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Clause 3 - Supervision after end of sentence

Offender Rehabilitation Bill [Lords] – in a Public Bill Committee on 28th November 2013.

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Amendment proposed (this day): 4, in clause 3, page 2, line 42, at end insert—

‘(7A) The Secretary of State must prescribe minimum training requirements to be completed by the supervisor, in regulations to be laid before, and approved by resolution of, both Houses of Parliament.’.—(Mr Slaughter.)

Question again proposed, That the amendment be made.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

It is good to see you back in the Chair this afternoon, Ms Dorries. We were discussing amendment 4, which raises the important issue of training, as the hon. Member for Hammersmith outlined. It is very similar to amendment 5 to be considered in a later group.

Amendment 4 would require the Secretary of State to set out, in regulations approved by both Houses of Parliament, the minimum training requirements for members of staff responsible for managing the period of top-up supervision. The amendment raises two points: one, that the Secretary of State should set out minimum training requirements; and, two, that those should be subject to parliamentary scrutiny.

The first point, as I attempted to say earlier when intervening on the hon. Gentleman, is covered by section 10 of the Offender Management Act 2007, which provides that the Secretary of State may publish guidelines about any qualifications, experience or training required to perform the work of an officer of a provider of probation services. It also requires that he must publish guidelines about qualifications, experience or training in relation to work involving the supervision of offenders and other work requiring direct contact with offenders, including those held in custody.

In the context of the Bill, the supervisor and responsible officer roles both clearly fall into the category of work involving the supervision of offenders and, therefore, the underlying principle of the amendment falls within the Secretary of State’s existing statutory duty to publish guidelines about any required qualifications, experience or training for the roles.

On the second point, that minimum requirements ought to be subject to parliamentary scrutiny, I would point out that when Parliament placed the existing requirements on the Secretary of State, in section 10 of the 2007 Act, to publish guidelines, it did not stipulate that those guidelines should be subject to parliamentary approval. The Government believe that the approach in the 2007 Act was the right one.

The training and experience of staff is and should remain an operational matter that we would not normally expect to be subject to detailed parliamentary scrutiny. Specifying minimum training requirements in regulations would introduce unnecessary bureaucracy and would create an inflexible system in which regulations would need frequent revisions to reflect developments in training and qualifications.

However, I can assure the Committee and the hon. Member for Hammersmith in particular, that community rehabilitation companies will not be free to use inexperienced or unsuitable staff to manage offenders. CRCs will be contractually required to have and maintain a suitably trained and competent work force. Potential providers will be asked to demonstrate in their bids how they will ensure staff are competent to carry out the work and manage the level of risk posed by offenders.

We will ask providers to demonstrate that all staff employed to supervise offenders, and conduct work requiring direct contact with offenders, are competent within the core skills that underpin the national occupational standards for probation. For those staff authorised as officers of providers of probation services who will have the statutory responsibility for managing the delivery of the sentence of the court, and for managing the risk of serious harm, we would expect those skills to be evidenced at an appropriately high level, for example through an accredited qualification or through a minimum number of years of relevant experience.

Supervisors of offenders subject to top-up supervision, and responsible officers in all cases except where a community sentence consists solely of an electronically monitored curfew requirement, must by law be authorised officers of a provider of probation services. As I have already said, the 2007 Act requires the Secretary of State to publish guidelines about any qualifications, experience or training required to perform the work of an officer of a provider of probation services, and in due course we will publish new guidelines. However, we are not reliant on those guidelines alone to set the minimum standard for CRCs and to provide the necessary safeguards. We will also do that through the bidding process and through contractual obligations.

While I appreciate the hon. Gentleman’s concern in the matter, I am not convinced that adding a new layer of formal scrutiny would be helpful. I therefore invite him to withdraw the amendment.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

It is a pleasure to have you back in the Chair this afternoon, Ms Dorries. I hear what the Minister says. I take his point on the inflexibility of using statutory regulations to control matters that are moveable feasts in terms of training and supervision.

As with many of our amendments, what this amendment is really hinting at is our concern at the lack of clarity on who the provider will be and under what conditions they would work; and if, as we suspect, they are going to be the usual suspects, whether they are competent persons to do that. I think we will return to that in the main group of amendments, both those in my name and that of my hon. Friend the Member for Darlington, and also those in the name of my right hon. Friend for Dwyfor Meirionnydd—amendments 20 and 22 deal with who the supervision should be carried out by. Perhaps that  would be a more appropriate time to voice those concerns more fully. I will with some reluctance seek leave to withdraw the amendments now.

Amendment, by leave, withdrawn.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I beg to move amendment 49, in clause 3, page 2, line 42, at end insert—

(a) at the start of the supervision period the supervisor must record whether the offender is currently or has previously been looked after by a local authority.

(b) where the offender is an eligible child as defined in paragraph 19B(2) of Part II of Schedule 2 to the Children Act 1989, the supervisor must discharge the functions conferred on him by this Chapter in consultation with the local authority responsible for preparing a pathway plan for the offender.

(c) in this subsection “looked after by a local authority” shall have the same meaning as in section 22(1) of the Children Act 1989.’.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss amendment 50, in clause 3, page 2, line 42, at end insert—

‘(7A) The supervisor must explain to the offender in language appropriate to his individual intellectual ability and understanding—

(a) the effect of the supervision requirements, and

(b) the effect of non-compliance with any requirement with which the offender is required to comply.’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

This is a pretty straightforward issue. I think it is a clear issue and I hope it is one that will find some favour with the Minister. We touched just now on the need for supervisors to be equipped to deal with the variety of different circumstances that affect offenders. This amendment deals with the particular needs of care leavers and those with learning difficulties who have entered the criminal justice system. Amendment 49 is in my name and that of my hon. Friends the Members for Darlington and Kingston upon Hull East, and my right hon. Friend the Member for Wythenshawe and Sale East, who I am delighted to see has joined us here in Committee this afternoon. It provides that a supervisor must record if an offender under their care is currently or has previously been looked after by a local authority. It also provides that where a care leaver under supervision is entitled to leaving care services of a local authority, the supervision provider must cooperate with that local authority.

Children in care and care leavers account for less than 1% of the general population but are disproportionately represented in custody and the justice system more widely. Her Majesty’s inspectorate of prisons estimated last year that 30% of young men and 44% of young women in custody are looked-after children. Care leavers are also disproportionately likely to enter custody throughout their adult life. The Care Leavers’ Association estimate that over 25% of the adult prison population has previously been in care. We know that looked-after children and care leavers are a particularly vulnerable group for being drawn into the criminal justice system. They too often lack the support networks and stability that most of us are privy to. Despite the quite shocking estimates of numbers of looked-after children in custody, and the implication this has for corporate parenting, the criminal justice system still fails to carry out logical routine screening for looked-after status. Multi-agency  work on care leavers in the system points to a lack of identification as a key barrier to improving support for looked-after children and care leavers. I know that the Government are aware of this issue. In their care leaver strategy, they reference plans to develop ways of identifying care leavers in adult services, both in custody and in the community. The introduction of a new supervision model is obviously an opportunity to build such identification into the system from the start. Will the Minister update the Committee on the Government’s plans?

The issue of identification, particularly of care leavers as they enter the adult system, is key to the next issue of planning and support for this group. As my right hon. Friend the Member for Wythenshawe and Sale East said on Second Reading, we have a situation where young people in care may go into prison as a child and come out as an adult, a care leaver. Young people between 18 and 21 are entitled to leaving care services under the Children Act 1989, and the Children (Leaving Care) Act 2000. These include personal advisers and pathway plans from the local authority. Joined-up working is clearly necessary properly to bring together planning on leaving care pathway plans, sentence plans and resettlement arrangements.

Photo of Sarah Champion Sarah Champion Labour, Rotherham

I support everything that my hon. Friend has said. Would he also agree that care leavers tend to have a much higher chance of being sexually abused and of being victims of other criminals? We should be looking at them as vulnerable adults, and I think this amendment is trying to recognise that so that they get the due support that they need.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Yes. That picks up on the point I was making earlier, which is that the perpetrators, the offenders, are also victims in many of these cases. I think that a legion of recent cases has shown that to be the case. In the current system, when a youth offending team makes the decision to transfer a care leaver to a probation trust, it informs the trust of this status. Under transforming rehabilitation plans, many young care leavers will be transferred to new adult providers who are likely to be inexperienced and will not necessarily have the right knowledge of the system, or links with local government, to know what is required. The Government have recognised this risk themselves. To take account of the fact that a new range of providers will now find themselves responsible for this group, NOMS has published new guidance for those working with care leavers in the criminal justice system.

It is welcome that the guidance will be distributed and welcome also that the MOJ are reportedly to appoint a care leavers champion among its ranks. I wonder if the Minister would be happy to give the Committee more detail about how this champion will operate, whether they will be full-time or part-time and how much power they will have? While the guidance is a good step, the amendment would give statutory footing to the duty of new providers to co-operate with local authorities in planning for care leavers and ensuring they have access to the services they are entitled to.

The guidance encourages understanding, but does not instil this duty or guarantee compliance—particularly if it is not backed up by staff training and adequate resources. The amendment removes all doubt and gives  the duty the legal status due to it. I know the Government recognise that care leavers are particularly vulnerable in the transition to adulthood and I hope they will support putting this basic and important safeguard into the Bill.

Amendment 50 repeats an issue that was raised in the other place. It provides that the supervisor must explain the supervision requirements and the consequences of breaching those requirements to each offender, in language appropriate to their ability and understanding. The amendment was first introduced in the other place by the noble Lord Bradley, who explained that its aim was to ensure that any offenders with learning disabilities or poor communication skills would be able fully to understand what is required of them. The Government will appreciate that the introduction of a licence and supervision period, complete with statutory requirements, does add extra complexity into a person's sentence. As Lord Bradley put it:

“To do otherwise will place the individual at risk of”— unconscious—

“non-compliance, possible breach and a return to court”—[Official Report, House of Lords, 5 June 2013; Vol. 745, c. 1197.]

The Minister's colleague in the other place, the noble Lord, Lord Ahmad of Wimbledon, acknowledged

“the importance of”— meeting—

“the requirements of those who have learning difficulties or problems in understanding”—[Official Report, House of Lords, 5 June 2013; Vol. 745, c. 1201.]

Lord Ahmad committed the Government to providing updated guidance for staff on implementing licence conditions and supervision requirements, and issuing an easy-read version of supervision requirements. He also acknowledged the need for training to include the importance of clear and effective communication between staff and the offenders they manage. Would the Minister be happy to give an assurance of these same intentions to colleagues in this House on the plans to issue new guidance and an easy-read version of requirements; and will he please update the Committee on what training supervisors will be expected to take part in, and that this issue will be included?

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

It is the Minister’s job to get this Bill through the Committee and back to Report and Third Reading. However, there comes a point in considering any Bill where a point is made—sometimes by the Opposition or from Back Benchers on the Minister’s own side—which is sensible and capable of consensus across the Committee. I believe that amendment 49, in particular, ticks both those boxes. It is both sensible and should be a point of consensus. I will not repeat all the points that my hon. Friend made about how much more vulnerable children in care are, but the fact that we are talking about prisons and probation reminds us that they are much more likely to be in prison or subject to probation supervision than those in the community who have not been in care.

