the orders of the state. The Bill is intended to enable private actors to carry out some of those orders, but not, I suggest, to allow private actors to punish on behalf of the state, which would be improper. That is an important distinction, which we should not cross.

When I read the Carter report, I understood that part of the problem of our currently overcrowded prisons was the failure to enforce fines. That seems to have been lost in all this. Part of what we are trying to do with the Bill is to provide non-custodial ways of enforcing court decisions. Reduction of offending should be a major part of this, and rehabilitation has to be part of that. Therefore, it seems to me that the language matters a great deal. The instructions that we are giving to the providers of probation are to enforce the decision and to promote rehabilitation; they are not to be the punishers.

Photo of Lord Slynn of Hadley Lord Slynn of Hadley Crossbench

My Lords, I do not regard this amendment as simply raising a question of semantics or linguistics. It carries within it a very important question of principle as to the relative functions of the courts and the Probation Service. The distinction between punishment and enforcement of court orders is very real. That should not be overlooked. Subject to that, I wholly agree with the points made by the noble Lord, Lord Ramsbotham, so I will not repeat them or risk spoiling them by paraphrasing them. I well understand the point made by the noble Lord, Lord Judd, that there is a difference between enforcement and implementation. But if one is better than the other, I believe that it is only by a whisker. I am perfectly content to go along with the word proposed in the amendment, which I support.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I have listened to the discussion with great interest. The amendment has been discussed largely as though Clause 2(4) is a brief for probation officers. It is not. The wording of the Bill—I hesitate to say so after a very eminent retired Law Lord has spoken—indicates, as I think the noble Lord, Lord Warner, said, that this is a list of what the Secretary of State must have regard to when implementing the earlier part of Clause 2. He has to see to it that the arrangements that he makes for the Probation Service enable the proper punishment of offenders. That does not mean that probation officers are the punishers, but the arrangements in the clause add up to, among other things, the proper punishment of offenders. I shall listen to the reply to the Front Bench very carefully. I hope that when the noble Lord, Lord Ramsbotham, replies, he will justify what he said in that context—it is about the aims of the Secretary of State in implementing Clause 2, if I understand the clause correctly.

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

My Lords, the amendment of the noble Lord, Lord Ramsbotham, would change the drafting of subsection (4). That subsection was inserted into the Bill in another place at the request of my right honourable and honourable friends, and it repeats the drafting of a section in the first NOMS Bill, if we can call it that, which was published in January 2005.

I do not intend to return to the detail of the arguments that I put in Committee, as that would be improper now that we are on Report, but I argued for the retention of the phraseology in the Bill as drafted. I accept of course that whatever one inserts into the Bill in the way of a list of aims or principles, as happens in subsection (4), there is bound to be a debate around the precise content of that list. That is something that the Opposition always like to do, much to the disbenefit of the Government, but it is a healthy way to hold the Government to account. It may be irritating to the Government, but it is what opposition is about—trying to get at what is underneath the drafting of the Bill.

It has been important to have the debate again today. I have to say that I am unable to support the amendment of the noble Lord, Lord Ramsbotham, for the simple reason that, as the noble Baroness, Lady Scotland, was very quick to point out in Committee, my honourable friend Mr Edward Garnier accepted the drafting of subsection (4) as it is in the context of Clause 2 on Report in another place. He said that,

"in respect of the amendment, I applaud the Minister"— he goes a bit far, does he not?—

"and wish him well in that part of his work".—[Hansard, Commons, 28/2/07; col. 1007.]

We assented then; we do not dissent now. If the noble Lord, Lord Ramsbotham, were minded to press the matter to a Division today, I should have to invite my noble friends to abstain.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 5:00 pm, 27th June 2007

My Lords, the amendment has enabled the House to have a full discussion of the role of probation in ensuring the proper punishment of offenders. I listened with very great interest to the debate, which, as has been said, we have had before and at length. However, it falls to me to set out again the reasons why we cannot accept the amendment. I fully understand the spirit in which it has been moved and the purpose behind the debate. There was fair reflection from all sides of the House that one of the purposes of probation work is to ensure the effective carrying out of sentences and that those sentences rightly include punishment.

As noble Lords will recall, the probation aims were added to the Bill, as the noble Baroness, Lady Anelay, said, in response to requests made in Committee in another place. She was right to say that that was the case and right to insist on that clarity. As the noble Baroness, Lady Carnegy of Lour, pointed out, the Bill now places a duty on the Secretary of State to have regard to the aims in ensuring the provision of probation services. That is exactly why that part of the Bill is there.

The noble Baroness, Lady Anelay, stole my thunder, because I was going to quote back to your Lordships' House the words of the Member for Harborough, Edward Garnier, in confirming the Opposition's view. I rather agree with the noble Baroness that applauding an amendment is a novel practice in Parliament and might be considered by some to be a bit over the top. Nevertheless, Edward Garnier made his position very clear and we are grateful to him for that.

As the noble Baroness, Lady Stern, picked out, the aims replicate the aims that currently apply to probation by virtue of Section 2 of the Criminal Justice and Court Services Act 2000. The noble Baroness is entirely consistent: she did not like it then and she does not like it today. They are intended to define the core outcomes and the core work of probation. Of course, no list is ever perfect or complete, but the aims are very easily understood and have served their purpose well. When they were added to the Bill in the other place, there was no suggestion that it would be useful as a task to reopen them atthis stage.

More fundamentally, it would be most unusualif the aims of the Probation Service, one of the linchpins of the criminal justice system, did not,as the amendment suggests, include the proper punishment of offenders. After all, society asks that those who have committed an offence should, as many noble Lords said during the debate, be properly punished. That is a well established concept. It has been set out in statute in the current probation aims going back to 2000 and as part of the purposes of sentencing in the Criminal Justice Act 2003.

The concept of punishment fits into a wider context. Society also expects to be protected and expects offenders to be rehabilitated in order to reduce the likelihood that they will reoffend. That is why that is also included in the aims and in the purposes of sentencing. The aims reflect what society expects the criminal justice system to achieve and it is entirely right that probation providers should have regard to them when working to deliver the sentences passed by the courts.

I also point out that the amendment is technically inaccurate. The enforcement of court orders is, as I am sure the noble Lord, Lord Ramsbotham, will understand, a function, not an aim. Indeed, the enforcement could play just as important a part in the protection of the public or in the rehabilitation of offenders as it could in the proper punishment of offenders, depending on the requirements of the order.

I am grateful for what noble Lords have said in the debate. I hope that, having heard my very simple and straightforward reply, they will think again about whether they should push the amendment to a vote. We cannot agree with it, because it runs counter to all that we seek to achieve in the Bill and in earlier legislation.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I thank the Minister for that reply. I am sorry that he thinks that something so fundamental should run counter to the Bill. In fact, that is the total opposite of its intention. I am trying neither to weaken the provision nor to strengthen it, as the noble Lord, Lord Warner, suggested; I am trying to explain the purpose of my amendment and to make it absolutely crystal clear who does what in the criminal justice system. I assure the right reverend Prelate the Bishop of Liverpool and the noble Lord, Lord Warner, that I am neither squeamish nor apprehensive about punishment, and never have been. I have, however, always been one of those who believe that punishment should be given by those who are responsible for giving it, and it should be absolutely crystal clear who those people are.

I should say to the noble Baroness, Lady Carnegy of Lour, that I based my amendment on the title of clause, which is about the provision of probation services. That phrase is reflected in two other subsections, which refer to what the Secretary of State has to do in exercising his functions in relation to any "probation provision" by making and carrying out arrangements. I think that the noble Lords, Lord Rosser and Lord Warner, were talking about the aims of courts, not about the aims of probation. That is absolutely right: the aims of courts are the sentences. That is their job, but that is not the aim of the Probation Service. I am extremely grateful to my noble friend Lady Warnock for explaining so clearly the distinction between those two and for saying that the words do matter.

I always listen with great respect to what the noble Lord, Lord Judd, says. I agree with him, as did other noble Lords, that there is precious little between implementation and enforcement. I came down in favour of enforcement here, because the word was used in our previous debate. If, as a result of what we decree this afternoon, this matter is taken away to be considered for further processing in the Bill, as Ihope, I would not object one bit if the word "implementation" were substituted.

However, the explanations of punishment that have been given do not stand up. They do not reflect the difference between the job of the courts and the job of probation. If the word "punishment" is related to the Probation Service, it does not help the service to do its work or people to understand what it does. Therefore, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

*Their Lordships divided: Contents, 77; Not-Contents, 140.

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

Aye: 77 Members of the House of Lords

No: 138 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.

Clause 3 [Power to make arrangements for the provision of probation services]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 5:18 pm, 27th June 2007

moved Amendment No. 4:

Clause 3, page 3, line 21, leave out "Secretary of State" and insert "probation boards and probation trusts"

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

My Lords, I shall also speak to the remaining amendments in the group, which are all consequential on Amendment No. 4. I am grateful to the Probation Boards' Association and the National Association of Probation Officers for their support, and I thank noble Lords who have added their names to the amendments. We return to the major bone of contention between these Benches and the Government that we were unable to resolve in Committee. We firmly believe that the power to commission probation services should be in thehands of local probation boards and trusts. My amendments seek to make that happen.

The government system puts the power at the centre, with the Secretary of State. That denies the localism that we believe should be at the heart of service delivery. In Committee the Government sought to reassure us by arguing that most services would in fact be commissioned locally by lead providers operating within a framework agreed with the regional commissioner. The noble Baroness, Lady Scotland, said there was not as much between us as I thought. I have looked very carefully at everything she said in Committee and at the speech made by the noble and learned Lord the Lord Chancellor recently at the probation conference, but the gulf between us remains.

