Clause
4
Power
to establish probation
trusts
Question
proposed, That the clause stand part of the
Bill.
4.45
pm
James
Brokenshire:
We move on to the power to establish
probation trusts and the authority that is given to the Home Secretary
by order to establish a probation trust, to alter its name and,
ultimately, to dissolve it.
We seem to be continuing the
theme of the top-down approach, in that this would see the Home
Secretary acquire powers that are currently vested in probation boards.
I hope that the Minister will be able to assist the Committee by
answering my questions. If I understood him correctly this morning, he
anticipates that the first probation trust will come into effect in
April 2008. He mentioned the figure 42, which, I think,
was the total number of trusts. Will he clarify whether a maximum number
is envisaged, how they will be set up and what sort of rolling
programme he has in mind for their
establishment? One
thing that is made clear in the explanatory notes rather than on the
face of the Bill is the fact that it is not intended that a probation
trust should be attached to a specific geographical area, which
suggests that trusts will be nationwide rather than being anchored to a
particular locality or geographical area. If that is the case, the
Minister needs to explain how the system will operate. It has been
suggested that there might be competition between probation trusts.
Again, how will that operate if there is no geographical issue? And how
will the framework or terms of reference be encapsulated with regard to
how trusts are intended to operate? If there is no local link, which is
what I understand by the reference to there being no geographical link,
how will the locality issues be assumed within the system?
Many hon. Members have stressed
the need for the provision of local services to maintain the positive
aspects of rehabilitation and local input in the system. However, that
does not seem to be assured in the Bill and the explanatory notes. The
Minister might say that it could be stressed in the contractual
arrangements or the orders establishing probation trusts, but the
importance of local links is loud and clear, particularly for
charitable and voluntary organisations, which are key players.
Maintaining a permanent link is the glue of the system, which is
important to its
stability.
It has been
said that the purpose of the trusts will be specified in the
establishing orders mentioned in clause 4(1)(a). Those orders will
include contracts for probation purposes, but not
exclusively—subsection (2) states that they will include those
purposes. Will the Minister explain what other purposes are envisaged
for probation trusts? Will the purposes extend to prison services, so
that we might have the reverse of the previous situation with the
Prison Service being able to provide probation services? I look forward
to the Minister’s response on that
point.
Subsection
(3)(b) mentions the possibility of other specified activities being
carried out “anywhere in the world”. I wondered whether
that was a new land grab by the Home Office to extend the
extraterritoriality of its powers, but I understand that it relates to
the “service courts” mentioned in paragraph (b)(i). Will
the Minister confirm that that means courts martial or similar, or does
it have another meaning? It is not a phrase that I have come across in
this context, and clarification is needed of what is intended and
whether those courts are why subsection (3)(b) refers to activities
“anywhere in the world”. Are probation trusts to have
that strange extended reach given to
them?
There are various
order-making powers in the clause, and subsection (4) contains the
ability to restrict probation trusts in certain ways by prescribing
limited activities for them. Will the Minister explain why that was
felt to be required? One would have thought that the general
flexibility of the clause would be sufficiently wide to give such
latitude. Is the idea to
create a geographical or other framework? I look forward to confirmation
of the intention behind the
subsection. On a
technical note, subsection (5)
states:
“A
purpose so specified which relates to the making or performance of
contracts includes the carrying out of any activities relating to a
contract of a relevant kind (including activities taking place before
it is made or after it is
terminated).”
The
explanatory notes state that that power is needed to allow probation
trusts to bid for contracts and deal with post-completion issues.
However, bids might not lead to contracts. A bidder does not know
whether they will be successful, because they are tendering. The clause
and explanatory notes seem to suggest that the power is needed because
of activities occurring before a contract is made.
I have a technical
concern—if a contract is not made, as will be the case for
unsuccessful tenders, is there a gap in the wording? Should the
provision refer to prospective contracts as well as contracts? We
require clarification whether the additional power is needed by
probation trusts in order to make bids. Whatever we may feel about the
general nature of the issue, it would be odd from a technical
perspective if a probation trust were to act ultra vires in connection
with unsuccessful contracts, but were protected in relation to
successful tenders. There are certain questions that relate to the
clarity of the intention behind the clause. I look forward to hearing
the Minister’s answer to my specific
points.
Mr.