We should always remember that children in care are all our children. Whatever party we belong to and whatever responsibilities we have, we all have an obligation to them. I particularly want to place on record my appreciation for the work of the Under-Secretary of State  for Education, the hon. Member for Crewe and Nantwich (Mr Timpson), both before and while he has been a Minister, in advancing the caused of looked-after children. As I said, they are all our responsibility. I worked with him before he was a Minister to persuade the Government to put in place a system of savings accounts for looked-after children. I am pleased to say that, with backing from the Chancellor, 40,000 children in care now have a savings account as a result of that initiative. I know that the Minister responsible for children and care is, even now, considering how further improvements can be made in the context of the Children and Families Bill.

I say all that as a preamble to set the context that the issue is something on which there should be a consensus. On Second Reading I asked what would happen where a child goes into prison as a child in care and comes out as an adult? I am sure that the Minister will have some good answers for us on that. The amendment is the way through which we could absolutely copper-fasten the commitments and obligations that we all have to those children in care who go through the correctional system at the point when they make the transition from care into adult life.

Amendment 49 would make it crystal clear that, at the start of a supervision period, it is necessary to find out whether the child has been in care and to record that. There would then be an obligation to work in partnership and consultation with the local authority. That is not an exercise in bureaucracy. The local authority has abiding obligations and legal responsibilities regarding children in care that it must discharge way beyond the date at which a child leaves care and enters their adult life.

The amendment could be a good way for the Minister and the Bill to make it absolutely clear what the obligations are regarding children in care. I urge the Minister to reflect carefully on the issue, which I am sure he has been doing, and to give us a positive answer this afternoon.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice 2:15 pm, 28th November 2013

As the hon. Member for Hammersmith has set out, amendments 49 and 50, while relating to clause 3, are different amendments.

Amendment 49 seeks to place a statutory duty on the person tasked with supervising an offender during the period of top-up supervision to record whether the offender is either currently or formerly a looked-after child. Where the offender falls into either category, the amendment seeks to place a requirement on the supervisor to liaise with the local authority that has continuing responsibility towards that offender.

I do not dispute in any way the points made by the hon. Member for Hammersmith and the right hon. Member for Wythenshawe and Sale East about the importance of the issue. I know that the Under-Secretary of State for Education, my hon. Friend the Member for Crewe and Nantwich (Mr Timpson), would be grateful for the words that the right hon. Gentleman spoke about him. I am sure that my hon. Friend would wish me to return the compliment and recognise that the right hon. Gentleman has also done a huge amount on the subject and has made a significant contribution to the debate over a long time. However, while I understand and sympathise with the objectives, I cannot accept the amendment for a series of practical reasons.

Regarding proposed new paragraph (a), I would agree entirely with the principle that records should be kept of offenders who were looked after and who will be entitled to continuing local authority support as care leavers. However, there are some issues with the terminology used in the amendment and its intended scope.

As the provisions relating to top-up supervision apply only to those aged 18 on release, such offenders would not, at the start of the supervision period, be looked-after children. The other cohort of people that the amendment is aimed at is former looked-after children for whom the local authority has continuing responsibilities once they have been released from custody.

As has been said, the local authority retains continuing responsibility for supporting some offenders aged 18-plus as care leavers. That group are referred to, in law, as former relevant children. The authority must allocate a personal adviser to maintain a plan and to stay in touch with them until age 21, or until they finish any programme of education or training.

Amendment 49 refers to previously looked-after children, which would extend, for example, to those who were adopted, or anyone who had been looked after during their infancy or childhood. The amendment would therefore draw in those for whom the local authority may not have had any contact and where engagement with the local authority would not be required.

I also question the need for proposed new paragraph (b) in amendment 49, which would place a statutory duty on supervisors and local authorities to co-operate. As both the hon. Member for Hammersmith and the right hon. Member for Wythenshawe and Sale East made clear, there is existing statutory guidance under the Children Act, which requires that, where a looked-after child or a care leaver is discharged form custody, their local authority social worker or leaving care personal adviser must work alongside the youth offending team or probation supervisor. That position will not change where the offender is subject to top-up supervision, and it will apply to whoever provides the supervision. Indeed, it will clearly be in their best interest to ensure that the local authority plays an active role—for instance, in supporting the offender with suitable accommodation—as this will directly aid the offender’s successful rehabilitation. A recent practice guidance, “Working with Care Leavers (18-25), in custody and the community, to reduce reoffending and promote effective transition to adulthood”, has just been issued and will be available to all supervisors of top-up supervision.

As I have already said, I appreciate what hon. and right hon. Members are trying to achieve through the amendment, but I consider it unnecessary. I would like to reassure the Committee that, through guidance and specific provision on IT systems, we will ensure that records are kept of those young offenders who are former looked-after children. The guidance will also reaffirm the existing statutory guidance to ensure providers work in co-operation with local authorities with the mutual aim of successful rehabilitation.

As the Committee will appreciate, the overarching aim of the Bill is to reduce reoffending, and I believe that collaborative work with local authorities for former looked-after children will be properly incentivised. I hope therefore that the hon. Member for Hammersmith is reassured by what I have said and will be prepared to withdraw the amendment.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am grateful to the Minister for responding to the debate in exactly the right spirit. He has offered some reassurances, which I will reflect on. In the spirit of trying to get this absolutely right, and once we have all had time to reflect, would he be prepared to take further representations and consider whether other things could be added to make the obligations absolutely clear so that there is not duplication, but also so that there is not a situation in which a young person would be left without proper care and attention.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Of course I will do that. As I said, there is a technical deficiency with the amendment, but I do not believe that we do not have adequate coverage of the points that we have discussed in the law as it stands. However, I am happy to reflect on any further submissions that the right hon. Gentleman or others wish to make if they, on reflection, believe that there are still gaps in what we currently have.

Amendment 50, as the hon. Member for Hammersmith has said, is identical to the amendment tabled by Lord Bradley in the other place at Committee stage. I entirely agree with the hon. Gentleman about the importance of explaining the new supervision conditions to offenders in a way they can understand. That is why front-line staff have for a number of years been required through Prison Service and probation instructions to take into account issues such as learning disabilities when explaining the conditions of licence to offenders prior to release.

Let me quote the relevant extract:

“When explaining licence conditions to offenders, staff must ensure that the offender understands any such conditions. This is particularly important with additional and bespoke conditions as they may contain complex or detailed requirements. In addition, staff must take into account any issues such as English as a second language, or learning disabilities that may prevent the offender from understanding completely what is required of them.”

Those instructions apply both to prison governors and to probation staff, whether employed by the probation service or other providers. When the supervision provisions of the Bill come into force, we will issue revised instructions covering both licence and supervision requirements. Those will be mandated for use by both the national probation service and by community rehabilitation companies. CRCs will be expected to comply with the instructions as part of their contracts.

My noble Friend Lord Ahmad made a commitment during the Lords Committee stage that the Ministry of Justice would develop and issue an easy-read version of the supervision conditions to complement the current version for licence conditions. I am happy to repeat that commitment for the record. I also repeat the commitment that we will revise both sets of instructions to include the new top-up supervision period, and explain the differences between this and the licence period.

In conclusion, I welcome the spirit of amendment 50. We need to ensure that offenders understand what is required of them, otherwise we will simply set them up to fail. I hope, therefore, that my explanation of the existing system of instructions and guidance for licence—giving discretion for when the explanation takes place, who gives it and how it is delivered—together with my assurances as how we will apply the same system to top-up supervision, reassures the hon. Gentleman and that he will be prepared to withdraw his amendment.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am grateful to the Minister and to my right hon. Friend the Member for Wythenshawe and Sale East. Given the spirit of the Minister’s comments and the letter of what he said, I will not press the amendments to a vote. The Minister shows an understanding of the real difficulty of comprehension, which is true for many people even in relatively straightforward matters in court proceedings, such as in pleas and in what is said. Certainly in the youth court and, to some extent, in the magistrates court, there is a greater awareness—I know that the Magistrates’ Association shares this view—that defendants must understand the proceedings.

These are complicated matters and the procedures are new to us. If they do not work for the benefit of those for whom they are intended, which is not just society and the victims, but the offenders, that will be a clear failure. In light of the Minister’s appreciation of that and the spirit in which he made his remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I beg to move amendment 30, in clause 3, page 3, line 1, after (8) insert ‘Subject to subsection (8A)’.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss the following:

Amendment 20, in clause 3, page 3, line 2, leave out—

‘officer of a provider of probation services’ and insert—

‘officer of a probation trust’.

Amendment 31, in clause 3, page 3, line 5, at end insert—

(a) where the offender turns 18 on or before the last day of the requisite custodial period but is under the age of 21, the supervisor may be a member of a youth offending team established by the local authority in whose area the offender resides for the time being.

(b) the decision as to when to transfer responsibility for an offender from a member of a youth offending team to an officer of another provider of probation services must be taken by the relevant youth offending team, in consultation with the future provider of probation services.’.

Amendment 33, in clause 3, page 3, line 5, at end insert—

‘(8A) Where the supervisor is an officer of a non-public sector provider of probation services the Secretary of State must—

(a) designate the provider as a “public authority”, as defined in section 3 of the Freedom of Information Act 2000;

(b) limit contractual arrangements with the provider for the provision of probation services to a maximum length of five years;

(c) prescribe key performance standards that the provider is required to meet in regulations to be laid before, and approved by resolution of, both Houses of Parliament;

(d) have the power to terminate the contractual arrangements at any time if the provider fails to meet the key performance standards;

(e) agree with the provider a percentage of the contract fee that must be returned to the Exchequer on the occasion that the provider fails to meet the key performance standards.’.

Amendment 34, in clause 3, page 3, line 5, at end insert—

‘(8A) Supervisors may not be officers of any provider of probation services that is under investigation by a UK police force, the Serious Fraud Office or any other UK law enforcement agency.’.

Amendment 22, in clause 3, page 3, line 6, at end add—

‘(8A) Offenders released under this section shall be supervised by staff working for the National Probation Service or staff seconded from the National Probation Service to other providers of probation services.’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

This is the main group of amendments today and I will therefore spend a bit of time on them. After that, I hope that we can motor a bit. The group deals with which providers should be permitted to provide supervision services and under what provisos. I tabled amendments 33, 34, 30 and 31, but amendments 20 and 22 were tabled by the right hon. Member for Dwyfor Meirionnydd and I do not have much to say on those.

There has been much debate on how little detail the Government felt it necessary to provide on some of their proposals. Amendment 33 goes some way to fleshing out what arrangements between the Secretary of State and a contracted provider should look like. It deals with the quality of contracts, accountability of providers and value for money for the taxpayer where services are contracted out. It would provide that contracts may be agreed with private sector providers only when the following conditions were met: all providers must be subject to the Freedom of Information Act; contracts must be limited to five years; key performance standards on which the provider will be tested must be laid out; and contracts must include an adequate break clause or clawback clause.

The exceptionally poor performance of the MOJ in handling contracts has been well documented. For those members of the Committee who are not acquainted with Jajo the rabbit, he was—and probably still is—the pet rabbit that was successfully registered as a court translator and booked in for shifts after the Ministry mismanaged its language service contract, a matter that is still ongoing.