The Government's Bill clearly puts the power to commission services into the hands of the Secretary of State alone. He may delegate that power to others, but it is his choice, his power, to exercise as and when he chooses. There is no guarantee that he would delegate that authority, when he would do so or that he would do so in an appropriate manner which meets local needs. There is no guarantee that he will use his centralised power only if it can be shown first that local probation boards or trusts have failed in their own commissioning to ensure the satisfactory provision of probation services.

All the Minister's assurances about delegation by the Secretary of State cannot disguise the simple fact that the Bill vests the power to commission services centrally, in the Secretary of State's hands. I was nearly caught out there, still thinking that this was one of the powers in the Home Office now moved to the Ministry of Justice. Let us see what powers remain at the Home Office tomorrow. Perhaps that will go too. Perhaps, like the DTI, it will go "poof" into thin air. Let us see what happens.

We have redrafted our amendments since Committee to make our intentions even clearer. My amendments would vest the power of commissioning services in the local boards and trusts, but they ensure, too, that the Secretary of State would have a backstop power of commissioning where services would not otherwise properly be provided—or, of course, he could provide the services himself. I hope that that will meet the concerns expressed earlier on Amendment No. 2 by the noble Baroness, Lady Howarth.

Our proposed new clause to require probation trusts and boards to prepare plans also contains a scrutiny and backstop power for the Secretary of State. The trusts are required to produce a plan setting out what services they consider need to bemet during the forthcoming year, who will be commissioned to provide them and at what cost. If the Secretary of State considers that the trusts will not make sufficient provision of probation services, he can modify the trusts' plan.

We believe our amendments give the right balance between the importance of local commissioning and the need to give the Secretary of State the backstop power to step in if things go wrong. They would not hinder the roll-out of contestability; they would empower local probation trusts and boards to commission services that meet local needs. We prefer to see local decision-making wherever possible. In the context of probation provision, we believe it is both possible and preferable. I beg to move.

Photo of Lord Filkin Lord Filkin Labour

My Lords, I regret delaying my noble friend on the Front Bench but this is an important amendment on important issues.

Perhaps I may start where there is substantial agreement, if not unanimity, across Front Benches and around the House. We are agreed that it is important that action is taken to reduce reoffending and better protect the public. I do not think that any of us—I hope none of us—is content with where we are; change is necessary. I think there is agreement, certainly with the main opposition Front Bench, that we need a wider diversity of supply and we need contestability in the system if we are to get better outcomes and results. I hope there is agreement that that requires innovation about how we deliver these goals. This will not be achieved by just doing more of what we are doing at present. Therefore, if there is substantial agreement, at least with the opposition Front Bench, on those elements of what the Bill needs to be about, the debate becomes one about means rather than ends: how do we get to a system thatis better at protecting the public and at reducing reoffending by better harnessing the diversity of supply and contestability and creating a culture where the existing deliverers rethink what they are doing to get better outcomes and better results?

The amendment is flawed because it will not lead to the shift of culture, thinking and role that is required to achieve these ends. It will not lead to significant use of the voluntary sector. It will not lead existing delivery bodies to realise that they have to think about how and when to use other suppliers, nor that their current processes may not be the most perfectly designed to get the required results. I say that for two reasons. First, we know it if we look at public service reform over the past 20 years. That is what happens to institutions; when they are required to make a significant shift, they usually do the minimum necessary to comply. It is as if the opposition Front Bench had said to local government in the 1970s, "We won't have compulsory competitive tendering but we will have voluntary competitive tendering. We might do something about it if we thought what you did was unsatisfactory". Nothing much would have happened, and not enough would happen in this context if we passed an amendment like this. People would do the minimum necessary to avoid intervention by the Secretary of State. That matters a lot, because it would not reduce reoffending.

Secondly, it would not be possible to have regional commissioning. I would have thought it was self-evident to most of us that there are a limited number of occasions when regional commissioning is in the interests of reducing reoffending. They will be few and far between, but there are occasions when you want to commission on a wider scale than the local, and you certainly want to be able to commission across the prison gate. The amendment is not likely to make that happen.

The fundamental argument is the one of shift of culture. We would get incrementalism. We would get, largely, the status quo, and there would be lots of legalistic arguments about when the Secretary of State was justified in intervening. We will not shift culture, and I fear that this is in part a wrecking amendment, disguised in the seductive clothing of localism. For that reason I do not find it persuasive.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, the noble Lord has put the Government's case very well: the system is not working well, so we will give it to the Secretary of State to do and then it will work. However, the National Association of Probation Officers makes the point that crime is mostly local, and people expect the solutions to come locally. They will trust a local system much more than a central one. In fact, very often the local system worksbetter; of course it does—we know the problemsat the moment—but my noble friend's group of amendments includes a fallback position for the Secretary of State. She has pointed out that, if the right thing does not happen, the Secretary of State can go into action. Give the local system a chance, then bring in the Secretary of State.

I do not want to keep referring to Scotland, but there is a basic assumption in the Scottish legislation that everything happens locally because the functions of the Probation Service are carried out by a department of local government, the social work department. There is no thought in Scotland of a central solution like this. That is much more likely to work. I see what the Government are trying to do; it is rather characteristic of them: "If we give it to the Secretary of State, who, after all, is operating on behalf of the people, everything will be all right". I do not think it will. My noble friend has made a good compromise, in a way, in her group of amendments, giving the Secretary of State a fallback position. I hope the House will support this.

Photo of Lord Warner Lord Warner Labour

My Lords, we have to understand why things are being changed. Local services have had plenty of opportunities over the years to do allthese things. There has not been a great deal to stop them undertaking some of these changes. Some loosening-up changes were undertaken by the previous Government, who made provision for probation to commission more services from outside. We have to ask why it has not happened. We also have to consider—as I considered very carefully—when the noble Baroness, Lady Anelay, thanked her supporters, that they would say that, wouldn't they? It is worth bearing in mind that some of these amendmentslook to some of us, who have been down this track in other areas, like classic public-sector protectionism. However one wraps it up, they have an underlying presumption, I suggest, in favour of public sector providers, rather than having the best person to do particular jobs.

If we could have relied on the existing arrangements for providing the most appropriate service provision for offenders, we would not need this legislation, which will enable the best available provider to be obtained for meeting local needs. In meeting those needs, it may well be necessary to commission some specialist services—a good example would be for sex offenders—over an area that is much wider than that covered by the local trust or boards. These amendments would make that extremely difficult so that, through going local, we would actually be denying offenders access to some services.

We should be clear about what this Bill represents. It reflects a good deal of—some would say profound—dissatisfaction with the current arrangements, which restrict the range of service providers required to tackle offending behaviour effectively. As in other parts of the public service, we need more contestability. The noble Baroness acknowledged the need for contestability, but her amendments would make that less likely and a wider range of service providers less likely.

To effect the changes, the Secretary of State's powers should not be fettered by these amendments. It is not a question of centralism versus localism. This is about the machinery that is more likely to effect change in circumstances about which there is a lot of dissatisfaction. It is naive to believe that, if this were left to the 42 local trusts, they would all embrace equally, firmly and enthusiastically the concept and principle of a mixed economy of providers. I am surprised that the party opposite, which has accepted contestability in other areas of public service provision, such as the NHS, seems here to be halting and inhibiting that development in criminal justice.

A lot of honeyed words have been used during the passage of this Bill about the work of the Probation Service. I support much of its work and the way that many of its staff do an excellent job in extremely difficult circumstances. I spent two years as a Home Secretary's special adviser and five years as a chairman of the Youth Justice Board. That has given me an opportunity to see up close—and not always comfortably—the culture of some parts of the Probation Service. My noble friend Lord Filkin rightly drew attention to the issue of culture. That is at the heart of this matter. There is a tendency in some parts of the Probation Service to look inwards defensively, and then turn aside from involving outsiders. Some of us have actually seen that in action. It is a sad fact of life.

I find it interesting that ACEVO supports the model in this Bill. The voluntary sector has sometimes been on the receiving end of that culture where it has got—and, in some cases, has developed—good services that will benefit offenders but has been thwarted in its attempts to make them available. That is in a culture of localism.

This is not an attack on the Probation Service, but it is a strong urging to leave the structure of the Bill as it is on commissioning if we really want to see a mixed economy of providers which will deliver the kind of services that we all acknowledge many offenders need.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs 5:30 pm, 27th June 2007

My Lords, we now see the extent to which we are debating a key issue. We heard from the noble Lord, Lord Warner, that central government are clearly far more efficient than local providers and that, since localism does not produce anything, we need clearer central control. We heard from the noble Lord, Lord Filkin, a remark which, in terms of what I understand our new Prime Minister to believe, is rather anachronistic—the seductive clothing of localism. I rather thought that our new Prime Minister believed that we needed a restoration of local innovation and diversity.

Photo of Lord Filkin Lord Filkin Labour

My Lords, I am sorry to make a habit of interrupting when I feel that the noble Lord, Lord Wallace, has misquoted me. I was saying, as a strong localist, that the localist argument is being used to defend what is at heart a substantial wrecking amendment. One must have a sophisticated ability to support localism and to recognise that one cannot,in a grown-up world, leave everything to localist decision-making, otherwise there will be problems. Any party which has been in government wouldknow that.

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

My Lords, I have followed with much interest the public service reform of the past 20 years. I was glad to hear the noble Lord, Lord Filkin, confirm that the new Labour Party has taken up a Conservative programme of public service reform, which indeed it did. I am old enough to remember when local authorities had enough autonomy to provide innovation—the West Riding County Council was one of the best experimenters and innovators at the local level. Part of the thrust of government policy through successive Governments over the past 30 years has been to remove autonomy and the power to innovate from local authorities and give it to the centre. I hope that we may be shifting away from that centralist drive to a period in which local interests and diversity are allowed. If we are to move to a wide diversity of supply—to quote, I hope accurately, the noble Lord, Lord Filkin—we need the diversity of supply which comes from partnerships with local voluntary organisations, and I stress the word "local". This is a very important amendment, and we on these Benches support it strongly.