David Kidney (Stafford) (Lab): As in this morning’s
sitting, I would like to ask the Minister two questions, each of which
takes slightly longer than an intervention would
permit.
First, I remind
the Minister of the debate about consultation that we had on Thursday.
I asked whether NOMS and the local management trust ought not to be
required to make arrangement for an advisory board of some sort, which
could be drawn from a pool of organisations provided by the Bill. Will
the Minister consider whether clause 4 would be the place to make the
requirement for an advisory board? It could just about be suggested
that schedule 1 is the place for that, but this is a bigger issue for
the main body of the Bill, rather than a schedule. I ask the Minister
for clarification on that
point.
Secondly,
probation trusts may be set up by an order under clause 4. What role
does the Minister see for Parliament in the scrutiny of an order that
might be made to set up a trust? My reading of the Bill is that three
kinds of order are contemplated. The first, with which we are all
familiar, is the affirmative procedure order, whereby a draft is
produced and both Houses have to vote positively for the order. The
second type, with which we are also familiar, is the negative
procedure, whereby the order must be published and Members can pray
against it—there may or may not be a debate and a vote on it
later. The third kind is a purely administrative order made by the
Minister. In clause 28, in which the orders are explained, the order
that is crucial to the whole Bill falls into the third, administrative,
category, which I have just described. It is on a par with a
commencement order in that the Minister has only to make it for it to
take effect. Given the concerns that hon. Members have expressed about
the lack of detail in the Bill on the big changes thatare being
made, and the desire of hon. Members to scrutinise the Executive,
should the order not be subject to an affirmative procedure, rather
than an administrative
process?
Mark
Hunter (Cheadle) (LD): I shall focus my remarks on clause
4 and the specific provision for the creation of probation trusts. I
will advance a couple of thoughts as to why I am not convinced that it
is the right way forward, and I look forward to the Minister’s
response. I have two main areas of concern. The first is the disruption
to the service that might ensue from the creation of probation trusts,
and the second is the equally important consideration of a lack of
local accountability.
I
will deal first with the potential disruption to the service. A number
of hon. Members have already referred to the fact that NOMS has been
established for only a relatively short time, since 2000. There is an
argument that it has not had time fully to establish itself before
being changed again. Although there is no general dispute that some
improvement is required, we have concerns that the wholesale changes in
the Bill could result in an increased reoffending rate, rather than the
opposite effect, which it is designed to
achieve.
There is
also the possibility of even more people going missing while on
probation, thus adding to the general confusion. With an already high
reconviction rate among those on probation of 53 per cent., we cannot
afford to risk creating even more
confusion.
5
pm
There are more
effective ways of effecting change without unnecessary bureaucratic
shifts. We have heard from hon. Members about the practice in Scotland,
where community justice authorities of local elected councillors
produce plans on how co-operation will be realised and how service
delivery can be improved and
enhanced.
We are still
not clear about how probation trusts will differ from probation
boards—I hope that the Minister will address that—except
that, according to the papers, they will be more
“business-led”. It would be helpful if the Minister could
say how business people will be recruited to sit on the trusts and
whether there will be some remuneration for the individuals involved.
The case for replacing boards with business trusts has not yet been
made. Probation boards should be community-led and should be a public
service, with the public interest in sight at all times, not their
wallets. The move away from probation trusts will stop that from
happening.
On the lack
of local accountability, probation boards had locally elected
councillors and magistrates on them, whereas, according to the
proposals, probation trusts will not. We need as many connections with
the local community as is practically possible to ensure that the
provision is community-led. Replacing boards with trusts will, I fear,
mean that there will no longer be any local accountability over how
they are run. Local people will no longer have any influence over the
probation service or how probation services in their local area are
run. I am sure that the Minister and right hon. and hon. Members agree
that it is hugely
important that the local community should have faith in its probation
services, in order to help with the rehabilitation of ex-prisoners and
their acceptance into the community after their sentences have been
served. I am sure that
there is also broad agreement that magistrates need to be fully
involved in the process to ensure that courts are not unwilling to give
out community sentences. They need to be assured of their success and
effectiveness. I should be grateful if the Minister would address those
concerns in his
response.
Mr.