We have already touched on the Ministry’s shambolic performance, but I will recap the assessments given of the process. The chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), said:

“Serious flaws have been exposed in the Ministry’s procedures and policies; the process was a shambles.”—[Official Report, 20 June 2013; Vol. 564, c. 295WH.]

He continued:

The Ministry’s naivety at the start of the process appears to have been matched by its indulgence towards underperformance against the contract once the new arrangements came into operation” and he reported that the Ministry had an

“apparent inability to monitor and drive better performance.”—[Official Report, 20 June 2013; Vol. 564, c. 299-300WH.]

Those would be swingeing criticisms from any Select Committee and we all know that the Chair of the Justice Committee is nothing if not emollient and fair in his judgment; I have certainly not heard him make comments of that order before.

The Public Accounts Committee summed up the same saga by reporting:

“The Ministry was not an intelligent customer”.

We are now dealing with the fallout of another contract that was mismanaged for years, with two tagging providers being allowed to overcharge the taxpayer by millions of pounds to tag offenders who were back in prison, abroad or dead.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Would the hon. Gentleman care to remind the Committee which Government were in power during most of the years of that alleged mismanagement?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 2:30 pm, 28th November 2013

That is an easy point to make. [Hon. Members: “It is true.”] Good heavens. The Minister has woken up his Back Benchers for the first time in two days. Let us have a discussion on that point. If those same companies have been found wanting to this degree—I will come on to this in some more detail later and so hon. Members can marshal their arguments and come in then—let us be cautious about what we do now. Let us not run headlong into wholesale privatisation with people who have been proven time and time again to fail. There are serious questions over whether the MOJ has the capacity to manage such a huge sell-off of a service as the Government are proposing.

If the Government are determined to press on with their reorganisation, the first thing they need to get right is the procurement process and contracts. Amendment 33 aims to make the Ministry a more intelligent customer this time round. The first condition is compliance with the Freedom of Information Act. Although the Act provides for supply chain companies to be considered as holding information on behalf of public authorities, we know that contracted providers in the justice sector are not subject to anywhere near the same transparency requirements as publicly run services. Private prisons are not subject to FOI in the same way as public prisons. As outsourcing is stepped up, more and more information about public services and public money is being pulled out of the public domain. With the backdrop of the tagging scandal it is safe to say that companies are not always forthcoming about the things that they are up to.

The Information Commissioner asked this question of the Justice Committee last year:

“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”

The Prime Minister once promised that this would be the “most transparent Government ever”. Two years ago he spoke about the power of transparency and why we needed more of it. He said:

“Information is power. It lets the people hold the powerful to account” and it should be used by them

“to hold their public services to account”.

Section 5 of the Freedom of Information Act 2000, referred to in subsection (a) of our amendment, affords the Secretary of State the power to designate as a public authority any person deemed to be exercising functions of a public nature. I am sure the Minister would agree that there are few things of a more public nature than responsibility for public protection. Providers are bidding to take on that responsibility and the financial rewards they hope will come with it, and they should without  question be expected to take on the duties of transparency and information sharing that come too. The public should be able to ask about how and how well the service they are paying for is being run. The Government have acknowledged in their target operating model that companies should be required to assist the MOJ in its FOI obligation but have mentioned no plans to make providers responsible in their own right.

Community rehabilitation companies, if they come into being, will sit at the centre of the criminal justice system on limited contracts and manage the day-to-day protection of public safety. The Government have already acknowledged to the Joint Committee on Human Rights that they consider companies providing probation to be exercising public functions as far as human rights law is concerned. So why not information law? I know the Government are consulting on invoking section 5 to make a possible list of bodies such as housing associations into public authorities. I understand it was a commitment in the coalition agreement as well. We believe the Minister should add community rehabilitation companies to that list.

The Labour party, and in particular my right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Justice Secretary, have pledged that the next Labour Government will deal with this issue by bringing companies providing public contracts into the scope of FOI legislation. The Minister has the opportunity to get a head start. I should be interested to know whether that is the intention. Of all the requirements here, that would seem to be the most basic.

Subsection (b) of the amendment would restrict the length of contracts to a maximum of five years. The benefits of that are clear. The market the Government are seeking to create in probation will be flooded with new, inexperienced providers. A guarantee that they can bed in for the next 10 years without any competition or freedom for the Department to take their custom elsewhere is not the best message to send. Public providers operate year to year with uncertainty over their budgets and smaller specialist providers such as women’s centres are often left uncertain as to whether they will exist in a few months’ time. The amendment would leave a significant amount of certainty built in, comparatively, for those seeking to bid.

Democratically, the limit would prevent the Government from tying the hands of a whole future Parliament by signing contracts that long outlast their right to make decisions. A five-year limit is competitive and would allow for the regular renewal and improvement of contractual arrangements. In a contracting exercise as uncertain as this one, where the performance of the providers is far from guaranteed, the amendment would give a cut-off point from which the Government could start making improvements and contracting on the basis of what has worked.

I will give two examples from my local experience. The first is the Minerva project, which I mentioned this morning. It is funded by the London probation trust and, as a consequence of the Government’s proposals, its funding will expire in March next year. Those working for the project know nothing about their future funding. The project has other funders, but by poor coincidence, lottery funding is ending at the same time. From 1 January the project will have to think about laying off staff, because it will need to give adequate notice.

The Government paint a rosy picture that there will somehow be a mixed economy of large private companies employing small voluntary organisations. First, the system already works; the probation trusts already work closely with the voluntary sector. Secondly, the system has been fractured and I doubt, given the poor standards and the cost-cutting that one sees with these monolithic multinational companies, that there will be interest in projects such as Minerva.

Equally, I look at how public authorities are operating. My local authority contracts to Serco, mostly on waste and street cleansing operations, and it has suddenly decided—it did so first on the basis that it believed in public tendering—unilaterally to extend those contracts by six years. That is happening all the time. What purport to be competitive tendering processes turn into monopoly or near-monopoly suppliers making themselves indispensable or so reducing the capacity of public authorities to tender that they continue as unitary providers, almost without limit and with nodded-through automatic renewals. If that is what we are looking towards with the clause, asking for a five-year tendering process is not unreasonable.

We come to the key performance measures and the inclusion of break and clawback clauses. After G4S’s failure to deliver Olympic security, discussions on how much it would pay back lasted more than a year and the company spent £8.5 million on lawyers to support those negotiations. A break clause is self-explanatory common sense. When a contractor is failing miserably to provide the contracted service, the taxpayer should have the right to stop paying and look for effective provision elsewhere. Providers need certainty, and there must be strict criteria on which a break is permitted. That is why we would require the Secretary of State to set out the performance standards clearly and in statute.

I do not know whether this is because of the symbiotic relationship that the Ministry has, but the levels of fine for the failure of the interpreters contract were about £4,000. That was a pitiful and minimal sum of money, but whenever one queries these matters, one is told that it is better to negotiate and to try to agree a way forward with the providers. We have public providers that are constantly under the cosh and morale is at rock bottom, because of the way they are treated, and private providers that are constantly feather-bedded. The amendments offer basic safeguards that the Government should provide the taxpayer as standard in decisions to tender out a public service at their expense.

Amendment 34 would ensure that companies

“under investigation by a UK police force, the Serious Fraud Office or any other UK law enforcement agency” were not permitted to bid for probation contracts. I am surprised to have to table an amendment like that to a Bill in this House. The Minister should be able to see the need for the amendment. If it is not agreed, that runs utterly in the face of any reasonable standards of public probity.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I do not know. We are moving into US-style schemes in which large companies can mitigate their offences by payment of fines. That is in the context of admissions of guilt, of public censure and high levels of financial penalty. None of that applies here. What seems to apply here is that the day before it attends a Select Committee, G4S could say, “How about £24 million?” The Secretary of State is absolutely right to refuse that offer, but the climate that allows that offer to be made is one of “We are all mates here together, aren’t we? Can’t we settle this quietly with a quick £24 million and move on?”

I do not think the Minister realises just how low in the public esteem his Department’s tendering and contracting strategy has sunk. It is a pretty basic criterion for the fitness of a company to run a service in the criminal justice system. Members will be aware that two of the key players in the potential bidding process for “Transforming Rehabilitation” are currently under investigation by the Serious Fraud Office. One of them is also under investigation by the Metropolitan police for the handling of another contract.

The Secretary of State does not appear to think that is reason enough to prevent them bidding for more taxpayers’ money, as he will not, as we call on him to do, bar them temporarily from the process until they have been given a clean bill of health. I hope that hon. Members on the Government Benches agree that companies under investigation for criminal activity by the police or the SFO should not be permitted to bid for public contracts until or unless the investigation delivers a clean verdict. I hope the Minister will explain why the Secretary of State does not also believe that should be the case.

I am not going to labour the point but I want to put it on the record. This is not an Opposition prejudice against private companies; it is not even a prejudice against those particular private companies. It is empirical evidence of the serial failure in all types of Government contracts of those particular firms.

We have the tagging saga. The Secretary of State, under conditions of market sensitivity and great secrecy, had to come to the House in July and make the announcements about Serco and G4S on the tagging contracts. Of course, G4S would not agree to the terms the Minister had set out. That led to the admissions of overcharging and the crafty offer from G4S.

I picked up the Evening Standard on the way home last night. Almost more regular than a feature about Boris and what a good job he is doing are stories about what the Public Accounts Committee, Serco and G4S are doing. Last week we had the revelations from the BBC about Serco’s running of the community payback schemes across the capital. They found that service projects were not properly supervised and there were inaccuracies in reporting cases of offenders not attending such schemes. There were insufficient resources to ensure offenders on so-called community payback projects were properly supervised. A whistleblower told the BBC,

“There are not enough projects and there are not enough staff. The projects we have are oversubscribed.”

The BBC reported that there have been delays and inaccuracies in the reporting of occasions where offenders have breached their sentences by failing to attend payback  projects. The Chair of the Public Accounts Committee, my right hon. Friend the Member for Barking (Margaret Hodge), takes that very seriously.

It has also been said,

“We're now relying on Serco…and that information is often incomplete or it’s late, or it’s of dubious quality.”

Are those the sort of people that the Minister wants to run these serious and important contracts?

The article in the Evening Standard stated:

“The powerful Public Accounts Committee will take a detailed look at Serco’s work after whistleblowers alleged serious failings. Committee Chairwoman Margaret Hodge told the Standard she will also refer the matter to the National Audit Office”.

That comes only days after the tagging contract scandal, and only days after the Secretary of State rightly cancelled the privatisation of three prisons because the only alternative was to let Serco run them. I am happy to give the Secretary of State credit for such actions, but I am not happy that he is either unwilling or unable to see that there are problems with those companies. The companies admit the existence of those problems by dismissing or quietly getting rid of their senior officers, but such problems show up not only in the MOJ but across local government and the health service. The Minister may well be aware of the Care Quality Commission report this summer on the out-of-hours service in Cornwall and the Isles of Scilly, which highlighted that there were

“not enough qualified, skilled and experienced staff to meet people’s needs.”