Photo of Lord Adebowale Lord Adebowale Crossbench

My Lords, I declare an interestas chief executive of Turning Point, an organisation that provides services to many ex-offenders. I cannot support the amendments. They have a slight whiff of "if it ain't broke, don't fix it" about them, but we have agreed that the system is broken and needs fixing in some fundamental ways.

The point was made at Second Reading—and I think I made it—that it is not about localism or big government. The solution is not either/or but and/and. We cannot have a mixed economy unless that balance is correct. I do not accept that localism will produce the intended consequences that have been set out in the amendment. My organisation, along with many others in the voluntary and third sector, would be concerned if the amendment were to be accepted, as the noble Lord, Lord Warner, has pointed out.

The amendments include a presumption infavour of the public sector which, coming from the Conservative Benches, surprises me. Probation boards and trusts would have no incentive to approach other providers, which is a critical part of the shift—the changing culture—that is required to get the mixed economy necessary to change a system which needs some support.

There is a lack of clarity about the circumstances that are referred to when sufficient provision bythe probation services is not being made. In what circumstances would it be appropriate for the Secretary of State to intervene? I am also concerned that it would be difficult for very local probation boards or trusts to think strategically. This point has already been made but there are examples that I may highlight later about innovative specialist services, particularly those provided by the third sector, which often go beyond what the noble Lord, Lord Wallace, referred to as local. We come back to the point about referring to the third and voluntary sector as though it exists only locally. It can exist locally and nationally, as my organisation can testify. These specialist services often need to be delivered on a more regional basis and we need to allow for that. They could be delivered on a regional, or in some cases, national level.

In this debate, there has often been a tendency to talk as if what matters is the sector that an organisation comes from. People have enthused about the private sector and public sector ethos and mentioned the third sector and the voluntary sector in terms of our ability to engage with service users. While there may be some evidence to support some of the characteristics present in those sectors, such an approach is far too simplistic. Each sector is very diverse with organisations demonstrating good and bad practice. Commissioners need to have the strength and freedom to commission services from the right provider for the job, no matter what sector they come from. Any presumption in favour of one sector limits that freedom, which would therefore mean that the best service for the offender and the public is not necessarily being commissioned. Public services are just that: services for the public.

What matters is getting the best service to reduce reoffending not which sector provides it. Often, the right approach is to work in partnership across the sectors to make the most of all the talents. In case there is any doubt about where I stand on this, I want to place on record my respect for the excellent work undertaken by probation officers who work for the Probation Service, many of whom already work in partnership with my own staff at Turning Point and other organisations throughout the third and voluntary sector providing substance misuse services as part of community sentences in places such as Somerset and Sheffield.

I understand that some concerns have been raised about the ability of the third sector and voluntary sector to deliver what is required of it. I want to finish with some examples so that we can move on from the issue of the third sector and voluntary sector as part of a mixed economy. They show what is already being achieved by my own organisation and others from the voluntary sector that are working in partnership with probation services throughout the country to deliver substance misuse treatment as part of sentences.

My own organisation is working in partnership with Serco and the Rainer Foundation to deliver employment support for offenders in the south-east. The charity Nacro is providing basic skills training alongside Sussex Probation. The organisation Pecan's Workout project is also providing an employment service for ex-offenders throughout the country where innovative commissioners have worked with the third sector and voluntary organisations that have stepped up to the plate and which recognise the need to reduce recidivism and turn around a system that is not working for the public.

Unfortunately, the way in which services are currently structured means that the third sector has often played a rather limited role in the provision of probation services. The amendments would retain those limits rather than allowing commissioners the freedom to get the best service for the offender and the community. The third sector is not asking for special treatment. Third sector organisations should have to prove alongside other organisations that they can do the job as should statutory and independent providers. Nevertheless, to get the best and most innovative services, commissioners need to look at every sector, and all providers should have the opportunity to demonstrate what they can do to improve the system.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I have listened with a certain amount of incredulity to what has been said because every single person who has spoken has spoken in support of what the amendments are trying to achieve. I am also confused, and always have been, about the criminal justice system in this country. Nobody knows the costs of imprisonment or probation. Therefore, we are all talking in riddles, because we do not know what we are talking about.

What do I mean by that? We have said time and again what ought to be done with offenders, but nobody has actually costed that. Therefore, if you do not know how much it will cost to provide what you say you want to provide, it is no good deciding who will do what because you do not know whether you will have the resources to do it.

I am sorry to go back to my previous Whitehall experience in the Ministry of Defence, but every year when there was a White Paper or a list of tasks, they were costed. We passed the costs upwards to the Treasury. Usually, the Treasury did not give enough to provide what was needed to match those tasks. You went through what was called a basket weaving exercise where you looked at all these tasks and at what was desirable, essential or nice to have to do them. You then presented Ministers with a series of options, explaining that because this was the only resource that you had, these were the options. You asked, "Which ones, Oh Minister, are you going to take and which are you going to give up?".

When I went into the Home Office I was very surprised to find how many prisoners were idle because there simply were not programmes to do what was required to prevent them reoffending. Nobody knew how much it would cost to provide those programmes. They did not know how muchit would cost to provide classrooms, education instructors or whatever. So when they said that prison cost X and so much per year, what they meant was what it cost per prisoner out of what they had been given. But they did not calculate the difference between what they had and what they needed. Exactly the same is true of probation. You have only to ask the chief officers of probation about this. In Committee, I described this as like trying to land a jumbo on a postage stamp. They have now been told that their budgets will be frozen for three years. So it is no good listing all the things that we want them to do with the public sector, the private sector and the voluntary sector, if they do not have enough money to buy what is needed. That is an academic argument.

I like two things about the amendment of the noble Baroness, Lady Anelay. First, she makes provision for that sort of basket weaving exercise to take place in the form of a plan in which the Secretary of State, and everyone else who needs to be, is involved. It includes working out the cost of what is needed. That will have to go to the Treasury. If the Treasury does not give you the money, there is no point in planning to do something when you cannot get the resources. Secondly, in the event of failure, the noble Baroness's amendment proposes a new clause to make certain that there is a machinery to do something about it.

Everything else that we are discussing has nothing to do with whether it is public, private or voluntary sector provision: it is all about the reality of enabling probation staff to do the task—the rehabilitation of offenders—which this Bill is all about. Therefore, I could not support these amendments more.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs 5:45 pm, 27th June 2007

My Lords, we, too, support these amendments, as we supported this important principle of local commissioning in Committee. The Minister argued then that although she did not see a great deal of disagreement between the noble Baroness, Lady Anelay, and the Government, she found that the noble Baroness's amendments lacked clarity and called them a recipe for confusion.

These new amendments seem to me to be a model of clarity, but they also reaffirm the crucial distinction in the argument between the Government's position, which is that the primary accountability and statutory duty for commissioning is upwards, in the hands of the Secretary of State, and the position in these amendments—that the primary power should lie with local boards or trusts, that they should prepare plans for the year, and that needs can best be identified and met locally.

The amendments also give the Secretary of State a backstop power to commission services should a trust fail to do so or where there is a gap. But successful commissioning—commercial or in the public sector—is always best close to the business. However, to refer to what the noble Lord, Lord Adebowale, said, local commissioning does not mean that there should be any restriction on which sector these services can be commissioned from. It is not exclusive, because the power lies locally, and the noble Lord described that it is already the case. The Government argue that because historically boards have not contracted out more than 3 per cent or so to other providers—although the figure was higher before 2001—the commissioning responsibility and power should be transferred to the Secretary of State, presumably via the ROMS. The Minister has said that there can be national, regional and local commissioning, but the issue is where the commissioning authority and power lie.

While we know that reoffending rates are a blunt measurement and that often the rate and type of reoffending are a more realistic measurement of success when one is looking at rehabilitation, we also know that the Probation Service has been meetingall its targets, including those blunt ones, in an impressive way. We pointed that out in Committee. We are all agreed that to commission a wider range of providers from the voluntary sector and the private sector alike is highly desirable. But if we assume that best value in terms of quality will continue to be the guiding principle in reducing reoffending, we will not see a great difference, as the noble Lord, Lord Ramsbotham, has pointed out, in results from the commissioning process unless and until significantly more funds are made available so that there will be a real widening of the pool of available interventions.

We understand that there is a place for central and regional commissioning for particular services. The service of the noble Baroness, Lady Howarth, isa good case in point. However, the retention of commissioning power locally—which is where,after all, the overwhelming proportion of offending originates—not only links local needs for offender management with available provision but, crucially, creates and develops local confidence in that provision. That lies at the heart of greater community sentencing, which in turn is partly a solution to prison overcrowding. Above all, end-to-end offender management must be coherent, clear, enforceable and responsive to local needs. That is precisely what local boards represent. It is also what a recent YouGov poll shows that the public want; we on these Benches want it as well. We support the amendment.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I would deeply wish to be able to support the amendment, but in fact I oppose it, for quite different reasons from some given in the debate. I am utterly committed to local services where local services are appropriate. I understand the way in which the wording of the amendment has been put—to try to ensure that the Secretary of State can intervene when other services need a more centralised service. It is for very different reasons from those that I oppose the amendment; I think that it is all about change. It is about ensuring that the services we have on the ground are much more effective.

