Lord Thomas of Cwmgiedd:

Moved by Lord Thomas of Cwmgiedd

136: After Clause 40, insert the following new Clause—“Management of offenders on probation: devolution to Wales(1) In paragraph 175 (prisons and offender management) of Schedule 7A of the Government of Wales Act 2006—(a) in sub-paragraph (3), omit “probation”;(b) under the “Exceptions” insert “Probation in relation to offender management”.(2) The Secretary of State must by regulations make further provision under this section to facilitate the transfer of the provision of the probation service in Wales from the Secretary of State to Senedd Cymru and Welsh Ministers.”Member’s explanatory statementThis new clause seeks to devolve probation services to Wales, by removing it from the list of reserved matters in the Government of Wales Act 2006.

My Lords, I beg to move an Amendment that, at this hour of the night, might seem one that could have been moved on another occasion—but that is timing. This is a probing amendment to deal with a matter that is becoming important across many areas of justice, and Wales will return on a lot of Bills that are currently going through Parliament. I raised this issue at Second Reading and the Minister was kind enough to explain to me roughly where the problem is.

I think the problem can basically be described in this way: there are extremely good reasons, to which I shall come in a moment, for the devolution of probation to Wales. But the Government in Wales are anxious to have devolution to Wales, while the Government in London do not regard that as something they want to do—it is certainly not a priority—as they see their job as putting the Probation Service right first, whenever that may happen. What is very important is that what is happening is the subject of public debate, particularly because the elections are coming in Wales in May, and the various aspects of devolution are being highlighted by what one might call “friendly family discussions” between two different parts of the Labour Party: the Labour Party in Wales and the parliamentary party in London. It is so topical that, in fact, yesterday the research unit of the Senedd Cymru published a paper on this matter.

There are three options. The first is what I would call the Manchester model, which is a sort of dual commissioning for devolution to Wales. The second is passing executive responsibility to Welsh Ministers but maintaining control over policy in London; and the third is the devolution of both services and policy. There is a lot of information so, rather than trying to go through and explain it all, I will say that an extremely good paper by the Wales Centre for Public Policy and another paper by the Welsh Centre for Crime and Social Justice, through the Probation Development Group, set out many of the complex considerations.

The devolution of probation services was the solution when a commission that I chaired, which reported under the title Justice in Wales for the People of Wales, concluded in its chapter 4 that all penal services, including probation, should be devolved. This was an entirely non-political group. It included people well known in this area, such as Juliet Lyon, Sarah Payne and Peter Vaughan, the former chief constable of South Wales.

Why was it that we all came to the view that there should be devolution? First, and critically, justice in Wales is, for some reason, the one area of domestic policy that is not devolved. This is entirely irrational and is derived from the history of the way in which devolution emerged. In no other country in the world would you think that justice was so unimportant that you could leave it to one side and not devolve it with other services. In Wales, it is important that justice, and particular aspects of it, including the Probation Service, are devolved, so that they can work alongside the other parts of government.

Secondly, one has the benefit in England, Scotland and Northern Ireland—there is no one from Northern Ireland here at the moment—of being able to formulate policy as an integral whole. You can look at justice policy and probation policy, and you can fit it in with everything else you are doing. Wales is not allowed to do that.

Thirdly, Wales is rather different. In this respect, it is quite important that it does not have a big city like Manchester, London, Leeds or Birmingham. Large parts of it are rural; government services are organised differently, because local government is different; it unfortunately suffers from a very poor economy, with large areas of poverty, both rural and urban; and, of course, Wales has its own language.

There is a further reason. Research shows that the rate of imprisonment in Wales is higher than it is in England. Why that is so is not clear; it may be because of the way the Government keep their statistics, but it is an important issue. It is thought that, if probation services could be integrated more, one could address these questions.

More importantly, there are many in this country—and no doubt a number in this Committee—who would wish the Government to pursue a more enlightened penal policy. I have said on many occasions that it would be a great blessing here in England if we stopped sending so many people to prison. As my two predecessors as Lord Chief Justice—who are with us still—and Sir Brian Leveson argued, we should go back to levels of punishment and imprisonment that we enjoyed 20 or 30 years ago, because that is the only way we will ever have sufficient money to deal with probation.

I appreciate that there are very real problems in getting this done in England, but I do not believe those exist in Wales. By stepping along this road, we could pursue a proper, enlightened prison policy and use the money in a more sensible way.

Why is this not being done? There are two reasons. First, I regret to say that some departments keep the view, “Whitehall knows best”. It is a stain that runs through the entirety of devolution, but it is still a problem in certain departments in London. Secondly, I have alluded to the problems and differences between the Labour Government in Cardiff and the Parliamentary Labour Party and Government in London, and why they cannot agree on doing something sensible—but it is not for me to go into that. That is why devolution is not going forward.

I understand, from what I have read, that the model thought up for Manchester is to be imposed on Wales. I am very sympathetic to the position of the Welsh Government, because, faced as they are with the control over this being vested in the London Government, they have, in effect, no option but to agree to something that I think is contrary to the interests of Wales. There should be proper devolution—but that is how it is.