That contract was with Serco, which was also accused of falsifying records to make the service appear faster than it was. Serco admitted that it had done so, and it apologised. Again, the PAC investigated that situation. The CQC report noted that a quarter of staff had not completed mandatory training. Although Serco said that its GPs received formal clinical supervision, not all staff had received regular appraisals. Inspectors noted:

“The provider did not have an effective system to…assess and monitor the quality of service that people receive.”

I could go on about contracts around the country.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am not surprised that the Minister does not like listening to what I have to say, because it is uncomfortable to hear. Whether in the health service, the MOJ or anywhere else, the failings are the same. They are caused by a lack of professional attitude and a profit-driven culture. That is bad enough in staff who are picking up litter; it is pretty bad in a manager of local health services; and it is extremely serious in a manager of serious, violent and dangerous offenders. I hope that the Minister will take the matter terribly seriously.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Before the hon. Gentleman gets too far up on his high horse, let me remind him that the previous Labour Government negotiated the contracts of which he is being so critical. The previous Labour Government failed to notice that there were any problems with those contracts. This Government have noticed that, conducted an audit and made a reference to the Serious Fraud Office.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I do not remember the previous Government being involved in the wholesale privatisation of the health service, and I do not remember them letting the community payback contract to Serco. That is not the point, however. One reason why such matters take so long to come to public attention is that there is deliberate subterfuge, which has now been admitted: falsification of records, hiding records and false reporting. The Minister told the Committee this morning that it would be for prison governors or the courts to make judgments about providers, but that relies on their having accurate and honest information. All the evidence shows that, in contract after contract, that is not the case. Rather than dwelling on whose fault it was at any point, let us take action to improve the current situation.

I have made that point, and I will move on to amendments 30 and 31, which should be less contentions. Amendment 30 is technical to allow amendment 31 to have effect. Amendment 31 deals with providers of supervision for young offenders, and, more specifically, for the transition of those who are eligible for adult supervision arrangements after release. Clauses 3, 5 and 7 provide that young offenders who are 18 by the time of their release will be subject to adult supervision requirements as provided for under this chapter. The amendment is designed to clarify the transition arrangements when an offender enters custody as a child but leaves it as an adult eligible for adult supervision. Clause 7 makes it clear that a young offender who leaves custody at 18 may be supervised by either an officer of a provider of probation services or a member of the youth offending team, but the clause applies only to young offenders serving a detention and training order. The amendment seeks clarification that YOT supervision will also be available on release for youth offenders held in custody under different sentencing arrangement, such as those sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Will the Minister clarify whether YOT supervision will be available for all young offenders leaving custody, and can he assure us that the Bill currently provides for that, or will be amended if necessary?

Paragraph (b) of the amendment is concerned with the process by which decisions on when to transfer a young offender from YOT supervision to a new provider will be made. The Government’s target operating model dictates:

“The national probation service and youth offending team will be responsible for making the decision on whether an offender who is sentenced as a juvenile but is 18 or over at the point of release should be supervised by a CRC or the NPS or whether they should remain with the relevant YOT, and for making the arrangements for any transfer. The decision to transfer a case to the NPS or CRC (or not) will remain a local decision based upon the needs of the young person.”

It is welcome that the Government have seen the importance of the youth offending team being part of that decision, but there is still a lack of clarity as to how the decision will be made and who has the final call.

During the debate in another place, when noble Lords sought assurance that the transition of young offenders would be managed by youth offending teams, the Minister’s colleague, Lord McNally, said:

“That is one of the things that I want to think about. I hope that the two bodies”— that is YOTs and the probation service—

“concerned would make a practical decision about the needs of the individual, but as the noble Lord, Lord Beecham, said, if that was not available, who would be the judge? Would that have to go back to court? I will think about that, and if there is a gap we will fill it.”—[Official Report, House of Lords, 5 June 2013; Vol. 745, c. 1195.]

We recommend—the amendment provides for this—that control over the transition of a young offender should be managed by the youth offending team that has the expertise in working with them. It is a small clarification, but we believe that it will be operationally important to ensure that transitions are expertly and easily handled.

Finally, would the Minister be happy to update the Committee on the Government’s thoughts on the issue, and possibly consider clarifying the process for the decision? Dependent on that, I do not intend to press amendments 30 and 31 to a vote, but I am keen to press amendments 33 and 34. I referred earlier to the two amendments tabled by the right hon. Member for Dwyfor Meirionnydd, so I do not propose to address them further now.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I rise to speak to my amendments, but also to indicate my support for amendments 30 to 34, tabled by the official Opposition. If the Committee divides, I am happy to vote accordingly. I also should have said that it is a pleasure to see you back in the Chair, Ms Dorries.

Amendment 20 is self-evident. It would ensure that it is probation trusts or the national probation service that undertake the supervision of persons serving 12 months or less. Probation trusts have not been invited to bid for this work because, it is said, the schemes will all be based on payment by results, and payment by results will not be a good use of taxpayers’ money. Instead, as we know, private companies will be able to use reserves or profits to subsidise the schemes until it has been evaluated whether or not they worked.

There is a little evidence on payment by results. If we look at the five recent drug pilot schemes, they show that fewer people completed the drug rehabilitation courses under payment by results than before payment by results was introduced. That is not an encouraging situation. However, there has been a modest increase in persons who abstained from drug misuse, although statistically it is too small to be of relevance. There has also been very little impact on getting drug users into accommodation. The information on payment by results from Her Majesty’s prison Peterborough and elsewhere is also patchy, and the two probation payment by results schemes in Wales and the midlands were abandoned before they began. Payment by results as the basis for justifying competition is therefore untried and untested.

By contrast, we all know that the probation service works. The latest reconviction figures are 58.5% for those serving less than 12 months and getting no supervision—the situation about which much of the Bill is concerned and about which there is unanimous agreement that something should be done; 36.2% for those serving between one and four years who are supervised by probation; and 30.7% for those serving between four and 10 years who are supervised by probation.

It is therefore likely that that there would be a significant decrease in reoffending among prisoners with short-term sentences if the supervision work were to be undertaken by the probation service. That view is statistically supported and is common sense. It is said that that decrease could be as much as 20%, or more. That would have a dramatic positive effect on the situation.

We also know that the probation service has a good track record of discharging orders for good progress. If a person under a 12-month period of supervision has demonstrated—by, say, the six-month mark—that they have complied with all conditions included in the order, a reduction in the term can be applied for. As I have argued previously today, early discharge of orders would have a substantial effect on costs. The overall case load of the probation service has fallen slightly in the last couple of years, again creating a small pot of money that could be dedicated to the task of supervising that group of offenders.

There is overwhelming evidence that the probation service is performing to a very high standard. Figures produced by the National Offender Management Service in July 2012 detail the annual performance ratings of the probation trusts over the previous year. Performance is measured using an assessment framework that is known to the Committee, so I shall not go through it. Suffice it to say that the figures show that no probation trusts are in band 1, which is the rating for serious concern about performance; none are in band 2, which is rated as requiring development; 31 are in band 3, which is rated as showing good performance; and four are in band 4 and have been awarded the rating “exceptional performance”.

Northumbria Probation Trust is one of the four areas graded as having exceptional performance; the others are Humberside, Durham Tees Valley and Warwickshire. The Northumbria trust has a budget for 2012-13 of £27.4 million, which includes a cut of £1.8 million on the previous financial year. During 2011-12, Northumbria exceeded many of its national targets. The figures show that 88% of offenders successfully completed their community order or licence, compared with a target of 80%; 252 offenders successfully completed drug rehabilitation requirements, set against a target of 225; and a further 88 offenders completed alcohol treatment requirements, against a target of 50. The figures also show that 88% of offenders secured suitable accommodation by the end of their sentence, against a target of 83%; 34% of offenders were referred to an education provider and achieved an award, against a target of 21%; and 100% of pre-sentence reports were completed within the required time scales, set against a target of 90%. In addition, 687 offenders retained employment for at least four weeks, against a set target of 400.

The figures for all trusts also show that victim feedback in 2011-12 was positive in 98% of cases, that 49% of offenders were in employment at the termination of their orders, that 89% had accommodation and that 82% of orders or licences were successfully completed during the period. Completion targets were also met or exceeded on the vast majority of probation programmes. From a survey of 21,130 offenders in 2001, 76% gave positive feedback.

On reoffending, then, the actual rate was better than the predicted rate nationally and, in all but five probation areas, three quarters of orders or licences were successfully  completed. The service was set a target of 90% for timeliness of court reports and was successful in 99% of cases. The service also achieved a successful completion rate of 81% of participants on the sex offender treatment programmes, exceeded targeted completions of domestic violence interventions and hit targets on other offender behaviour programmes.

That is a long list of figures, but it is right for me to give them, because they show why the probation service won a prestigious award in October 2011—the British Quality Foundation gold medal for excellence. The award is given to an organisation in recognition of its outstanding continued commitment to sustained excellence over a number of years.

Supervision by probation trusts would also benefit from the localism agenda in the probation service as a whole, to deal with arrangements with the voluntary sector and the police, and through electronic tagging, which will be used predominantly for that type of offender in the private sector.

In conclusion on amendment 20, the probation service is best placed to deliver supervision of the short-term prisoners group—it has an excellent record for reducing reoffending, it is hitting all its targets and it is winning awards. On Second Reading, the Minister asked me to produce figures for what that would cost, but the work is still ongoing, although I hope before the conclusion of our proceedings to give a reasonable figure from a far more eminent number cruncher than I can ever aspire to be. For now, what I am saying is that if this morning we had been able to persuade the Government that in many cases it would be possible to define the precise term of the engagement of supervision—the supervisors—and that in many instances there would be a need to determine short of the 12-month period, a huge amount of resource could have been kept, and that would have gone into extending the remit of the probation service. That is beyond doubt—it is absolutely common sense.

Amendment 22, in effect, is about staff being seconded from one area to another within the service. In brief, it is essential for probation staff to have confidence in any proposed new structure, but at the moment such confidence is not there. On the first day of our deliberations, the Minister went out of his way to talk about some of the staffing arrangements, which was helpful. Nevertheless, I want to place on the record a short introduction to the problems still encountered.

Staff fear that they may be made redundant, that they face cuts in terms and conditions, that their case loads will be higher, that they will have few colleagues, that their pensions will be affected and that their employment status will suffer greatly. The Minister will tell me that he has already given answers to some of those matters, and I appreciate that, but I hope that he will place something on record.

Amendment 22 would ensure that all staff affected by the “Transforming Rehabilitation” proposals would be employed primarily by the national probation service—basically, as civil servants—and that any staff who joined other providers would be seconded to those providers, rather than transferred arbitrarily and almost certainly against their will. That would ensure continuity  of terms and conditions and allow for staff, should vacancies occur, to apply to go back to the national probation service should they choose to do so.

Such a provision would go a long way to allay the fears of staff that their terms and conditions, their continuity of employment and therefore their pension provision will not be adversely affected. Amendment 22 would also ensure that everyone under the “Transforming Rehabilitation” proposals, no matter for whom they are working in the future, is treated equally and without discrimination.

To change the status of a member of staff’s terms and conditions or even the nature of their employer without proper consultation and guarantee of staff’s equal status with their counterparts in the probation service would be unfair and discriminatory. Amendment 22 would allow the transfer of staff to go ahead in the future—following a pilot, I hope—and allay many of the fears of staff involved in the highly stressful transfer procedure.