The noble Baroness said that the Probation Service had been meeting its targets. I have some questions about the targets that are met, when we all know that reoffending is going up. What are the targets? Have the Government set the right targets? That is the challenge that I would put if the targets are being met and reoffending is increasing. Something significantly different needs to happen in the behaviour of the services on the ground. The argument for the mixed economy has been made, and the Liberal Democrat and Conservative Benches have said that that is not an issue in this debate; but I believe that it is. As the noble Lord, Lord Warner, pointed out, there has always been the capacity for this change, and it has not taken place.

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

My Lords, I am very grateful to the noble Baroness for giving way. While she is right that for reoffending from prisonthe rates have been going up, although slightly levelling out, they are going down where community sentencing occurs. It is very important to make the distinction between reoffending from prison and reoffending from community sentences.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, the noble Baroness makes a good point that community sentences are much more effective than prison sentences—one with which I join her wholeheartedly. I want to go back to the issue of the delivery of services at a local level. I, too, speak from experience of having to work to change the culture in two large organisations. One was the Meat Hygiene Service and its veterinary provision and the other is the Children and Family Court Advisory and Support Service. One of the big issues about change is compliance, and learning good experience and good practice from other regions. If you work only from the local level, you lose those things.

When I went into CAFCASS, there was some good practice around the country. Compliance with what was needed to change the system to ensure that more children could be dealt with was nil. Compliance needs to be clear across the country, because that is how you can make better use of resources. I would like to argue for more resources for all the services that I am involved in—I do—but I know that resources are finite and the only way to make better use of them is by changing the way that people work. That is why I hope that we will be able to move forward in a better way that changes services, gives greater direction when those services are not being changed, allows successful probation trusts to be innovative, and allows them to be able to work from probation trust to probation trust with the help of the centre to develop regional services of the kind that I know cannot be delivered locally. Then we will have a service to be proud of.

I just have to say, because I cannot resist it, that on a historic day like today, it is fascinating to hear the Conservatives arguing for the retention of what appears to be the status quo in relation to the state—

Noble Lords:

No!

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I am saying only that it sounds like that. Meanwhile, the Labour Benches are arguing for a mixed economy. That may not be how it is, but it does sound interesting.

Photo of Lord Rosser Lord Rosser Labour

My Lords, I also cannot support the amendment. I will be brief, because much has already been said in opposition to the amendments in this group. I base my view on what happens at present and I do not share the view that probation boards and probation trusts will, in fact, involve the voluntary sector and others in developing and expanding services. Their approach to date shows that there does not seem to be too much enthusiasm for doing that. If we were to pass an amendment that in reality gives them continuing power to make those decisions, we will not make progress. It is interesting that, as I understand it, the voluntary sector, the CBI and the Local Government Association support the measures in this Bill.

I appreciate what has been said about a backstop power as far as the Secretary of State is concerned, but it is very vague. The amendment does not really say under what precise circumstances or against what criteria it might be used. Frankly, one can see that if this power were to be introduced there would simply be endless arguments as to whether the situation had been reached where the Secretary of State was justified under that proposal to intervene.

I am afraid that I share the view expressed just now that the amendment is a call for the status quo. That is what it is in reality—it is leaving decision-making on commissioning greater involvement of the voluntary sector with those who have not done it until now, and there is no indication that their views might change. The Bill and the changes being made are about a change in culture and about indicating that thereis an alternative—there are alternative providers and providers who may be able to expand, develop and improve services. If you want that kind of increased involvement and development, you do not handover responsibility for achieving it to boards which, the figures and records suggest, have not been particularly good at doing so until now.

This cannot be a debate about what might be in the interests of a probation board's association. Surely we are talking about what is in the interests of addressing reoffending, and that must be to involve as many people as possible in the voluntary sector and elsewhere who can contribute, develop and assist with programmes in that regard.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative 6:00 pm, 27th June 2007

My Lords, has not the threat of this Bill caused a rapid increase, from 2 to10 per cent, in the farming out of services to voluntary organisations, which had been dropping very much over the years? Will not the threat of Amendment No. 6 have an even greater effect?

Photo of Lord Rosser Lord Rosser Labour

My Lords, I am not sure whether the figure is 10 per cent but my noble friend may be able to comment on that. However, the noble Baroness's point is very important if, as is her view—and she may well be right—the threat of this Bill is producing a change. The Bill provides that the commissioning will be done not by the probation boards or probation trusts but by commissioners. However, if you remove the role of the commissioners and give it back to the probation boards and probation trusts, on the noble Baroness's own argument, you remove the incentive which she is now applauding.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, in this interesting debate a number of noble Lords have spoken very highly of the Probation Service and probation officers generally. Practically everyone who has talked about probation has mentioned how committed and good probation officers are, so it seems necessary to listen to what they tell us.

I understand that probation officers believe that the case for local commissioning is overwhelming. If commissioning were to occur at regional or national level, it would be remote from local agencies and local communities. They say that there is a real risk that local voluntary sector groups would lose out in the commissioning process to large national organisations. Indeed, the Government's model for the voluntary sector has been strongly criticised by the Charity Commission on the ground that charities are being put at risk by a growing dependency on poorly funded contracts to deliver public services. The probation officers' organisation therefore supports the amendment because it believes that, if enacted, it would ensure that probation boards and trusts, which have detailed knowledge of local areas, would be responsiblefor commissioning.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I do not think that anyone in your Lordships' House does not support the voluntary sector. A whole range of your Lordships have worked with such organisations in one capacity or another. Support for localism—witha lot of the work being carried out at a local level—certainly does not mean that there is not total confidence in national and regional organisations playing their part. There is concern that the smaller voluntary organisations will lose out in the process because of the greater bargaining power, staffing and so on of the larger organisations. But we are also talking about ownership of what goes on in a local area—the ownership of the people who live thereand the contributions that they can make to the rehabilitation of offenders.

I could not agree more with what the noble Baroness, Lady Turner, said about the approach of the Probation Service. It is now much more in favour of seeing commissioning happening at a local level where appropriate, and of course it should be available at national and regional levels, if appropriate, for certain specialist services. If the Probation Service has been encouraged in that view by the introduction of the Bill, that is good. This is very much a local issue. There may be a need for national or regional areas of support as well but we must encourage local areas, with appropriate resources being put in their direction, to take ownership in the genuine rehabilitation of offenders. I certainly support the amendment.

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

My Lords, yet again, we have had a fascinating debate. I say straightaway that I certainly do not agree with the noble Lord, Lord Ramsbotham, that the amendment of the noble Baroness, Lady Anelay, is a basket amendment. That would be the wrong way to describe what she is trying to do.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, with respect, I did not describe it as a basket amendment. I said that what was in it enabled that process to happen but I did not use that phrase.

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

My Lords, I do not know whether that makes the situation better or worse. Basket-weaving was the way in which it was dealt with. That conjures up certain connotations which I am sure were not intended, and I expressly disavow any such interpretation.

This has been a very important debate on the fundamental issue concerning the proposals inPart 1—that is, where the responsibility for commissioning probation services should lie—and it follows on from debates that we had in Committee.

We have heard some extraordinarily powerful speeches. A number of them came from my noble friends Lord Filkin, Lord Warner and Lord Rosser, the noble Lord, Lord Adebowale, and the noble Baroness, Lady Howarth. But those who are concerned also made fine points. The noble Baroness, Lady Carnegy of Lour, raised some interesting points, as did the noble Lord, Lord Wallace, the noble Baroness, Lady Linklater, and my noble friend Lady Turner, together with the contribution from the noble Baroness,Lady Howe.

Perhaps I may get us to the essential position, which was touched on by the noble Lord, Lord Adebowale. These provisions are about not only the service providers but the people who use the services, both victims and offenders. I listened very carefully and was interested in how many people spoke of the latter, as opposed to those who provide the service. We need to concentrate on the victims and offenders who are in need and, as my noble friend Lord Warner said, we need to look at how we can shape things to meet their needs most appropriately.

I recognise that the noble Baroness, Lady Anelay, has reviewed the amendments that she tabled earlier and that she has presented a more streamlined set for us to consider now. I also recognise that some of the technical deficiencies have been tidied up. However, some significant ones remain—not least the continued references to both trusts and boards, which simply do not work alongside one another under the arrangements in Part 1. But I should like to focus on the policy.

What is the set of amendments before us designed to achieve? As I understand it, the noble Baroness supports the principle of commissioning and contestability. Her amendments do not, therefore, seek to challenge this principle but to make the probation trust the lead commissioner of probation services. However, that is exactly what the Government's proposals do. We have made it clear that we do not intend regional commissioners acting on behalf of the Secretary of State to hold myriad contracts directly with a range of providers. Instead, regional commissioners will have contracts with lead providers at the area level. Those lead providers will in practice be a probation trust at the outset. Noble Lords will recall that we have committed to contracting only with the public sector for offender management for three years, and that court work will remain with the public sector indefinitely and could be removed only by a positive endorsement by both Houses. I cannot emphasise enough how much I agree with the noble Lord, Lord Adebowale, when he says that this is not "and/or" but should be "and/and". It is a false premise to believe that we have to choose between local, regional and national. On occasion, national will be necessary because of the specialised services; on occasion, regional will be the most efficacious because of the need to build capacity; but on the majority of occasions, local will be absolutely essential because it will respond more appropriately to identified need.

Lead providers will be responsible for commissioning services locally, and the Secretary of State will delegate many of the functions for co-operating with other agencies to them. For example, in relation to local area agreements it will be the lead provider—the local provider—to whom the Secretary of State will delegate the task of negotiating and delivering local improvement targets. The pre-eminent position of local commissioning is clear.