Sutcliffe:
I welcome you to this afternoon’s
proceedings, Mr. Atkinson. I acknowledge the contribution
that the hon. Member for Cheadle has made to the debate. I should point
out to him that there is no confusion in relation to the Home
Office—no matter how many times he says it, that does not make
it right. It is clear what we are about and what we are trying to do. A
number of problems are a cause for concern and need to be addressed,
but there is no confusion—we are very clear. In July, the Home
Secretary set out where we were heading in the reform of the Home
Office. The hon. Gentleman will be pleased to know that we are making
good progress, despite the odd hiccup.
The hon. Member for Hornchurch
tried to claim that the issue is about top-down processes and
centralisation, but it is not about that, although I know that I did
not convince him in the debate on clause 3 and that he remains
sceptical. We all agree that we want to achieve the same target, which
is to reduce reoffending, and we also all agree that we should adopt a
whole-community solution to offending. Tackling the problem is not just
a matter for the criminal justice system or the probation service. We
must adopt a whole-community solution if we are to deal with the issue
adequately.
This
morning, I talked about the cost to the economy of reoffending. I say
that in the context of our debate about what clause 4 does. As has been
said, local probation boards will cease to exist in their current form.
Clause 7, which we shall come to later, makes the formal provision for
that. Under clause 3,
“The Secretary of State
may make contractual or other
arrangements”
with a range
of providers, including the voluntary, charitable and private sectors,
as we have said, but that does not mean the end of the public sector.
Duringthe break between Committee sittings, I met
representatives of the trade union Amicus and its members from the
probation service. They were firmly of the view that this was all about
privatisation. I was pleased that I could reassure them that that was
not the case; we then got down into a detailed discussion about the
direction of travel.
The proposal certainly is not
about getting rid of the public sector—far from it. Clause 4
gives the Secretary of State the power to establish probation trusts as
the public sector provider with whom he may make these arrangements.
This will be done, as was said, by an order that will set out the name
and purposes of the trust. It is envisaged that trusts will continue to
be linked to, and named after, their local area. There is no grand plan
to take over the universe; it is about making sure that there is also
local accountability. However, the
order will not limit their activities to that area. So, a trust with
particular expertise in one aspect of service delivery might deliver
that service in another area as well as its own. The detail of this
will not be specified in the order, but will be a matter for the
contracts. Clause
4(1)(c) also enables the Secretary of State to dissolve a trust by
order. There are two main sets of circumstances in which that might
happen. The first is if a trust failed to secure contracts, and the
second is if two or more trusts agree together that they would be more
effective by merging their operations. We would expect that sort of
initiative to come from the trusts themselves, and I make it clear that
there are no plans for mergers from the centre—they would have
to be from discussions between the trusts.
James
Brokenshire:
As yet.
Mr.
Sutcliffe:
The hon. Gentleman says that, but as we go on
to debate the criteria we believe that there may be opportunities.
However, they will have to be identified by local communities and
probation trusts in consultation with the wider community.
Clause 4 then goes on to give
more detail about what the purposes of a trust may include. The main
purpose, as subsection (2) makes clear, is
“the making or performance by the
trust of contracts with the Secretary of State”
for the delivery of probation services.
Subsection (3)(a) confirms that the purposes may also include the
making or performance of contracts with another trust, or any other
party, for the delivery of probation
services.
Mr.
Crispin Blunt (Reigate) (Con): I have been reflecting on
what the Minister has said about mergers and so on. It brings to mind
the plan for police mergers that was eventually withdrawn after the
most enormous amount of lobbying and effort. Can the Minister assure
the Committee that there will be no plans from the centre for mergers
of probation board trusts, and that any representations for changes in
structure will come from the bottom up, not the top
down?
Mr.
Sutcliffe:
I am grateful to the hon. Gentleman for his
intervention. He will know of the evidence heard at the Home Office by
the new Home Secretary. Having listened to the representations made, we
have not proceeded down that route of amalgamations—although
discussions are taking place about how we can get greater effectiveness
and efficiency. As for the merger of probation trusts, we would expect
that to come from the bottom up—the trusts themselves. However,
we are clearly creating the framework for that opportunity to
occur.
I return to
subsection (3)(a), which we believe is important because, as indicated
previously, we arekeen that providers develop partnerships
between themselves, and that not all contracts are held directly by the
Secretary of State. We want to have that innovation, and for people to
work with each other. Subsection (3)(b) clarifies that a probation
trust may
deliver probation services to service courts “anywhere in the
world” in the same way that probation boards do now. The hon.