I appreciate that the Minister has responded in part to some of those concerns, but I will be grateful if he could address them in his closing remarks.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North 3:00 pm, 28th November 2013

It is a pleasure to serve under your chairmanship this afternoon, Ms Dorries. On Tuesday, I spoke at length about the serious implications of the failure to properly pilot the reforms to probation services. I will not repeat myself, but I will build on something that I and other hon. Members, including my hon. Friend the Member for Hammersmith, mentioned.

As we all know, private companies that deliver public services are exempt from the requirements of the Freedom of Information Act, and the Information Commissioner has no power to investigate private contractors. He cannot serve information notices that require contractors to supply information for an investigation or take enforcement action if a contractor fails to comply with its contractual obligations. Bluntly, it is nigh on impossible to get our hands on the details of much of what private companies are up to with public money. Amendment 33 seeks to correct that oversight.

I have only been in the House since May 2010, but I have been concerned for many years—through the years of the previous Labour Government and beyond—about the tremendous lack of transparency around the use of public money when it is handed over to private companies and other organisations. My anxiety has increased considerably since the coalition Government came to power because every year they have distributed billions of pounds of public money from the public sector into the private sector. There are good grounds for anxiety, because many of the vital services on which we rely on a daily basis—from waste management and highway repair services to schools, hospitals, early years care, justice services and everything in between—have been contracted out to the private sector and other providers. No public service is safe from the Government’s zeal for outsourcing, which they pursue regardless of whether evidence supports that model of provision.

The Justice Secretary’s efforts to extend supervision to offenders sentenced to less than 12 months, with 70% of probation work scheduled to be contracted out to new private and voluntary providers, confirms that the  Government’s enthusiasm for outsourcing continues. But his efforts also represent the scale of the problem. Should he continue to blindly push these reforms of probation services—and he has clearly indicated that he will—we risk jeopardising public safety unless we accept this important amendment, which would designate all providers of supervision as public authorities and would subject them to the provisions of the Freedom of Information Act.

I support new ideas in justice and offender rehabilitation, and I am a firm believer that innovative work can and should take place within the probation service. It is likely that innovation will require a mix of public, private and voluntary sector provision. But it is important that new ideas or models are tested first so we learn lessons from the mistakes and shortcomings that are inevitable in the early stages of design. A crucial part of that process is freedom of information—the lifeblood of progress and improvement. Without the transparency that is provided by the Freedom of Information Act, we will not be able to share what succeeds to bring new ways of working into the justice system. Critically, unless providers are designated as public authorities in accordance with the Freedom of Information Act, we will not be able to discover what does not work. That is a daunting prospect.

Although I would be the first to acknowledge that the freedom of information provisions can, at times, be cumbersome, I am in no doubt that they serve a greater good. Freedom of information requirements allow those on the outside looking in—the taxpayers who fund service provision—to delve into the details and scrutinise the outputs to ensure that they are getting value for money through providers that are fit for purpose. The provisions allow politicians, the media and other organisations to scrutinise what those companies are up to. We are offering Government Members a real gift today, which they will be able to use to research and publish information about any of the private companies that, in all likelihood, will be delivering services commissioned by the Labour Government when we come to power in 18 months’ time.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

Conservative Members will love it. They will be able to use the provisions to find sticks with which to beat the future Government. It is very much in their interest to vote with us today. I may not convince Conservative Members because they will say that commercial confidentiality must be retained at all costs, but perhaps Liberal Democrat Members—at least one is here—would love the chance to exploit the new transparency that we are offering and join us in the vote.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Not only is he in the Room, I note that he features the “Save Probation” campaign on his constituency website with links to its admirable blog, so I am sure he is thinking very carefully about what we are saying.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I am grateful to my hon. Friend. Perhaps the hon. Member for Eastleigh would like to intervene to tell us about his support for the probation  service and how he would like there to be even more transparency in future with the private companies. Sadly, he declines to show his support regardless of what his website says—

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Order. Can we return to the point, please?

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

Liberal Democrat, Conservative and other hon. Members will know that with around £100 billion of taxpayers’ money being spent each year on the provision of public services by the private and voluntary sector, it is essential that that expenditure is properly evaluated and that service providers are held to account for their actions.

It is a core tenet of our democracy that taxpayers can access the information to do that thoroughly and rigorously. Under the current Government, the number of services run by the private sector is growing. At the same time, there is a parallel growth in the size of the democratic deficit, so not only is more taxpayers’ money being entrusted to companies that may have limited or no experience of such service provision, as will be the case with the probation service, but there will be an increase in the number of activities undertaken by Departments that are not subject to freedom of information legislation. As a result, the number of contracted services that are unaccountable and lacking full scrutiny is also increasing.

That leads to a broader issue. We already know that the probation service is an example of good public service provision in an extremely difficult area. Tempted as I am, I will not remind the Committee that the probation trusts are all said to be delivering a good or excellent service. Like the goose that laid the golden egg, the probation service has managed to oversee a drop in reoffending rates to 34.2%, after a decade of steady year-on-year increase, and has made savings of around 20% over the past five years. It has helped to reduce crime rates while maintaining public protection.

As things stand, private sector companies responsible for delivering public services can hide behind a cloak of commercial confidentiality. Billions of pounds of taxpayers’ money are being awarded to those companies under contracts that are barely transparent, yet, they are free to exploit the benefits by gaining detailed knowledge of successful public sector bodies through the submission of freedom of information requests. This same information can then be deployed to undercut, imitate or outbid the very same public sector bodies when contracts are tendered or renewed.

That leaves companies in the strongest possible position to exploit that knowledge but, more importantly, enables them to hide what they are doing with large sums of public money. The fact that one contractor admitted overcharging the Ministry of Justice and then offered to return the cash prompts a question about the level of scrutiny applied to such contracts, whether by this or a previous Government.

The Ministry of Justice was stripped near-naked of resources by the poor settlement from the Treasury and may no longer have the ability, or perhaps even the desire, to scrutinise its contracts effectively. That is all the more reason to require companies that spend taxpayers’ money to answer directly to them by being compelled to provide responses to questions about how they are doing. They should be open to freedom of information questions.

Similarly, public and private providers will ultimately be responsible for delivering equivalent services, albeit to offenders with different categorisations of risk. So why should they not be subject to the same scrutiny? What would happen in the unlikely event that some form of public partnership won a contract to deliver probation services? Would they still be subject to the freedom of information provisions when a private company rival for future contracts would not? The specifics of the particular environment of supervision and the potential vulnerabilities of those involved, not to mention the potential risks to the wider public when things go wrong, mean that transparency and accountability in the system are even more essential than in other public services.

Private contractors providing these services should undoubtedly be held to the same standards of responsibility as state providers and I do not believe that anyone in this room would argue to the contrary. It is logically coherent, then, that the rights to information about the regimes and establishments should also be equivalent. After all, this is about value for money but also sharing best practice. It is only right that all providers of probation services, be they public, private or voluntary sector, are subject to the same requirements. Only then can we reap the rewards of sharing good practice across probation services. However, many private sector companies simply refuse to comply by publishing detailed information about how they operate. This is in stark contrast to the public sector, where the amount of available data has rightly expanded hugely.

So that there is no mistake, I remind Members that the Prime Minister, announcing measures in 2011 to allow further information to be published relating to the spending and performance data of public services, spoke of the “power of transparency”. Indeed, he went on to assert that “information is power” and even suggested that

“we need more of it.”

This is rare, but I agree with the Prime Minister. We need more of that information, including in the realm of the probation service and how it is managed.

Put simply, many non-public sector providers shelter from open scrutiny, operating behind a screen of secrecy that is simply not compatible with the principles of public sector provision. Such stealth and secrecy cannot be allowed to continue, and certainly cannot be allowed to infiltrate a service that deals with volatile and vulnerable offenders who could pose a danger to the public, were things to go wrong. The amendment, by ensuring that all providers of probation services are designated as public authorities, will ensure that it does not.

It is a fundamental underpinning of our democracy to have such checks and balances in place to ensure that those in positions of power do not act out of turn or beyond their remit. Freedom of information, as prescribed by the Freedom of Information Act, is a central constitutional necessity that ensures Governments cannot exceed their proper scope or authority. As a simple matter of extrapolation, as more and more public services that were once the sole preserve of the Government are contracted out beyond the public sector, it is only right that steps be taken to ensure that the same access arrangements are required of private and voluntary sector  providers. To do otherwise is unfairly to insulate the Government, and their Departments and favoured contractors, from adequate scrutiny and accountability.

One of the major risks that flows from such a position of secrecy is the potential for fraud or corruption. In the remit of public service provision, this is a crime against each and every taxpayer, and the public should be granted the ability to protect themselves against such transgressions by opening up all providers of public services to the requirements of the Act. More alarmingly, in the remit of justice and with specific reference to the probation service, any such indiscretion would be a major risk to public safety. This is a very real risk, as demonstrated by the debacle involving G4S, Serco, the contracts for prisoner transfers and electronic tagging. The Government were potentially over-charged by tens of millions of pounds, the Serious Fraud Office was called in to investigate, and the Ministry of Justice is auditing every contract held with G4S and Serco. Do we really want to take a chance with the probation service? That is exactly what we are doing here—taking a chance with the probation service.

Let us not forget that any similar sloppiness or deceit when it comes to managing offenders could have disastrous consequences for public safety. We must not be fooled into thinking that the underperformance of those companies has been blown out of proportion or taken out of context. As I said on Tuesday, anybody watching the BBC’s “Newsnight” on Thursday 21 November will have been as horrified as I was to hear the stories about Serco, which successfully tendered to be the delivery partner of the London probation trust in delivering community payback services across the capital from October last year. I do not need to repeat the details I outlined in a previous sitting. Suffice it to say that the failings were catastrophic, and the mismanagement prolonged and damaging. None the less, despite mistakes that led to time-sensitive offender records not being updated for extended periods, delaying and often inhibiting the attainment of justice, the contract with Serco to deliver the community payback scheme in London has not been retracted.

It is for such reasons that we cannot afford to overlook the importance of the amendment, which will oblige the Secretary of State to publish key performance standards that must be met by providers, as a crucial safeguard against such calamitous failures being repeated in the delivery of probation services. It will undoubtedly enhance accountability by providing a framework of metrics against which performance can be gauged and any failure identified at the earliest possible opportunity.

In case providers fail to deliver the standards, further provision is made for break clauses, which would grant the Secretary of State the power to act in the public interest and terminate the contract to prevent further failures. Another crucial element of the safeguard in the amendment is the provision for a recuperation clause, which would make the Secretary of State responsible for agreeing with providers a percentage of the contract fee that must be returned to the Exchequer if providers fail to meet performance standards.

The additional safeguards in the amendment are particularly important given the Government’s recent poor track record in commissioning services. Questions such as how much the contracts will cost, what the  measures of success will be, and how small but experienced voluntary organisations will be included in large bidding processes need to be addressed.