Why then do the Government object to the amendments tabled by the noble Baroness, Lady Anelay? The truth is that these amendments do not place local commissioning in a wider context or provide a clear framework of accountability within which it can operate. Though the noble Baroness supports the greater involvement of other providers, her amendments provide no levers to ensure that this happens. It is important to look at the question raised by my noble friend Lord Rosser in answer to the noble Baroness, Lady Carnegy. Why have they not been more involved before? That was echoed by the noble Lord, Lord Warner. Why are they more involved now? How do we sustain that engagement? The levers are therefore incredibly important.

The noble Baroness's amendments rely almost entirely on probation trusts deciding for themselves which services to deliver direct and which to sub-contract—an arrangement that has led to 96 per cent of services being delivered in-house. The amendment is entirely unclear on the basis for the Secretary of State's intervention. He may commission services from others or deliver them himself, "If it appears to" him,

"that sufficient provision ... is not being, or will not be, made", by probation trusts or boards. I ask the question that was asked by the noble Lord, Lord Adebowale: on what basis and when is he to make this decision, and where does the ultimate statutory duty lie? What are the lines of accountability between the trust and the Secretary of State? What levers does the Secretaryof State have to raise performance of the trustaside from the blunt instrument of commissioning elsewhere? All this is unclear.

The Government's approach, I respectfully suggest, is coherent in this regard. It places the statutory duty with the Secretary of State, who then commissions the majority of services through a lead provider—a lead local provider. It provides, through the contracting process, levers to encourage trusts to involve other partners and to raise performance across the board. It gives flexibility for the Secretary of State to commission some services on a regional basis or across the prison and probation divide. He may do that not only in response to poor performance by the local trust, which is the implied ground for intervention in the opposition amendment, but where consultation and a needs assessment indicate that this is appropriate and merited. The noble Baroness, Lady Howarth, reminded us in Committee that local commissioning is not always best, especially where specialist services are concerned. I was not surprised that she reiterated that today, as it is an important point.

Where there is poor performance, the Government's approach enables the Secretary of State, in due course, to look for other providers in the public, private or voluntary sectors who are better able to deliver. Before I conclude, I draw to the attention of the House the widespread support for our proposals—support which has been alluded to in part already. The voluntary sector, as your Lordships have heard, supports our proposals. ACEVO—the Association of Chief Executives of Voluntary Organisations—is the professional body for the third sector's chief executives and has more than 2,000 members. It has issued briefing to your Lordships for Report, which I have had the privilege to look at, and which I am sure noble Lords in this debate have seen too. I shall read it out for those who may not yet have had that advantage. It says:

"We do not believe that the amendments discussed during the Committee stage of the Bill, allowing probation trusts to retain commissioning responsibility, would provide the catalyst needed to increase the role of the third sector. Without structural change, there is no reason to believe that the current small proportion of services which are contracted to the third sector should grow".

I need to reply to my noble friend Lady Turner because she raised a question on whether allowing more statutory contracting to take place from the public sector would somehow dilute or diminishthe position. ACEVO does not believe that a great proportion of an organisation's income coming from statutory contracts compromises independence orwill have that effect. The private sector supports our proposals. I must say that it is perplexing to find noble Lords opposite not supporting business, but there we are. Things change in this world. The CBI has also issued briefing for Report, which states:

"The Bill's proposals to introduce diversity of provision will capitalise on the best each sector and each provider has to offer. This should deliver a more joined-up approach, giving hard working probation staff more support in delivering the best rehabilitation services possible".

The LGA supports these proposals. In its briefing produced for Second Reading, it set out how we had agreed to meet its concerns about councillors on probation trusts and local area agreements. It said:

"If the Bill is amended in this way"— the way in which we proposed to amend the Bill, and subsequently amended it—

"the Local Government Association believes that it would address our concerns about local accountability. We believe that these amendments would complement the positive proposals contained within the Local Government and Public Involvement in Health Bill".

While I acknowledge that there are still concerns, the public sector Probation Service is embracing the change too. We invited 35 of the existing 42 probation boards to express an interest in forming part of the first wave of trusts in April 2008. Only the seven probation boards classified as poor performers were not eligible to apply. Out of those 35 boards, nearly two-thirds expressed an interest in becoming trustsin April. That is an impressive indicator of the commitment to change in the service. Many of the very best boards are already working in the way we propose. It is not anathema to or in any way in contradiction of their ethos.

The bottom line is that the amendments tabled by the noble Baroness, Lady Anelay, do not deliver what she wants and are instead, I regret to say, a recipe for confusion—something that the noble Lord, Lord Ramsbotham, said, but for different reasons. I submit that the Bill delivers what the House wants—local commissioning but with genuine opportunity for increasing the involvement of other providers, set within a clear framework of accountability. That is why I cannot accept these amendments as a way forward. I acknowledge that, looking at what the Government proposed 18 months ago and the paper to which the noble Baroness referred in earlier discussions, these proposals are very different. The reason for that is because we listened and worked with local government, the public and private sectors, and the not-for-profit third sector. Those three sectors are now conjoined in the belief that what the Government have arranged and settled with them is the best way forward. I invite the noble Baroness to withdraw her amendment and to agree with us that we now have an arrangement which will work.

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

My Lords, we have had an extensive debate. Of course, it is tempting to respond to each and every person, but that would be wrong. The arguments put forward today were covered at great length in Committee and it is the nature of Report that one does not return to them. I appreciate that few of those who have spoken today were with us in Committee, but I am sure that they will have read Hansard avidly and seen the rebuttals that took place on that occasion.

The amendments in my name allow for national and regional commissioning by the Secretary of State where it is appropriate for that to happen. They enable contestability to be rolled out in a way that we believe is satisfactory. Throughout Committee, noble Lords across the Committee expressed their concern about how the Government were trying to roll out contestability. We do not feel that the Government have made an effective case for the way in which they wish to roll it out.

The Government have maintained throughoutthat contestability is only safe in the hands of the Secretary of State. No, it is not. There lies the difference between us. These amendments deliver what we on these Benches want. We want local people to have the power to commission probation services that will serve the local needs of local people well. They have a clear objective: trust people. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 173; Not-Contents, 131.

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

Aye: 171 Members of the House of Lords

No: 129 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 Lord Judd Lord Judd Labour 6:34 pm, 27th June 2007

moved Amendment No. 5:

Clause 3, page 3, line 21, after "arrangements" insert "for co-operation"

Photo of Lord Judd Lord Judd Labour

My Lords, in the United Nations and other international institutions there is often a provision for an explanation of vote. I have been anxious to have an opportunity—this relates directly to the amendment—to explain why I supported the Government on Amendment No. 2. I supported them because I was convinced that the dynamic is there for co-operation and because my noble friend was extremely persuasive in arguing that the whole principle of co-operation and partnership is central to everything the Bill is about.

I suppose that if I had any degree of anxiety, it would be—one that I have expressed before—how far that genuine intent of Ministers is institutionally shared to the full everywhere that it should be shared. I say to my noble friend that the purpose of my amendment is to give substance to what she argued so well. If the whole cause of co-operation and partnership is central to the Bill and everything it is about, it seems a bit peculiar that when it comes to the making of contracts and agreements we just talk about provision.

We need to support my noble friend in ensuring that the words are in the Bill to make it explicitly clear what these agreements and partnerships are about. It seems not altogether impossible that as time goes by—and this tends to happen in life—bureaucracy reasserts itself. There will be those who see the relationship with, for example, the voluntary sector, as the sub-contracting arrangement; that it isabout encouraging voluntary organisations to gear themselves to be effective, efficient and more economic providers of service than the Government are able to be. We have heard both in Committee and this afternoon that that is not the intention of the Government; the intention of the Government is to engage these people.

I have some difficulties with the phrase "third sector". I did not ever feel when I was director of Oxfam that I was director of part of the "third sector, I believed that I was director of Oxfam. That is something very different; and I will obviously not go into it now. We need to be very clear, and fair to everybody, that these contracts and agreements are about what the Minister has emphatically assured us is her intention, the purpose of the Government and central to the Bill. From that standpoint, I hope that the Government will at least feel able to take this point seriously and see how it might be met. I beg to move.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I had the great privilege of adding my name to the amendment tabled by the noble Lord, Lord Judd, and to support him, which I am always happy to do. He never leaves one a great deal to say, but I shall make just one or two small points.

Listening to our debates today, it seems to me that two visions of the Bill are running at the same time. I suppose that one could say that it is about A or B, and then we would all be happy. The first vision is about co-operation and partnership. We have heard a great deal about that from the Government Front Bench, from the noble Baroness and the noble Lord, which is supported by everyone involved in these discussions. That is obviously the only way to achieve what we all want: the rehabilitation of offenders. It is hard to see how that can be done without co-operation and partnership.

Then there is another vision of the Bill, which is probably in the forefront of the minds of the noble Lords, Lord Filkin and Lord Warner, who have spoken a lot today, which is that the Bill will introduce competition and contestability, which is in their view the basic way to get a good outcome.

I am not sure that those two approaches are compatible. Presumably, one will win out over the other. On that basis, I support the noble Lord, Lord Judd, because he suggests that version 1, or vision 1, should win out. I very much agree, because it seems to me the only way in which we shall achieve the objective of rehabilitating offenders and having a safer society. I am very happy to have added my name to the amendment and to support it.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I was not going to speak on this amendment, because I did not think that there was anything contentious in it until I heard my noble friend's speech. In my vision, these things work together. It is one vision: the vision of a service where the best wins out for those for whom the service is there—as the noble Baroness said, for those to whom it is delivered, those who need to enjoy a better life and not go back to prison. I think that those two things can go hand-in-hand.

