Schedule
1
Probation
trusts: further
provisions
5.15
pm
James
Brokenshire:
I beg to move amendment No. 7, in
schedule 1, page 22, line 13, leave
out ‘four’ and insert
‘five’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 8, in
schedule 1, page 22, line 15, at
end insert—‘(c) a
magistrate.’.
No.
38, in
schedule 1, page 22, line 15, at
end insert—
‘(c) a
magistrate for the area in which the probation trust carries out its
functions; and
(d) a local
councillor for the area in which the probation trust carries out its
functions.’.
No.
27, in
schedule 1, page 22, line 18, at
end insert—
‘3A (1) The
chairman of a probation trust shall be a judge of the High Court or
Crown Court.
(2) The remaining
members of a probation trust shall include at least one of the
following:
(a) a District
Judge;
(b) a member of the
Police Authority local to the area in which the probation trust carries
out its functions;
(c) a
qualified psychiatrist from the Health Trust local to the area in which
the probation trust carries out its
functions;
(d) a member of the
local authority to the area in which the probation trust carries out
its functions.
(3) In
appointing the members of a probation trust, the Secretary of State
shall have a duty to ensure that the trust’s membership is, to
the extent reasonably practicable, representative of the population of
the area in which the trust carries out its
functions.’.
James
Brokenshire:
We move to some of the more detailed
provisions on the functions and operations of the probation trusts. I
have some more general questions and queries on the schedule as a
whole, Mr. Atkinson, but if I am able to catch your eye and
if the debate does not wander too widely I hope to raise those in a
stand part debate.
Amendment No. 7 would change the
minimum number of appointees for the probation trust. To a large extent
it is a probing amendment to find out how the Government arrived at the
number of four and, more generally, to probe the constitution of the
membership. It raises various questions. Under the Bill, a probation
trust will have a chairman and no fewer than four members will be
appointed by the Secretary of State. A chief executive will also be
appointed, but we shall come to that role in due course.
It would be of benefit to the
Committee and more generally if the Minister were to explain how the
process is intended to operate. Will there be an automatic transfer of
existing probation board members if, as the Minister said, it is
intended to take a gradualist approach in converting the probation
board to a probation trust, or is it intended to have a more general
re-advertisement for its membership? What requirements will there be
for the chairman and ordinary members to have expertise, training or
other qualifications?
Although the Secretary of State
will have wide-ranging powers to appoint the relevant members, it would
not be unreasonable to ensure clarity and certainty by providing that
members who are appointed should have relevant experience. The Bill
seems to be silent on that matter, and I would be grateful if the
Minister explained the Government’s thinking. The Minister may
say that he wants as broad a range of people as possible—indeed,
he has probably said so already—but it is obviously important to
understand the basis on which selection would take
place and whether it is envisaged that qualifications, expertise,
training or other requirements would inform the decision-making
process. We have already touched on the question of diversity. I am
sure that that, too, will be relevant. The chairman and the other board
members will be appointed by the Home Secretary. My question is about
the pool of resources from which he chooses. The question was raised
earlier this afternoon, and mentioned in debates last week, whether
including specific lists in the Bill would be appropriate, and
particularly whether it would restrict or frame the choices.
A specific issue needs to be
addressed in the context of the relationship between the probation
trusts and the magistrates and judiciary—a point to which hon.
Members have already alluded in their more general comments on clause
4. None the less, it is worth examining the question in further detail.
Turning Point highlighted the specific importance of magistrates in its
briefing notes. It said:
“Magistrates currently
play a central role in short prison sentences and the bulk of community
sentences. The National Offender Management Bill proposes ending the
statutory requirement for the judiciary to be represented on Probation
Boards. However no alternative representation has been considered. If
judges are not fully involved in the probation service, their
confidence in alternatives to prison will
decline.”
I know
that certain changes have happened in this field, but that view
highlights concern about the implications if there is not an
established link between the activities of probation trusts and the
magistrates. If a formal link is not intended, as in our
amendmentNo. 8, what do the Government propose? What
arrangements do they envisage to promote that consultation and, indeed,
confidence between magistrates and probation trusts? When magistrates
give community sentences, for example, they have a relationship with
the probation trust and a confidence that services will be provided
appropriately. Therefore, magistrates can have confidence in the
decisions that they have
made.
Some people have
highlighted a concern about the relationship between community
sentences and other forms of disposal. I am sure that the Minister
would not be happy if an inadvertent consequence of the Bill would be
to add to one of his other problems, such as the ever-burgeoning prison
estate, which he is trying to manage. The overcrowding of prisons and,
therefore, the need for community sentences to be viewed with
confidence is key to the decisions that magistrates make—based
on the facts before them—as to the appropriate disposal for a
particular offence. That is assuming that the offence gets before the
magistrates and is not dealt with in some summary way, but we will have
that debate on another occasion and it may well not be ruled in order
in this
context.
Comments also
touch on the need for confidence in the system in ensuring local and
locally accountable solutions. Rainer made the point well in its
briefing
note:
“Rainer
believes that both probation trusts and other providers contracted to
carry core offender management should have strong links with the local
community, criminal justice
system and particularly the judiciary. Probation Boards are currently
required to include board members from amongst local magistrates and
local authorities. Rainer believes that such links should be maintained
and, indeed, widened to ensure that all agencies that have a core role
to play in public protection and reducing reoffending are regularly
involved in planning offender management. Trusts should appoint an
advisory group composing representatives from key
partners”— the note
goes on to list them.