The Department’s responses citing commercial sensitivity strike me as nonsensical. Even a rudimentary grasp of economics confirms that full disclosure of information is required for markets to function properly and deliver goods and services efficiently. The Ministry of Justice’s secrecy is very much a source of inefficiency, driven by a desire to minimise expense at all costs, even when the overall goal of successful rehabilitation could suffer as a consequence.

I mentioned on Tuesday that when it comes to contracting, the Secretary of State for Justice has declined to learn from not only the experiences of his colleagues in the Department for Work and Pensions, but the mistakes of his own Department. It is worth reiterating that point. I refer, of course, to the Ministry’s language services contract, which began in 2012 and was branded “shambolic” by the Select Committee on Justice. Coincidentally, the Committee also identified that the Ministry did not have sufficient understanding of the complexities of court interpreting and translation work before it decided to put the services out to tender.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

Sure. Failures to heed the warnings of experienced professionals in the sector, and to put sufficient safeguards in place to prevent service interruptions, were also identified. In short, as the Public Accounts Committee noted, the Ministry was

“not an intelligent customer”.

We want to ensure that there are protections, and that the public can look at the activities of these private organisations that are spending tens of billions of pounds. I see that the hon. Member for Solihull has returned to the room. For her benefit, I will again urge the Committee to back this opportunity for greater transparency. I offer her the opportunity to back our bid for greater transparency and openness by ensuring that private companies are subject to the same provisions as those in the Freedom of Information Act. It would be a benefit to her in future, when she tries to dig into and look at the future activities of a Labour Government.

I think I have exhausted what I was going to say. [Interruption.] If Members wish, I can further encourage the Liberal Democrats to support the amendment. However, I think that their heads are against us, despite what they might say on their websites. I support clause 3, with amendments.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I thank the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Hammersmith for presenting their amendments—some considerable time ago now. I will try to deal with the large group of amendments before us. I hope that the Committee will bear with me as I take each amendment in turn.

Let me start with amendment 30, which would make provisions in section 256AA of the Criminal Justice Act 2003—the section that creates the new post-licence supervision period—subject to a new subsection (8A). A number of the other amendments are based on the new subsection (8A), so amendment 30 is effectively a paving amendment for the rest of the group.

Amendment 31 is about ensuring that the transition from youth to adult services is as robust as it ought to be. Let me say straight away that the Government support that intention. We recognise that the transition between youth and adult services is a potential point of vulnerability for young adult offenders. The difference in services for those in the youth and adult systems has been described as a cliff edge, and as the Committee will be aware, there have been a number of inquest reports and serious case reviews that reference the need for a smooth transfer and good exchange of information, and point to the heightened risk, in this period of transfer.

The Ministry of Justice, the Youth Justice Board and the National Offender Management Service work closely together to help improve support for young people transferring between the youth and adult justice systems. That has resulted in the transitions framework to support workers in the community, the transitions protocol to support workers in custodial settings, and the Y2A—Youth to Adult—portal, which is an information-transfer web-based system.

Proposed new subsection (8A)(a) in the amendment provides that anyone sentenced as a juvenile but released aged 18 to 21, and then subject to the new top-up supervision period, can be supervised in the community by a youth offending team or by a provider of probation services. Under our new arrangements, that would be either the national probation service or a community rehabilitation company, depending on the risk of serious harm posed by the offender. As the hon. Member for Hammersmith made clear, the Bill provides that any offender sentenced to a detention and training order, or a sentence passed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, who turns 18 before they are released from the custodial part of their sentence will be treated the same as other adults. That means that they will receive an overall period of at least 12 months’ supervision in the community.

In respect of detention and training orders—the main custodial sentence for under-18s—there is already express provision in the Bill for top-up supervision to be delivered by either the youth offending team or a provider of probation services, which would, as I say, be either the NPS or the CRC. For section 91 sentences, which are sentences available for under-18s in respect of certain serious offences, there is no equivalent express provision in the Bill.

As section 91 sentences are for such serious offences, only a handful of them will be shorter than two years. It is also harder to be clear about the maximum age at which offenders might be subject to supervision. The amendment gives a cut-off point of 21, but there may be some offenders who are not caught by that. However, we are committed to ensuring that the option for youth offending teams to supervise section 91 offenders during their top-up supervision is provided for. That is consistent with the current situation as set out in the transitions framework. Under the new system, we propose that that should continue, with the NPS and the YOT responsible for making transition decisions and arrangements.

The decision to transfer a case will remain local, and it will take into account the needs of the young person, their maturity and risk factors, in order to minimise risk to the public, safeguard the young person and aim to reduce reoffending. That decision is best left a joint one, rather than the responsibility of a single agency as in  the amendment, as it is important that both youth and adult services reach an agreed position, based on their collective professional opinion. Once a decision has been made to transfer a case, the NPS will work with the youth offending team to establish the appropriate allocation, and will apply the cohort allocation tool prior to the point of transition from youth to adult justice services, to allocate those young people who will be managed to either the NPS or a CRC.

However, in view of our debate today, we will take away the amendment tabled by the hon. Member for Hammersmith and consider whether the outcome of ensuring that youth offending teams are able to supervise the small number of section 91 offenders affected is better achieved by express provision in the Bill. I hope that in those circumstances, he is prepared to withdraw the amendment.

Let me turn to amendments 20 and 22, which were tabled by the right hon. Member for Dwyfor Meirionnydd. Amendment 20 would ensure that only staff working in probation trusts could supervise offenders during their top-up supervision period. Interestingly, the same restriction would not apply to supervision of offenders during their licence period, or offenders sentenced to community orders or suspended sentence orders. Amendment 22 would, by contrast, ensure that offenders could be supervised during the top-up supervision period only by national probation service staff.

As the Committee knows, and as we debated at length on Tuesday, as part of our reforms we plan to replace the 35 probation trusts with a single national probation service and 21 community rehabilitation companies. The vast majority of offenders will be managed in the community by these CRCs. The Committee will be pleased to hear that I do not want to go back through all the arguments made on Tuesday, but I do want to make the point again that by opening up the market to a diverse range of providers, bringing in the best of the private and voluntary sectors and incentivising them through payment by results, we will not only deliver better value for money for the taxpayer but drive innovation and deliver real reductions in reoffending.

The Bill delivers a key components of our reforms: the extension of statutory supervision and rehabilitative support after release to short-sentence prisoners. This extension of support has again been widely welcomed today, but it cannot be delivered in isolation. Only by radical changes to the system for managing offenders can we generate the savings that we will reinvest in extending this rehabilitative support. Put simply, if we keep the current system of probation trusts, there can be no top-up supervision period.

The right hon. Member for Dwyfor Meirionnydd referred to my request to him on Second Reading; I quite understand that he is still working on that, and I look forward to the outcome of his considerations. He will recognise that in the absence of identified ways to pay for this additional supervision, we will all be sceptical when it comes to deciding whether amendment 20 is genuinely designed to improve the Bill or is a wrecking amendment that would wreck not just the Bill, but wider reforms. He has been quite clear and straightforward in his opposition to those reforms, so I entirely understand his point of view; I just do not agree with it.

Amendment 22, on the other hand, recognises our proposal to create a national probation service, and I am grateful for that. It would require those supervising offenders during their top-up supervision period to be national probation service staff, although they might be seconded to other providers of probation services, including, presumably, community rehabilitation companies. It is, of course, important to ensure that those managing offenders have the necessary skills and expertise; we discussed that in debate on a previous group of amendments. However, that does not necessarily mean that they have to be members of the national probation service. We expect to see skilled probation professionals working across all sectors. As I have said, we will place a contractual requirement on community rehabilitation companies to have and maintain a work force with appropriate levels of training and competence.

As the hon. Member for Hammersmith set out, amendment 33 would impose various duties on the Secretary of State, so that he could lawfully make arrangements for an officer of a community rehabilitation company to be a supervisor for top-up supervision. Let me take the conditions in turn.

The first condition is that community rehabilitation companies are designated as public authorities within the meaning of section 3 of the Freedom of Information Act. As the Committee will know, the Freedom of Information Act underwent post-legislative scrutiny by the Justice Committee, and we have three members of that Committee with us. It considered the issue of public services being delivered by private contractors, and did not recommend that the FOI Act be formally extended to private providers of public services. The Justice Committee acknowledged that the existing practice whereby private bodies are required by contracts to assist the contracting public authority in discharging its obligations was “working relatively well”, and recommended that it continue but be kept under review.

In the Government’s response published in November last year, we accepted the Committee’s recommendation and said that we would issue new guidance to public authorities on when it would be appropriate for contractors to share information to help the contracting public authority to answer FOI requests. We aim to publish this revised guidance in spring next year. The Government think that that strikes the correct balance between transparency and avoiding placing unnecessary burdens on private businesses.

The second condition is that CRC contracts will have a maximum length of five years. When we launched the competition on 19 September this year, we proposed that contract length should be between seven and 10 years, with the option to extend for a further three years. We want community rehabilitation companies to take a long-term view of the services that they are delivering. We want them to invest in building, innovating and improving their services, so that they make a difference to reoffending rates. We believe that seven-to-10-year contracts will enable them to do that, and will deliver the best value for money for the taxpayer.

The remaining conditions relate to the performance standards set for CRCs, and the potential consequences if they fail to meet those standards.

Photo of Steve Brine Steve Brine Conservative, Winchester 3:30 pm, 28th November 2013

As the Minister knows, we have discussed the issue many times—[ Interruption. ] Labour Members should pipe down. We have discussed  the issue many times in the Select Committee on Justice. We want companies to have a long-term view of the CRC work, but we also want them to involve smaller providers. Will the Minister be absolutely clear for the record that the Government intend to ensure that smaller providers are involved and are not frozen out of the contracts?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Yes, I can give that assurance to my hon. Friend. He is right that it is important that we involve smaller organisations, particularly those in the voluntary sector. I am confident that not only will those organisations wish to be involved, but other, larger organisations will wish them to be involved.

One of the reasons why it seems advantageous to have a longer contract is to enable larger organisations to give smaller organisations some certainty about future funding, which the hon. Member for Hammersmith correctly identified as an issue under the current system. We are in favour of a mix of different organisations providing the work.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

If that is right, how does the Minister explain the National Audit Office’s response to his consultation? It referred to the failure to achieve that under the Work programme and said that

“the majority came from the private sector. It is likely to require significant efforts by the Ministry for it to achieve its aim of creating a diverse and sustainable market”.

No one believes that the voluntary sector will have a significant role.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

As the hon. Gentleman has heard me say many times, the programme that we are proposing is not a replica of the Work programme. It could not be, because the model must work within the criminal justice system, which is different. He also knows that our view is that it is important to engage in two important processes to ensure that the voluntary sector and smaller organisations are properly engaged: rigorous bid assessment and contract management. We need to do both those things well to ensure that bids that are brought to us that involve smaller, voluntary sector organisations enable those organisations to thrive throughout the contract period.

I was moving on to talk about the other conditions relating to the performance standards to be set for CRCs. In the target operating model, which we published this September, we explained that the Secretary of State has a duty under the Offender Management Act 2007 to issue national standards for the management of offenders. We said that the current national standards, appropriately modified to reflect the sentencing changes in the Bill, would be reflected in the contract services specification.