I am sure that Members on the Conservative Benches—I am careful not to say the Benches opposite, even though they sit opposite, because I am a Cross-Bencher; it is a difficult language—accept that competition often brings out the best. It can bring out the worst, if it is competition for the cheapest. We have been assured by the Government that they are not looking for the cheapest and some of us will be holding them to all that they have said about quality services. I hope that those two things can go hand-in-hand because that is what co-operation and work in the service is about.

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

My Lords, there may be some differences among us over how commissioning will work—I was reflecting on that point during our previous debate. I disagree with the noble Baroness, Lady Stern, in that I think that there is a good deal of crossover in those visions. I do not see them as being in contradistinction to each other or in conflict. There is certainly a shared commitment to ensure the best possible outcome—I do not mean that in straight financial terms but in terms of what we are trying to achieve, which is to reduce reoffending. So I take issue with the noble Baroness on that.

I certainly do not take issue with the point that the noble Lord, Lord Judd, is trying to make in this amendment and an earlier one, when we discussed the need for co-operation. It is a point which we debated at some length in Committee. The noble Lord then proposed that we should extend the definition of "contractual arrangements" to include the concept of negotiated partnerships. The amendment suggests instead that the contractual arrangements are made "for co-operation" with any other person for the making of probation provision.

Understandably, the noble Lord asked us to go away to think of some more imaginative wording for this subsection. Perhaps we have not risen to the thesaurus challenge, and I will have to disappoint him. I say that with some sadness because I know that he feels that the term "contractual arrangements" does not reflect the holistic and co-operative approach that is necessary for the successful management of offenders..

Those are important points and I thank the noble Lord for making them again in his customary courteous, effective and forceful way. The reason why we have to draw a line and not agree with him is this. The legislation needs to be as clear and precise as we can possibly make it. The provision in Clause 3(2) achieves just that, setting out very clearly that the Secretary of State may make contractual or other arrangements with any other person for the making of the probation provision. The problem with adding a concept like "co-operation" is that it adds ambiguity, and, as we know, ambiguity does not make for good legislation.

What I can say—I hope that this will reassure the noble Lord; it certainly should—is that we will reflect the spirit of his amendment and what he wants to achieve in the guidance for implementing the Bill. It is more properly located there, because the guidance is about the feel, the quality, the material way in which the legislation will be implemented. It will also describe better, in more sensitive language, how we contract with providers. That is a better way to achieve his goal, and is how the relationship with providers will be established and developed.

Because we are in a contracting arrangement does not mean that there will not be co-operation. There will have to be co-operation; it is essential. That means that we need co-operative forms of working. All those things can be the subject of contractual description, and so on, and that is where the guidance will aid and assist us.

I hope that the noble Lord will accept my assurance that we understand what he is trying to achieve. We certainly want to reflect the spirit of what he proposes but for good reasons of ensuring that we have the right phraseology in legislation, we cannot support the amendment. I am grateful to the noble Lord for having raised it and for making his customary contribution as he has.

Photo of Baroness Stern Baroness Stern Crossbench 6:45 pm, 27th June 2007

My Lords, before the noble Lord sits down, perhaps I may ask a question as he has a lot of experience in this area. If there is one very juicy contract to let and five little ones, and six organisations in an area, how do you make the six organisations work together and co-operate when they are all fighting for the one juicy contract and do not want the five little ones?

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

My Lords, the noble Baroness is right: I have some experience in this area. I should have thought that where there is a lot of contractual talent out there, the process will enable and facilitate working together, perhaps by the bringing together of a joint bid where that is appropriate, so that those services can be linked up and provided in one contract, rather than having small groups fighting each other for the contract. That is one simple way in which that could work.

That will enable us to draw on the best that is there and create something anew and afresh that addresses the issue that the noble Lord, Lord Judd, was concerned about: to bring imagination and innovation into service provision, using the third sector—to use the jargon.

Photo of Lord Judd Lord Judd Labour

My Lords, I thank those who have spoken. In particular, may I say how much I value the support of the noble Baroness, Lady Stern? She brings to these deliberations a great deal of experience, not only in policy and research in these matters but in having led so outstandingly effectively one of the organisations working right in the middle of this whole sphere; I refer of course to Nacro. I was privileged to be on her board for a while, and I must say that it was an extremely stimulating and exciting experience. We would do well to listen to her.

I thank the Minister for his characteristically considerate response. I remain anxious that, if the whole Bill is about co-operation, it does not specify in precise language what the contracts and agreements with particular organisations are about. They are about co-operating with government, not only about co-operating with each other. Co-operating with government means that they are not only service deliverers. Of course we want the greatest possible cost-effectiveness, but co-operation is also about the development of policy and listening to organisations when contracts are being made and saying to them, "Now look, this is the objective. We are considering you as an organisation with which we would like to co-operate because of your hands-on experience and your policy experience, and because we value your input". Simply using this cold language about a contract or an agreement to provide a service does not underline all that.

My noble friend Lady Scotland was passionately emphatic that she wanted to see agreement and partnership, but this is still a missed opportunity. However, I have noted what my noble friend Lord Bassam said, and I very often subscribe to the view that half a loaf is better than none. I heard what he said about guidelines. I hope that those guidelines will be drawn up in consultation with agencies and voluntary organisations that have experience. On the basis that he has given an undertaking that this concern will be reflected clearly in the guidelines, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, I must inform the House that, in the second Division today, 79 noble Lords voted Content, not 77 as announced. Nevertheless, I suspect that the Not-Contents still have it.

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

moved Amendments Nos. 6 and 7:

Clause 3, page 3, line 36, leave out subsection (4) and insert—

"(4) If it appears to the Secretary of State that sufficient provision of probation services is not being, or will not be, made in accordance with the arrangements under subsection (2) he shall—

(a) make contractual or other arrangements with any other person for the making of the probation provision; or(b) make the probation provision himself."

Clause 3, page 3, line 39, leave out from beginning to ", he" in line 40 and insert "Where the Secretary of State makes probation provision himself in accordance with subsection (4)(b)"

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

My Lords, the amendments are consequential on Amendment No. 4. I beg to move.

On Question, amendments agreed to.

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

moved AmendmentNo. 8:

After Clause 3, insert the following new Clause—

"Model contracts

(1) The Secretary of State may produce model contracts for the purposes of seeking tenders for and agreeing contractual arrangements under section 3(2) above.

(2) If the Secretary of State exercises his power under subsection (1) he shall produce different model contracts for private and voluntary sector providers.

(3) A model contract may be amended or withdrawn at any time other than during the course of tendering.

(4) There shall be published in the London Gazette

(a) a copy of any model contract produced under subsection (1),(b) a copy of any model contract amended under subsection (3),(c) a notice of the withdrawal of any model contract."

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

My Lords, we tabled Amendment No. 8 because representations had been made to us that a number of non-governmental organisations find overwhelming the vast and complex forms that accompany the bidding process, and that this is a barrier to the sort of mixed economy that we would like. The noble Baroness, Lady Turner, talked about two visions for the Bill. I think that there are two visions for the public service. One, which I have heard from a number of people on the new Labour Benches, is for an American-style process of contracting out, but without the great benefits to the United States of its very sharp decentralisation to states and local authorities. England is the most centralised country in the democratic world. That is partly why we want structural change; so that we can move away from that.

We have a different vision, which is based very much on the Nordic model of a mixed economy. I wish that we had more evidence-based studies of how well that model operates. It operates very locally and very effectively, and I note that 60 to 70 per cent of the population votes in local elections in Norway. There are no obstacles to structural change there, and no centralised governments having to impose on Conservative local authorities.

Nor do we share the concept of a monolithic third sector, co-ordinated by the director-general of the third sector and the Cabinet Office, which means that only very well funded large-scale non-governmental organisations can manage the complex biddingand negotiation process. We therefore wanted to emphasise that, if one has an effective mixed economy, we must treat the private sector—the for-profit sector—and the voluntary sector rather differently. Through the amendment, we want to tease from the Government how they will handle that.

I thank the noble Baroness, Lady Scotland, for her letter on this point. We received it just as the debate was starting, so we have not yet had the chance fully to absorb it. However, I note that, under the heading "Contracts", it says:

"This is still a draft list ... We are consulting at the moment ... Draft contracts have been shared with Probation Boards via the Probation Boards' Association".

It would therefore be appropriate at this stage for us not to press the amendment, but perhaps to return to it at Third Reading. However, we ask the Government to recognise very clearly that if we are to have the sort of mixed economy that we on these Benches want, retaining the autonomy and diversity of the not-for-profit sector—and, indeed, helping that sector to develop rather than moving towards the sort of private sector national provision which the noble Lords, Lord Warner and Lord Filkin, seem to prefer—we need to know rather more about the contracting process and how we will handle these different not-for-profit and for-profit providers. I beg to move.

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

My Lords, I have a good deal of sympathy for the amendment's objective. I am grateful to the noble Lord, Lord Wallace, for indicating already that he does not intend to press it to a vote at this stage, and that there is time for reflection. He is right that this is an important issue. I tried to explore it in part in Committee on 5 June—at col. 1100 of the Official Report—when I spoke to my Amendment No. 82. I wanted the Government to put clearly on the record how they would expect contracts with charities to be drawn up, and to say whether the same type of contractual conditions would be applied to both private companies and not-for-profit organisations. In response, the Minister confirmed that the Government would be able to apply penalties to third sector organisations if they failed to meet their contractual obligations. He implied that contracts would be basically the same for both private companies and not-for-profit organisations. Noble Lords expressed their concerns that treating private companies and not-for-profit organisations the same could have significant disadvantages for the third sector, both in the bidding process and later in the delivery of services.