Member for Hornchurch is quite right about the service court martial.
It is, in fact, a military court and the naval courts have that
facility. Meanwhile, subsection (3)(c) confirms that the purposes may
include other purposes set out in regulations. Subsection (5) makes it clear
that a trust’s purposes may include activities before and after
a contract is in place. In other words, a trust may be established to
bid for a contract in the first place, and may continue in existence
after a contract has ended for as long as is necessary to wind up the
businesses appropriately. It is worth pointing out here that the Bill
does not require all trusts to be created at once; that is not what we
intend to do. As I said this morning, this is no big bang and we will
not rush these reforms in overnight. We want a measured approach,
balancing the need for urgent improvements with the system’s
ability to cope with change.
The hon. Member for Hornchurch
asked me to confirm that the first trusts would be in place after April
2008. I am happy to do that. The others will follow in phases
thereafter. We will shortly launch the consultation on the selection
process and the criteria to be used in determining which board will
move first to trust status. We want to work closely with the service
and with our key stakeholders throughout that period. The process will
be open and
transparent.
James
Brokenshire:
The Minister has kindly confirmed that it is
intended that the first trust willbe established on 1 April
2008. This morning, he mentioned the figure 42. Can he confirm the
basis of that figure, and whether it is intended to cover all the
probation trusts that he has in
mind?
Mr.
Sutcliffe:
That is the number of existing boards, and they
will have to meet the criteria if they want to become trusts. This is
about innovation, and if all42 boards want to become trusts
very quickly, I shall be very happy. There is nothing to prevent that
from happening, but the likelihood is that they will develop over time.
Their growth will depend on their performance, on the criteria that we
have set out and on the skills that they develop.
The hon. Member for Cheadle
asked who will be on the trusts and quoted a document that talked about
their being business friendly. We aspire to involve business in the
context of the wider community, not to prevent people from joining
trusts. When I took over this role, I was concerned that there seemed
to be a view abroad, particularly within the Probation Boards
Association, that we were trying to prevent people from sitting on
trusts and that all we wanted were sharp-suited business people who
would take the service over. We do not see that as a
solution.
We are
trying to ensure that trusts are fully representative of local
communities, so when we talk about who is to be on them, we are not
trying to prescribe who should be there by saying that there is a list
of those who must be on them. We want to offer the widest possible
opportunities. We have just recruited the next set of chairs and
vice-chairs. They represent a
strong and wide-ranging field—councillors, business people and
people from the voluntary sector—and I am happy about that,
because it adds to what we want to achieve through the
trusts. My hon. Friend
the Member for Stafford has discussed consultation, which he also
mentioned the other day. I said that I would consider the idea of the
advisory board, because I have some sympathy with it. On scrutiny, he
asked about the order-making power. He is right to say that it is not
there but that it is, as he set out, similar to the commencement
orders, which are absolutely necessary for the contractual
arrangements. There might be commercial reasons for not wanting to go
back through the parliamentary process, but the scrutiny is in place in
so far as the Secretary of State has to report back to Parliament. I
would ask my hon. Friend to let me think about the issue in a bit more
detail, because I am not entirely convinced by my own arguments or by
the notes that I have received.
Mr.
Kidney:
Just to give an example from this very debate,
hon. Members have asked the Minister to give an assurance that mergers
will not be forced from the centre in the future. What if an order were
made in future to dissolve a couple of probation boards in order to
force through a merger? I think that Parliament would want to be able
to say that that was not what the Minister said at the time. The way to
consider such a proposal would be through the statutory instrument
procedure, which we will not have if this measure stays as it
is.
Mr.
Sutcliffe:
That further emphasises the point that I want
to go away and consider. I am aware of the commercial problems that
might occur, and I want to balance them in deciding the way ahead. I am
happy to find out what, if anything, can be done, and will let the
Committee know my decision so that we can return to the matter at a
later stage, if necessary.
We are not denying people the
ability to serve on trusts. In fact, we want to encourage the right
cross-section of people to do so. We believe that the orders set out in
clause 4 are appropriate. With
that—
Mr.
Sutcliffe:
That is the word I am looking for; I am
grateful to my hon. Friend. With that reassurance, I hope that the
Committee will support the clause.
Question put and agreed
to.
Clause 4
ordered to stand part of the
Bill.
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