We made it clear that we will place additional contractual requirements on CRCs, particularly with respect to how they deliver community order and suspended sentence order requirements, and licence conditions primarily associated with punishing or controlling the offender’s behaviour. That is so that we can ensure that those aspects of the sentence are delivered on time and to a high quality. Those bidding to own and run such companies will have flexibility to design and deliver their own services aimed at rehabilitation, but their bids will be reflected in contracts.

In our target operating model, we also explained that we will have a performance framework, with financial penalties for services not delivered on time or to a high quality. It is most certainly our intention that if providers fail to meet the performance standards we set, they could ultimately face termination of their contracts. That is in addition to our payment-by-results mechanism, under which CRCs would lose a proportion of their total fee if they failed to deliver on one of the most important outcomes: reducing reoffending. We published a “straw man” payment mechanism last May, which proposed a system in which poor performance on reoffending would lead to financial penalties and, ultimately, contract termination.

We are continuing to refine the payment-by-results mechanism, alongside the performance mechanism and the contractual requirements for service delivery. We expect to publish draft contracts early next year.

Under amendment 33, the Secretary of State would be expected to set out the performance standards in regulations to be approved by both Houses of Parliament. We do not believe that that approach is necessary or proportionate. The appropriate place for a performance framework is contracts, not secondary legislation. As I have said, the Secretary of State is already required, under the OMA, to publish national standards for the management of offenders. It is clearly envisaged that those might apply to a range of different providers of probation services, as we discussed on Tuesday. The Act specifically requires the Secretary of State to

“have regard to the need to secure, so far as practicable, that the arrangements in force from time to time provide for the national standards to have the same effect in relation to every provider of probation services”.

The Act sets out no requirement for Parliament to approve those standards.

I have sought to reassure the Committee on three fronts: first, that our proposed approach on freedom of information is consistent with the Government’s policy as endorsed by the Justice Committee; secondly, that our proposed contract lengths will help to ensure quality of service and value for money for the taxpayer; and thirdly, that we have already set out our commitments to have performance standards and appropriate penalties for failure, and that the degree of parliamentary scrutiny already approved by Parliament in the Offender Management Act is right. I hope, therefore, that the hon. Member for Hammersmith will not press amendment 33 to a vote.

Amendment 34 would render probation professionals working for CRCs unable to supervise offenders during their top-up supervision period if the CRC is investigated by the Serious Fraud Office, the police or another law enforcement agency. Contrary to the belief of Labour Members, the amendment would not prevent G4S, Serco or any other organisation from bidding in the competition. Hon. Members will recall that our reforms involve the creation of 21 new community rehabilitation companies, which will work alongside the new national probation service to manage offenders. Those companies will start off in public sector ownership and will later be sold to successful bidders in the competition. It is those community rehabilitation companies that will be “providers of probation services” in the new system. They will remain separate legal entities from the organisations that eventually take over the ownership and running of them.

Therefore, the effect of the amendment would be felt only if, at some future point, one of those CRCs itself came under investigation by the police, the Serious Fraud Office or another law enforcement agency. The amendment would leave hundreds of offenders without lawful supervision from the moment such an investigation began, whatever the nature of that investigation or the reasons for it. That would be completely the wrong response to a situation that would be dealt with properly through contract management processes, so the Government cannot accept amendment 34. I must ask my colleagues to vote against it if the hon. Member for Hammersmith and the right hon. Member for Dwyfor Meirionnydd wish to press it to a vote.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am grateful to the Minister for his comprehensive response and particularly for his comments on amendments 30 and 31. In the light of that and particularly the assurance that was given, I will be very happy not to press them to a vote. That is not so much the case with amendments 33 and 34. On amendment 33, we see an absolute need to pin this down, for all the reasons given in the admirable speech by my hon. Friend the Member for Stockton North. On amendment 34, we just heard a combination of scaremongering and sophistry from the Minister. I appreciate that he is in difficulty trying to defend why companies under investigation by the SFO should be bidding for major public contracts in areas of public protection and criminal justice; it is a difficult one, I agree. As usual, he is doing the best he can, but it does not persuade anybody, so we would like to press both those amendments to a vote.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 3:45 pm, 28th November 2013

I beg to move amendment 1, in clause 3, page 3, line 5, at end insert—

(a) Where the offender is under supervision following a custodial sentence for an offence of a violent or sexual nature, a stalking offence or a domestic violence offence, the supervisor must be an officer of a public sector provider of probation services.

(b) In subparagraph (a) “public sector provider” means—

(i) a probation trust, or

(ii) the national probation service.’.

I can be brief on this amendment. It would ensure that any offender serving a sentence for an offence of a violent or sexual nature, including domestic violence or stalking, had to be supervised by an officer of a public sector provider of probation services.

The amendment is concerned with risk management, and the Government’s proposals to carve up supervision according to an offender’s risk category at the point at which they leave custody. Under the new model, the Government intend low and medium-risk offenders to be allocated to new providers, in the guise of community rehabilitation companies, for supervision or offender management. A much reduced national probation service will remain in place to manage high-risk offenders. The flaw in that model, as has been discussed, is that risk is not static. It regularly fluctuates; in fact, at least 25% of offenders change their risk level during their order, so low-risk offenders have a good chance of not staying low-risk.

The Government know that the fragmented model of offender management that they are proposing is a cause of serious concern, particularly among probation professionals. In their response to the “Punishment and Reform: Effective Probation Services” consultation published earlier this year, the Government summarised the concerns as follows:

“Probation Trusts were concerned that the proposal to split offender management on the basis of risk failed to recognise the dynamic nature of risk. They were concerned about the lack of continuity that would occur for offenders in these circumstances and the additional complexity and bureaucracy which would be introduced by the need for additional information exchange and the delays and risks to public safety that could occur if systems were not well integrated. Many of the Trusts stressed the importance of continuity of offender management in ensuring an effective relationship between the offender and offender manager and the difficulties that could arise if this was not maintained. The importance of a clear point of contact for the courts, police and other agencies was highlighted.”

The Minister tried to respond to that point by saying that if there was a move from medium to high risk, management would remain with the NPS. He makes the right noises about the highest-risk offenders being supervised by the NPS, but he ignores the point made by the former chief inspector of probation for England and Wales, Liz Calderbank, who said that she had “concerns” about the Government’s proposals because

“the plans would make it harder to manage medium-risk offenders who commit most serious further offences.”

Probation officers have made that point to me a number of times; I am sure that they have made it to the Minister, too. On the whole, the most serious and dangerous offenders are effectively managed by the probation service. Those who commit most serious reoffences, if I may put it that way, are people in the medium-risk category. We may not have the luxury of being able to wait until they move between categories, and they are the people who pose the greatest risk.

The Minister has assured the Committee that the risks are being taken into account through efforts on issues such as co-location, but the basic concern that offenders will have to be swapped to a different team while posing a high risk of harm is still inherent in the system. The amendment would remove from the equation those at risk of committing sexual and violent offences against the person. The amendment provides for those serving a sentence for a violent or sexual assault, including a domestic violence or stalking offence, to be supervised in the public sector, from their release date onwards. That means that they would not have to be transferred between providers if their risk level escalated.

If the Government are determined to push ahead with their fragmentation of the service, they might consider dividing offenders by offence type, rather than risk level. The amendment would ensure that offenders who posed a serious risk of personal, physical harm to a victim would remain with one provider at all times, in spite of changes to their risk levels. In high-risk cases, the potential for delay, confusion about passing information, or the involvement of unfamiliar staff—genuine risks under the Government’s split model—are risks far too serious to run. The Government should remove the unnecessary possibility of high-risk violent and sexual offenders being swapped between providers, and include them in the work load of the NPS from their release.

While we are on the subject, I ask the Minister to clarify a point. Will supervision for offenders who are released from a short sentence, but who are considered to be high-risk, be provided by the national probation service? We hope that it is not the Government’s intention that all supervision of those released from short-term sentences will be provided by community rehab companies, regardless of the level of risk that those offenders are considered to pose. We hope that is not the case, although it is for all other groups of offenders; that point is not completely clear.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

To pick up the last point first, I absolutely give the hon. Gentleman the assurance that he seeks. The national probation service will carry out a risk assessment of offenders released from short sentences, just as it will for those released from longer sentences, and allocation will be done according to that risk assessment, which means that high-risk offenders will be allocated management by the NPS. I do of course recognise the point that he seeks to make with the amendment, but I am afraid that I do not agree that the best way to deal with the situation is to go by category of offence, rather than risk of harm.

While the conviction offence may well be an indicator of an offender’s level of risk, it is by no means the only indicator. This is particularly important in cases where there is potential domestic violence. There is no specific offence of domestic abuse in statute, and often abusive behaviour becomes apparent through convictions for other types of offence. However, there will undoubtedly be cases in which an offender has not been convicted of a violent offence, or even an offence that in itself involves domestic violence, but probation professionals, police and other agencies have good reason to believe that he or she poses a risk of domestic violence. That category of offender is not captured by this amendment.

Instead, the amendment would sweep up significant numbers of low-risk offenders into the national probation service. Violent offence is not defined in the amendment, but in its current form it is so broadly drafted that it would arguably include offences such as common assault, which the CPS charging guideline says is the appropriate charge,

“where there is no injury or injuries which are not serious”.

Does the hon. Gentleman believe that an offender convicted of common assault involving no injury, who has expressed remorse for their actions and who professionals in the NPS believe poses a very low risk of causing serious further harm should automatically be supervised by the NPS?

This underlines the point that in assessing risk, practitioners need to take account of a wide range of factors: not just the conviction offences, but also previous convictions, age and education, for example, and information from other sources. That is why it is so important that all offenders, whatever their offence, are subject to a risk screening or assessment by the NPS at the outset. As I have made clear, all offenders who are assessed as posing a high risk of serious harm will be allocated to the NPS. It is these professionals who are best placed to assess an individual offender’s circumstances and the level of harm that he or she poses.

The NPS will also be responsible for the management of all offenders who fall into being managed under the multi-agency public protection arrangement. This includes  all those whose offending leads them to become registered sex offenders. It also includes all offenders sentenced to a custodial term of more than one year for a serious violent or sexual offence, as set out in schedule 15 of the Criminal Justice Act 2003. Other low and medium-risk offenders will be assigned to a community rehabilitation company. The new CRCs will be responsible for delivering the sentence, seeking to rehabilitate the offender and undertaking activity which will manage the level of risk of serious harm posed by offenders they hold. That will include working collaboratively with statutory and non-statutory partners, including the police and others. We will place contractual obligations on CRCs to have and maintain a work force with the appropriate levels of competence and training. We have discussed that matter already today.

Photo of Sarah Champion Sarah Champion Labour, Rotherham

I have been trying really hard to listen to the debate and I might have missed this. The Minister spoke about the subtleties of someone committing domestic violence and about people who commit sexual offences. It is because of those subtleties that I would like them to be recognised and placed within the probation trusts. The very fact that they have specific workers just dealing with those sorts of cases shows how specialist the work is. Did the Minister say that people who are convicted of sexual offences will automatically stay with the probation trusts? Or is there a way that people suspected of, or who have committed, those offences could be scored with an extra weighting, so that they would automatically go into the higher-risk sector?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I understand the hon. Lady’s interest in these matters and I appreciate that she has expertise here. The proposal made by her hon. Friend is not to do with probation trusts: we are not currently having that argument again. We are talking about whether the national probation service should supervise these people, rather than community rehabilitation companies. In that, my argument is that the assessment of risk should be what determines that judgment, not which particular offence those individuals may have committed. That is my disagreement with her hon. Friend’s amendment.