I returned to the issue on the last day in Committee, on 12 June, when we debated the commencement amendment of the noble Lord, Lord Ramsbotham. I asked why the Government had not yet put draft model contracts before the House and whether they would do so before Report. We heard nothing more until today, the first day on Report, when the Minister's office delivered to us on these Benches and the House what appears to be a very full series of documents, in the region of 25 pages, on service specifications, drafts for consultation and service level agreements. I appreciate that there may be very useful and interesting information here, but it will not take anyone by surprise when I say that, whereas the noble Lord, Lord Wallace of Saltaire, says that he has not looked at "too much" of it, I have looked at virtually none of it because of the other amendments to which I have been speaking.

It is important that we resolve the issue of how not-for-profit organisations are likely to be treated. The process of awarding contracts must be carried out in such a way that it does not put the third sector at a disadvantage and does follow the principles of best value in the commissioning and delivery of services. Both of those principles work for the public good and the good of the not-for-profit sector.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs 7:00 pm, 27th June 2007

My Lords, will the Minister give an undertaking that this matter will be brought back at Third Reading so that we may have an opportunity to reflect on the correspondence? As none of us have had the opportunity to grasp it completely, the discussion has been curtailed.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I am very interested and glad to hear the noble Baroness mention the briefing prepared for us by the Association of Chief Executives of Voluntary Organisations. It makes extremely clearly on behalf of the sector the point made by the noble Lord, Lord Wallace. Welcoming, as we all do, that the Bill has the potential to enable the professional third sector to play a much more significant role in delivering services to offenders—and hear, hear to that—ACEVO states:

"There is significant work to be done to ensure that the market is designed in a way which will allow third sector organisations the opportunity to play to their strengths".

One way of doing that is to:

"Provide long term contracts which guarantee full cost recovery, share risk fairly and do not involve over-burdensome reporting and regulation".

We owe it to them to enable them to do their work on the Bill.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I welcome the concept of having a moral contract; that can be only helpful. I would, however, like to give some examples of the sorts of questions that will have to be dealt with. First, should NGOs—which are by definition non-profit making—be able to include what would otherwise be described as a profit margin to allow for the short length of contracts and to allow them to build up their own legitimate reserves and cope with the possible penalties they may incur as a result of having a contract?

Secondly, it will be important for private sector organisations to be able to build into their bid not only fair rates of pay for those who will be working for them but a quality service to the clients or customers of the service, while allowing that the private sector needs ultimately to make a profit. Thirdly, some quite difficult considerations may arise when probation services themselves are bidding.Will they, for example, be obliged not to put in a loss-making bid?

Those are examples of the kinds of practical problems that will inevitably occur. The Government may say that they will cover them in guidance, but another way of dealing with them is to have them as footnotes to a model contract.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I have a couple of remarks on the important issues raised about contracting with the voluntary sector. I am particularly concerned about what it means for what I would call civil-society organisations. I am not talking about the big-business-like organisations that belong to ACEVO, write briefs to people in the House of Lords and know what they are about. I am talking about the small organisations that have a moral, ethical or religious reason for wanting to do something to make society better in their own way and for wanting to do something different—for example, people connected with churches who do circles of accountability with sex offenders. It is incredibly difficult work that only very dedicated people will do. There are organisations made up of people who used to be involved in abusing drugs who then want to help other young people to get off drugs.

In the world I used to inhabit—to which the noble Lord, Lord Judd, referred before leaving the Chamber—people like that got grants, because those who gave the grants were very grateful that those people were there to do what they did. No one else wanted that work or was able to do it. They were given grants and they accounted for them. A local person helped them with the business side to ensure that it was all done properly. It was a relationship where they were supported, encouraged, allowed to develop and given enormous gratitude. It seemsthat there is no place for people like that in the relationships and contracting which we have been discussing. Those people will never get to first base: they will not be able fill in the form or satisfy the criteria. We will therefore lose them. A big concern about this market approach is that we will lose so many of the things that could make the lives of ex-offenders and of people in society so much better. I am very concerned about it and I hope the Minister will be able to respond.

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

My Lords, I say to the noble Baroness, Lady Stern, that we very much value that group of activists, individuals and collectives. Sustaining their commitment and giving them an opportunity to participate in a fair way is of great importance to us. Part of our work now is to understand better how we can make that activity more sustainable and easier for them and provide longer-term provision. The noble Baroness, the noble Lord, Lord Wallace, and other noble Lords will know as well as I do that sustainability was one of the difficulties facing the voluntary sector because of short-term contracts lasting just one year. I know that the noble Lord, Lord Hylton, was touching on the sustainability point in his comments about the need for footnotes to contracts.

I agree with the noble Lord, Lord Wallace of Saltaire, that it is important for us to come back to this. However, I should like to make a few remarks which I hope will be helpful. First, I apologise for not getting the agreements to the House more quickly. We did it as fast as we could. I could have waited until after today but I very much wanted noble Lords to have in their hands an example of the direction of travel. I thought that that might give some assurance that we were all thinking along the same lines.

As noble Lords will know, local probation boards have been operating since April 2006 in accordance with service level agreements—SLAs—which are agreed between the board and the regional commission acting on behalf of the Secretary of State. I wanted to send noble Lords the extracts so that they could have a taster of how they work. I shall look at further extracts to see whether I can send anything else in addition. I think that an exampleof the current service specification of offender management is helpful. As noble Lords know, the SLAs are not legally binding but represent an important step forward in the move to a fully commissioned environment.

As I am sure noble Lords are aware, we intend the first wave of probation trusts to go live in April 2008. At that point, those trusts will move from SLAs to legally binding contracts. The process of developing the contracts is now well under way and is taking the existing SLAs as the starting point. I emphasise thatit is a starting point. As far as possible, we want contracts to focus on outcomes in order to free trusts and other providers to be more innovative in how they achieve results. We are gathering the specifications for each area of work, such as unpaid work, into separate contract schedules that will sit under a generic set of terms and conditions. Drafts of most of the required contract schedules have been developed but they are currently subject to legal scrutiny. I am not able to share them at this stage, but I hope that if they are ready at a subsequent point we might be able to do something about that. However, I will send noble Lords a list of schedules so that they can see what we have in mind. We are consulting probation chairs and chiefs throughout the process so that, when we reach a draft that is ready for consultation, we will be happy to make it available to the House and to noble Lords who have attended this debate.

I turn now to the specific contracts. I understand from the noble Lord that we can probably leave the specific elements of the amendment until the next occasion. First, however, I want to give one other piece of information which I hope will reassure the noble Lord, Lord Hylton, and the noble Baroness, Lady Stern, and give some comfort to the noble Lords, Lord Wallace and Lord Dholakia. We are constructing a demonstration project with Clinks. Here I should say that I hope the noble Baroness, Lady Stern, will agree that Clinks is a small, dynamic organisation which has demonstrated clearly what small groups of people with passion can do. Clinks will look specifically at how we can develop and sustain this part of the market—the small-scale voluntary sector which makes up 70 per cent of the market and has a real passion and commitment to this work. These local providers do not want to enter into consortia and do not form part of national providers. We want to capture that. Clinks has kindly indicated that it will help us with the demonstration project and we hope to get something of good quality out of it. I can assure the House that the whole process has been very consultative. We are pleased that various parts of the sector have come forward and generously and willingly helped us to recast and recraft the contracts in a way that makes better sense for them—and therefore better sense for us because we will then be able to help the people whom we care about in more meaningful ways.

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

My Lords, I thank the Minister for that reply and I thank all those who contributed to this helpful debate. I hope that we shall have time for some informal discussions on this issue before we return to the Bill at Third Reading. This debate has shown clearly the importance of thinking about local initiatives by local voluntary organisations. There are, among the subtexts of the debate, some who see England as a corporation in which strategic planners structurally change what has to be done from the centre and everything is done for profit. We all know that this is an area in which idealism and altruism are shown by dedicated individuals—often awkward sods doing things locally. However, they are the most innovative in finding ways of dealing with obstinate reoffenders, persistent and prolific offenders and others. That is what we wish to ensure is not lost as we move towards a mixed economy of this sort.

I wish that we had more information on how the Nordic states do this. I constantly regret the extentto which Ministers look at the American model of contestability and do not look at how well it is done in a number of European countries. They manage to maintain prison populations less than half the size of ours who are increasingly diverse in ethnic origin and so forth but without our levels of reoffending.

This has been a helpful debate and I thank the Minister for her generous response. I think the missive which I received was still warm from the copier when I opened the envelope. It was very much a last-minute affair and we need to reflect rather more on it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 7:15 pm, 27th June 2007

moved Amendment No. 9:

After Clause 3, insert the following new Clause—

"Requirement for probation trusts and probation boards to prepare plans

(1) Each probation trust and probation board shall provide a plan for the forthcoming financial year at least four months before the commencement of that year.

(2) A plan submitted under subsection (1) shall set out for the trust or board—

(a) its anticipated probation service needs;(b) from whom it proposes to commission services; and(c) the cost of those services.

(3) Where the Secretary of State considers that sufficient provision will not be made, he may modify the plan.

(4) Any modifications made by the Secretary of State shall be made no later than one month before the start of the financial year covered by the plan."

On Question, amendment agreed to.

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

moved Amendment No. 10:

After Clause 3, insert the following new Clause—

"Charities

(1) In making arrangements under section 3 the Secretary of State shall ensure that no less than seven per cent of probation services other than restricted probation provision, measured by the financial cost of services, shall be provided by charities within the meaning of the Charities Act 2006 (c. 50).

(2) The Secretary of State may by order amend this section so as to increase the percentage specified in subsection (1) of probation services which shall be provided by charities."