This is a probing amendment, and I very much hope that the Minister will be able to bring into the public domain what is going on in this area. I look forward to his explanation. I should say that this is an issue similar to the devolution of policing and youth justice, and to the problem we have at the moment with the assisted dying Bill. The problem of not addressing devolution in Wales sensibly and with discussion will, I am afraid, weary this Parliament on a number of issues where the differences of opinion between the Government here and the Government in Cardiff ought to come out into the open so that we can have a proper debate. I will say now that I intend to do that on each successive occasion that these issues come up. I beg to move.

My Lords, I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for bringing this issue to the Committee. Effective probation practice depends fundamentally on local knowledge, local accountability and integration with wider services, including housing, health, substance misuse, skills and so on. In Wales, these services, in contrast to probation, are largely devolved. It is therefore entirely reasonable to ask whether the current arrangement or settlement best serves the people of Wales and whether the structures we have today genuinely allow probation to work in partnership effectively with the devolved landscape.

The noble and learned Lord has raised an important point. We on these Benches do not commit ourselves today to the specific mechanism set out in the Amendment. Devolution of an important plank of the criminal justice function requires proper consideration, planning and, above all, collaboration—I emphasise that word in the light of what the noble and learned Lord has said—between the United Kingdom Government and Welsh Ministers. We agree that that conversation cannot be avoided. It must be approached constructively with regard to the Welsh perspective.

Probation in Wales faces real pressures and deserves a stable and effective framework within which to operate. If the Minister believes that the current reserved model remains the right one, the Committee would expect him to set out clearly how it delivers coherence, integration and accountability, and how it is effective not in theory but in practice. We are grateful to the noble and learned Lord for initiating this debate, and we look forward to the Government’s response, probably not for just the one time.

I thank the noble and learned Lord, Lord Thomas, for his Amendment and his thoughtful engagement on this issue and others. I know he has met my noble friend the Minister outside the Chamber to discuss these things.

The Government committed to undertake a strategic review of probation in their manifesto, and it is still our plan to review the governance of the Probation Service, looking at partnerships across England and Wales. The noble and learned Lord, Lord Thomas, mentioned the Manchester model. I hesitate to agree with the suggestion that it is being imposed on Wales, but I have to say that I am rather a fan of the Manchester model. In fact, I regard myself as the progenitor of it—or one of them—when I was at HMPPS as its lead non-executive director. That is part of what is on offer, as it were.

It is important that the recommendations in this Bill are first implemented and that we bring stability to the Probation Service in England and Wales as it currently is before undertaking any structural review. The Government believe that this would not be the right time to consider factoring structural changes into the many changes to probation that will arise as a result of this legislation. I understand that the doctrine of unripe time is often a fairly feeble excuse for inaction, but I am sure that everyone in the Committee recognises that—if I can put it like this—the capacity for change in the Probation Service, with this Bill and the current situation, is pretty much maxed out.

The amendment proposes devolving the Probation Service, but not the equivalent in relation to sentencing or prisons. Devolving parts of the criminal justice system in this way would create a divergence between the management of offenders and the wider criminal justice, sentencing and prison framework across England and Wales. We know that poor handovers, weak communication or gaps in support during the transition from custody to the community are among the greatest barriers to successful resettlement, so we are concerned that some of the changes that might arise as a result of this would create friction in the way that I have suggested. Therefore, any framework in which prisons and probation are separately owned, funded or designed carries a real risk that the two halves of the process might fail to connect, particularly at a time of strain. When that happens, people leaving prison can all too easily fall through the gaps.

That is the heart of the Government’s view at the moment—that this is not a good time to impose structural change on the Probation Service. We want to be sure that we do not create the sort of risks and frictions that I discussed. We will continue to work closely with the Welsh Government to support the local delivery of services by devolved and reserved partners in Wales. I hope that I have given the noble and learned Lord some reassurance, at least sufficient for him to withdraw his amendment.

My Lords, I completely agree with the noble Lord who has responded. It is obviously sensible to devolve prisons and probation together—that is what we recommended—but the political reality of the way in which the Governments in Cardiff and London relate, particularly when they are of the same party, made me think at this stage not to put down prisons and probation. I shall rethink that for the next time.

I wish that people here would realise that there will be no effective change to the Probation Service until we can take some of the money out of prisons and put it into probation. I am sure that most people who think about it realise that the Government do not have any money and realise it has got to come from somewhere, and that imprisoning people for sensible and shorter times is a much better policy. I would like to see that done in Wales, and I am convinced it could be done, so I will think about the suggestion from the Minister that we should put down both on the next occasion.

I said that the Manchester model was being imposed, but it is really a Hobson’s choice. That is what I mean about it being imposed—“You want something, so we will give you a little bit to keep you quiet”. But it is not the right model, because Manchester is not a country; it is a city in England where people here make decisions on policy. Wales is a different country, a proud and ancient nation. That is the difference, and that is why the Manchester model is good for Manchester but not good for Wales.

In the light of all that has been said, I hope that I may return to this issue, maybe in a slightly different and wider form of Amendment, as suggested. I beg leave to withdraw the amendment.

Amendment 136 withdrawn.

Amendment 137 not moved.