As far as those with sexual offences are concerned, under our proposals if those individuals are assessed as high-risk, if they are subject to a MAPPA arrangement or if they are obliged to sign the sex offenders register they will be scrutinised by the national probation service. My contention is that the individuals who we should worry about and expect to be supervised by experts in the management of serious offenders will be managed by those people under our proposals.

The hon. Member for Hammersmith made the perfectly correct point, with which he knows I agree, that risk of serious harm is not static and can change. As he knows, we therefore designed a system that is responsive to significant change. As I set out before, at the point of allocation the NPS can specify case-specific circumstances which could, should they materialise, indicate a raised risk of serious harm and will require reference back of that case to the NPS for a review of risk level. Should new information come to light that indicates that the offender’s risk of serious harm may have increased to high, the CRC will be contractually obliged to refer the case to the NPS which, on the basis of the evidence provided, will form a view of whether the offender should now be transferred to it.

Both the allocation and risk escalation processes, which support the “Transforming Rehabilitation” reforms, will ensure that the NPS retains a central role in assessing the risk of serious harm posed by offenders convicted of sexual and violent offences and of deciding whether this risk of serious harm is such that the offender should be supervised by the NPS. Under these circumstances, I hope that the hon. Gentleman will withdraw his amendment.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I cannot say that I am happy, but I will not press the matter to a vote. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 33, in clause 3, page 3, line 5, at end insert—

‘(8A) Where the supervisor is an officer of a non-public sector provider of probation services the Secretary of State must—

(a) designate the provider as a “public authority”, as defined in section 3 of the Freedom of Information Act 2000;

(b) limit contractual arrangements with the provider for the provision of probation services to a maximum length of five years;

(c) prescribe key performance standards that the provider is required to meet in regulations to be laid before, and approved by resolution of, both Houses of Parliament;

(d) have the power to terminate the contractual arrangements at any time if the provider fails to meet the key performance standards;

(e) agree with the provider a percentage of the contract fee that must be returned to the Exchequer on the occasion that the provider fails to meet the key performance standards.’.—(Mr Slaughter.)

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 11.

Division number 3 Decision Time — Clause 3 - Supervision after end of sentence

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 34, in clause 3, page 3, line 5, at end insert—

‘(8A) Supervisors may not be officers of any provider of probation services that is under investigation by a UK police force, the Serious Fraud Office or any other UK law enforcement agency.’.—(Mr Slaughter.)

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 11.

Division number 4 Decision Time — Clause 3 - Supervision after end of sentence

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I beg to move amendment 35, in clause 3, page 3, line 20, at end add—

‘(5) This section may not come into force until such a time as the Secretary of State has piloted the provisions in one or more probation trust areas, and has laid before Parliament an independent evaluation of the pilot.’.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss the following:

Amendment 52, in clause 3, page 3, line 20, at end insert—

‘(5) The Secretary of State must lay before both Houses of Parliament a report on the cost of implementing the provisions in this section after one year of it coming into force.’.

Amendment 36, in clause 22, page 18, line 32, at end insert—

‘(1A) Section 3 comes into force in accordance with section 3(5).’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

This group of amendments would deal with pre-implementation scrutiny of the Government’s proposals, which, as we have said, has so far been conspicuous by its absence. They propose an option for post-implementation scrutiny. Amendments 35 and 36 would provide that this section may not come into force until such time as the Secretary of State has piloted the proposals in one discrete area and commissioned an evaluation of the impact and performance. The obvious benefits of testing ideas to check how well they work have been well rehearsed in the Committee and I will not revisit them all in detail, although it seems the Government could still use the explanation. My right hon. Friend the Member for Wythenshawe and Sale East put it well earlier this week, when he said:

“If the Government want to proceed down their intended road, they should be piloting their scheme comprehensively in one part of the country to find out whether it works. If it worked, I would have to own up and say that while I had been sceptical, I now understood that this scheme would work and that I would support it. It is unfair of the Government simply to expect a blank cheque, however.”––[Official Report, Offender Rehabilitation Public Bill Committee, 26 November 2013; c. 60.]

The Government have called our efforts to get proper piloting agreed “frustrating and irresponsible.” I am not sure that I have heard asking for evidence-based policy described in quite that way before.

I remind Government Members once again that we are asking for no more than their own Government thought was right when they set up the pilots in Wales and the west midlands. The Minister’s predecessor, the hon. Member for Reigate (Mr Blunt), considered these pilots would be “ground-breaking” and a necessary opportunity to test ideas. Rather than the year’s worth of experience and information from these pilots that we should have available, we are instead being offered nothing but the Secretary of State’s inner beliefs. We remain of the view, and the amendments reflect this, that Governments should not roll out these ideas nationally until they have learned more about their genuine impact on a smaller, manageable scale.

I mention once again the contract for interpreting and translation, which has now been running for two years and which currently—I looked up the latest figures after the last sitting—is fulfilling 88.5% of its contract, which means that about 60 hearings every day face disruption. Almost 10,000 complaints were received between January 2012 and June 2013—39% because the contractor could not supply interpreters, 16% because the interpreter did not attend, 15% because they came late and 4%, the most serious, relating to the quality of interpreting. Moreover, in the second quarter of 2013, there were 23% more complaints than in the same period for 2012. That disastrous contract, which is now resulting in 7% of bookings being made outside the system, should of itself be a sufficient lesson to the Government—despite the Secretary of State’s willingness to “just go for it” on these occasions—to walk before they can run on these matters.

The idea of a blank cheque brings me to the last amendment in the group, amendment 52. It provides that the Secretary of State must report to Parliament on the cost of implementing the new supervision arrangement one year after the section comes into force. The Government are asking Members of Parliament to support the Bill without giving any indication of how much it will cost. Although they have done their best to suggest that the scrutiny of their wider proposals is not at all relevant to the Bill, the apparent intention is to pay for these provisions using the savings from the wider probation reforms, which are savings they do not know for sure they will make, because they have not tested the model.

Ten years ago, as my right hon. Friend the Member for Wythenshawe and Sale East said, it would have cost £194 million to buy support for a group of offenders. The Government’s impact assessment says:

“There will be a cost of providing rehabilitative services to offenders released from custodial sentences of less than 12 months…However, it would be inappropriate to release these costs, as they will be dependent on the outcome of competing offender services in the community.”

Very convenient.

“If we were to publish an estimated figure for the future costs this could put contractual negotiations at risk and prejudice the effectiveness of the competition.”

It is quite astonishing to ask Members to accept a proposal blindly with no information on its cost to the taxpayer or its value for money.

I hope that the Minister will reconsider how much information should be provided to colleagues on both sides of the Committee, to allow them to make an informed decision. If he is unable to make such a commitment—as  I have no doubt he will be— would he instead commit to the terms of amendment 52, which would require the Secretary of State to report to Parliament on how much the new arrangement has cost after one year?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice 4:00 pm, 28th November 2013

I fear I shall disappoint the hon. Gentleman again, but let me deal first with amendments 35 and 36. They would require a pilot of clause 3, which creates top-up supervision, so that top-up supervision could not come into force before it had been piloted in one or more probation trusts. I do not propose to go through all the arguments on piloting, which we pursued extensively on Tuesday, but the Government do have a number of practical and detailed issues with these provisions, which mean we do not believe they are either necessary or in fact workable.

The amendment would not create a separate piloting provision. There would therefore be no power to impose top-up supervision on some but not all offenders in order to carry out the pilot in the first place. In addition, before top-up supervision could be piloted, it would be necessary to have introduced release on licence for short sentences under clause 2. It is unclear whether the intention of the pilot proposed is to have all short-sentence offenders subject to licence, but only some—depending, presumably, on where they reside—subject to top-up supervision.

A pilot would raise a number of further issues. It would complicate the law, making it unclear to the courts what will happen to the offender in any particular case. The courts have a legal duty to explain to the offender what the sentence is and what consequences will result if the offender does not comply. It would also be unclear to victims, witnesses and the public what would happen to that offender.

There are practical issues with the amendment. It is not clear how a geographical pilot would work when offenders are sentenced in one area, but supervised in another, or when an offender seeks to move residence between areas, in or out of the pilot area. The pilot under the amendment would also have to be carried out by a probation trust, taking no account of the fact that the law under the Offender Management Act 2007 allows, as discussed, for the dissolution of probation trusts which, as the hon. Gentleman knows, is the Government’s intention.

Even a publicly owned community rehabilitation company, therefore, would not be able to pilot top-up supervision. In turn, that would mean that top-up supervision could not be implemented. I may be unduly cynical, but I suspect that that is the real reason for the amendment. Despite the stated support of the hon. Gentleman for the extension of supervision, the amendment is designed to stop it happening. I hope therefore that he will reconsider the amendment.

I recognise the concern behind amendment 52, however. Although—as the Government set out in the impact assessment of the Bill—we have carried out analysis to model the potential costs of supervising offenders released from short custodial sentences based on what we know about the characteristics and offending needs of such offenders, it would not be appropriate to share it at this stage, because the way in which we will make the costs affordable is by competing the supervision of low and medium-risk offenders. If the Government were to release  their estimate now, that would influence the bids that organisations make in the competition and inhibit our ability to achieve best value for the taxpayer.

The Official Journal of the European Union notice for the competition of low and medium-risk offenders, however, has made the indicative value of contracts by CPA area clear. I hope in due course that we can make further detail available in both Houses, but I will want to look in more detail at exactly what information we can provide. For example, top-up supervision will involve not only the cost of working with offenders, but the costs of breach sanctions.

On that point, I gently point out that the formulation of amendment 52 is not quite clear on what the Secretary of State would be required to publish. Is it only, for example, the cost of delivering supervision? Should it also include the cost of dealing with breaches, whether that is the cost to probation providers, courts or prisons? As I read it, the provision would require us to lay information exactly 12 months after commencement, when in fact the right time would be when there is 12 months’ worth of data.

I hope that the hon. Gentleman will agree that my questions are important to consider, because amendment 52 is not clear. The Government will of course want to assess the impact of the supervision provisions, in terms of cost and of effectiveness, but the amendment in this form is not the right approach to making that information available. I hope that he will withdraw it.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am riled by the Minister’s uncharacteristic reliance on such pettifogging objections on matters of—

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Pesky details, indeed. I accept, however, the Minister’s assurance that he would like to supply as much financial information as he can. However, piloting is such an important issue in this area and there have been such disasters by going national on completely untried projects that I want to press amendment 35 to the vote.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 11.

Division number 5 Decision Time — Clause 3 - Supervision after end of sentence

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 21, in clause 3, page 3, line 20, at end add—

‘(5) A supervisor may apply to the court for the supervision period to be discharged for good conduct provided that half of that supervision period has been completed.’.—(Mr Llwyd.)

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 11.

Division number 6 Decision Time — Clause 3 - Supervision after end of sentence

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 3 ordered to stand part of the Bill.