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

My Lords, the Minister is aware of my concern about the funding of voluntary organisations; this is not the first debate in which I have raised the matter. The amendment relates to the role of the voluntary sector in providing probation services. This issue was debated in Committee andI have taken into account the comments of noble Lords. The amendment I am proposing now has been redrafted for the purposes of Report stage.

The proposed new clause requires that at least7 per cent of probation budgets other than restricted probation provision as defined in Clause 4 should be used for services provided by charities. During the last discussion in Committee, the noble Lord, Lord Bassam, was surprised that I proposed the figure of7 per cent until I pointed out that it was the figure suggested at the time by the Home Office. The amendment is supported by two co-ordinating bodies for voluntary agencies working with offenders, and I am glad that the noble Baroness has given them a good report. The bodies concerned are Clinks and the Corporate Alliance for Reducing Re-offending.

In Committee, some noble Lords expressed the fear that a requirement of this kind could be regarded in practice as a ceiling rather than a minimum, limiting the contribution to charities of 7 per cent of probation budgets. The charities with which we have consulted are unimpressed by that argument. They point out that they have never seen anywhere near7 per cent of probation services budgets devoted to voluntary sector partnerships, and therefore the figure would represent considerable progress. Moreover, the clause makes the point by enabling the Secretary of State to increase the minimum percentage level by statutory instrument if it seems appropriate to do so as time goes on.

At earlier stages there has been unanimity across the House that voluntary organisations play a vital role in the rehabilitation of offenders. The sector is particularly expert in delivering high quality services in the areas of accommodation, employment, education, mentoring, addiction issues, mental health, work with offenders' families and community engagement. NOMS has developed targets to get more offenders into employment and sustainable accommodation, improve their education and involve them in drug treatment programmes. If these targets are to be achieved, the involvement of voluntary and community organisations is crucial. Yet the history of the past few years shows that the Probation Service has often been reluctant to engage the voluntary sector in partnership except when it is required to do so either by legislation or by centrally driven targets.

Until 2001, the Probation Service had an official target to devote 7 per cent of its resources to voluntary initiatives. This was not a statutory requirement and the service never quite achieved that percentage. However, the existence of even a non-statutory target pushed up the proportion of the service's budget devoted to such partnerships to around 5 per cent. Regrettably, the 7 per cent target was removed in 2001. After that, the proportion of the probation budget spent on contracts with the voluntary and private sectors combined plummeted to less than 2.5 per cent. Faced with the threat of contestability, the Probation Service has recently begun to remedy this by adopting a target of devoting 5 per cent of its budget in 2006-07, and 10 per cent in 2007-08, to partnerships with the voluntary and private sectors.

The Government's principal argument about the evolution of targets is that of best value, and that is understood. They argue that charities should not be given work if it can be provided at better value by the public or private sectors. Of course no one can dispute that. The problem is that, in reality, even when charities can provide better value the process of contestability could prevent them getting contracts to work with offenders. The amount of bureaucracy which has them tied up in paperwork and so on could be a tremendous disadvantage to any of the voluntary organisations. By specifying a minimum level of contracts with charities, the new clause would guard against the risk of the voluntary sector's unique contribution being squeezed out of the process.

Past experience shows that unless the Probation Service has to devote a significant percentage of its budget to voluntary sector partnership it is unlikely to do so. By requiring it to do so, the amendment would guard against the risk that charities will be squeezed out of work with offenders, in complete contradiction to the Government's stated intention of involving the voluntary sector more extensively in the rehabilitation of offenders. The purpose of the amendment at this late stage is to seek from the Minister an explanation of how she sees the expansion of the role of voluntary organisations and what kind of resources will be available to them in future years. I beg to move.

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

My Lords, I am grateful to Mr Paul Cavadino for meeting the noble Lord, Lord Dholakia, and me last week to discussthe amendment. It makes good progress on the amendment debated in Committee, but the principle remains the same: it is important to ensure that charities are not disadvantaged under the new system of contestability and can secure as much of the contract work as is appropriate given their undeniable skills, commitment and flexibility. I note that the amendment is supported by the two co-ordinating bodies for voluntary agencies working with offenders, the Corporate Alliance for Reducing Re-offending and Clinks, a body the Minister praised in her response to the previous amendment.

In Committee I was one of those who expressed concern that, if a minimum required percentage of services to be provided by the third sector were included in the Bill, it might rapidly become the ceiling. That objection has, to a great extent, been overcome by subsection (2) of the new amendment today. The Secretary of State is given the power to increase that percentage by order; that means he could respond to changing circumstances. We are still of the view that the third sector could and should form a minimum of 7 per cent of the delivery of interventions. Indeed, I have always made it clear that I would be happy for the third sector to take the lion's share of service delivery where it is the right organisation to do so and is in a position to deliver to the standard required.

I share Mr Cavadino's fear that the Government's methods for rolling out contestability may mean that private and public sector agencies, in effect, get more work than voluntary organisations, not because they are better at the work but because they have more resources to enter the bidding process in the first place. I feel that that is not what the Government intend. When we look at the model contracts, we may find a way through this by Third Reading. At the moment there is no doubt that the public and private sectors could put teams of people on to the intensive process of writing complicated bids, often at very short notice. That is the real world.

We need to know from the Minister how the Government will ensure that the third sector is not put at a disadvantage in the bidding process. The third sector is, and must be, a vital part of the delivery of offender management services. So, although I still have a long way to go before I am persuaded fully to support the amendment, I recognise the advances it makes. It is important in that it gives the Minister the opportunity to demonstrate how the third sector will not be disadvantaged.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I am instinctively concerned when I hear percentages put down because, as the noble Baroness explained, they can become ceilings. Of course one wants to see everyone possible involved, but I have to return to the point that I tried to make earlier: this is all very well, provided thatthe resources are there to commission the people. I have not yet seen set out what will be required professionally of the Probation Service and how much of its budget that will take. It is no good saying, "You have to do that and, incidentally, you have to ensure 7 per cent for the voluntary sector". That could eat into its statutory requirements, and then what is the Probation Service to do?

Having read through the regulatory impact assessment in great detail, I am not conscious that these sums have been done. I have tried to engage with the chief executive of NOMS to find out whether the professional probation services provided by the public sector had been costed and the budget that will be available to commission services from the other sectors. Without being too dogmatic, I think that people have to be clear about this. It is no good launching an intention with which everyone agrees unless it can be delivered; otherwise we will end up dispiriting, not only the people on the receiving end of hopeful contracts which can never be given, but too many members of all three sectors.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, my noble friend Lord Ramsbotham has made a very important point. I am encouraged by the history of the 7 per cent requirement. In the past it had a good effect; then it was removed and matters slipped a little. There could be a case for a percentage which could move upwards. However, having said that, the group that I am most concerned about, the smaller charities, must be put in a position where they can compete for the role they would carry out superbly well. I am equally encouraged to hear from the noble Baroness that Clinks is involved in a demonstration in this regard.

We will probably come back to this area. There is some hope if we concentrate on the vital point of providing adequate resources to enable the probation services to carry out their essential functions.

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

My Lords, I recognise the desire of the noble Lord, Lord Dholakia, to ensure that the voluntary sector plays a key role in the new arrangements we are proposing. That has been echoed by all noble Lords who have spoken today, and I fully share that desire. Indeed, it has been one of the key drivers of the Bill. That is why we have been working very closely with the sector and are so heartened by the support for the Bill from many voluntary sector providers, such as Nacro, Rainer and Turning Point. I have already mentioned the positive response that we have had from these bodies and I am very happy that we are working with Clinks.

The reason that I cannot accept the imposition of a target for the amount of work that should be contracted to any one sector has already been explained. I share the concern of the noble Baroness, Lady Anelay, echoed by the noble Lord, Lord Ramsbotham, that a required percentage could very quickly become a ceiling that is met with difficulty without any real effort to go further and look at the people who can deliver the work. At the moment, approximately 75 per cent of contracts and grants are with the third sector and 25 per cent are with the private sector. The target for 2006-07 was 5 per cent of each board's main grant; the future target is 10 per cent of each board's main grant for 2007-08, and probation boards are in the process of preparing subcontracting plans for their regional offender manager, setting out how they will reach the 10 per cent target in 2007-08. Some boards will hit those targets, but the average is likely to be around 3.5 per cent in 2006-07 and 6 per cent in 2007-08. We hope we will be able to accelerate that. By the end of 2008, when the trusts come into being, we hope that the10 per cent direction of travel will be well established, and we wish to see that go further. That is, of course, dependent on outcomes; it is why it is so important that contracts are outcome focused so that those who produce those outcomes are likely to succeed in getting the contracts.

We understand what the noble Baroness, Lady Stern, said on this occasion, but I hope that, with some of the standard contracts we are working on, we will be able to deal with the issues raised by the noble Lord, Lord Hylton: the need to reduce paperwork, to have standard contracts, to have sustainability built in through longer terms and resilience, and to be able to assist smaller organisations to take advantage of the system without being burdened. We are going in the right direction, and I hope that at Third Readingthe noble Lord, Lord Dholakia, and others will feel happier that we have built in a sustainable process through which we can all be more confident that we can deliver on the things that we want to. That is why it is so important that we have Clinks and others helping and working with us to see how we can deliver this better.

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

My Lords, I thank noble Lords who have participated in this short debate. I also thank the Minister for being positive in her response. In the light of what she has said—and I am surethe Government's intentions will be welcomed bythe voluntary sector—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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

moved Amendment No. 11:

Clause 4, page 4, line 12, leave out "3(2)" and insert "3"

On Question, amendment agreed to.

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

My Lords, I beg tomove that further consideration on Report be now adjourned, and in moving this Motion I suggest that the Report stage begin again not before 8.33 pm.

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