I
note that the Minister is prepared to consider the concept of an
advisory board. There is a need to ensure that there is some sort of
direct link with the community. Although the Minister has said that
probation trusts are intended to be wider in their viewpoint, they will
not necessarily be linked to a specific geographical location. Indeed,
they may be encouraged to partner with other probation trusts or to
develop certain specialisations that might have wider
application.
That
said, I still take it from the Minister that, at least currently, the
geographical link is intended to be maintained by way of the
contractual arrangements. In principle, a particular probation trust
may be responsible for probation services in a particular geographical
area. Therefore, my hon. Friends and I think that there is a need to
maintain some form of established link with the community
represented—from within which the probation services are to be
provided—to ensure accountability and to ensure that local
conditions are properly reflected. Obviously, the most effective way of
doing that is to have on the probation trust members of the community,
who will reflect its needs and aspirations. That is reflected in
amendment No. 27, in which we suggest that a probation trust should be
chaired by a judge of the High Court or Crown court to maintain
judicial integrity. It also suggests that the remaining members of the
board should include at least one of the persons listed—a
district judge, a member of the local police authority, a qualified
psychiatrist from the local health trust or a member of the local
authority.
That is not
prescriptive; we are saying not that members should come only from that
list but that at least one member should. That would ring-fence a local
connection in a probation trust. There is no such latitude in the Bill
and all we have had is an indication from the Minister that he will
consider setting up some sort of advisory board or link. I am sure that
we shall return to the need for a local connection again and again, and
I hope that the Minister explains his thinking even if we do not agree
on how that connection should be
provided.
It is
important that members of probation trusts have the widest possible
experience of the justice arena and a local community background.
Through the amendments we seek to promote such a structure and build
confidence in the judiciary, and greater partnership and shared
responsibility between agencies and relevant bodies to provide a better
service within the framework of the
Bill.
Mark
Hunter:
I want to discuss amendment No. 38, although I
will take the opportunity to say that I am sympathetic to the
amendments in the name of the hon. and learned Member for Harborough
and his hon. Friends, not least because they touch on similar
ground.
The amendment addresses the issue
of magistrates and local councillors being members of the new bodies.
That is important if local connections are to be maintained and
confidence in the system is not to be lost. I do not wish to plead a
special case for councillors and magistrates, although I confess that
some of my best friends are councillors and magistrates. However,
naming those two groups would guarantee that important local
connections were maintained. The amendment would create a legal
obligation for one member of a trust to be a magistrate for the
trust’s area and another a local
councillor.
Why is the
amendment needed? As we know, probation boards have local councillors
and magistrates on them, and as the Bill stands the trusts will not. To
be fair, the Minister has given every indication that he wishes them to
be inclusive and that no section of society should find itself
excluded. Nevertheless, guaranteeing the involvement of locally elected
representatives and magistrates would be a better way to achieve that
objective.
The Home
Office says that trusts will primarily be made up of business people. I
know that the Minister has said that it is not his intention that they
will be people without local connections, appointed from on high and
from all over the place, but we must remember that they will not have
to come from the local area. Local connections are valuable and we
should not be keen to lose
them.
5.30
pm
It is at least
controversial that a probation trust will not be required to include
representatives of local businesses or of the wider community who would
be in a better position to represent the wishes of the local community.
The importance of the local community having faith in the probation
services to help with rehabilitation, as I mentioned earlier, cannot be
overstated. Does the Minister agree that we need to encourage the local
community to engage on a much wider basis than hitherto with
ex-prisoners to help in their rehabilitation process and encourage
local voluntary groups—churches spring to mind—to get
involved in this process if reoffending is to decrease?
Without that involvement,
frankly, so much of what we might hope to achieve is simply a wish
list. It is vital that those groups are involved if reoffending is to
decrease as we all want. We need as many connections to the local
community as possible to ensure that provision is community led. It is
local people involved in the probation service who understand the needs
of the service and who should be able to help form a service in their
own area which works according to the needs of the
area.
Why councillors
and magistrates? We would probably all agree that local councillors, as
representatives of their local communities, are best placed to ensure
that the views of the local community are heard on the probation board.
It seems that that would also create a level of local accountability in
the probation trusts similar to that on probation boards. That will
encourage the local population’s faith in the trust and
encourage co-operation by the local community with the
trusts.
Magistrates, as the hon. Member
for Hornchurch said a few moments ago, play a central role in this
process. We need to be careful to keep them fully involved and to
ensure that the courts are not unwilling to give out community
sentences. They need to be assured of the success and effectiveness of
those community sentences. I should be interested in the
Minister’s comments on
that.
Finally, the
probation service is and always has been linked to the magistrates
courts. The service provides reports and information to magistrates and
supervises people put on orders. The magistrates have always been a
part of the local community and their membership has been drawn as
widely and diversely as possible from those communities. Does the
Minister therefore agree that it is essential that magistrates continue
to have a lead role in the management of the probation
service?
Mr.
Sutcliffe:
I am grateful to the hon. Member for Cheadle
for the manner in which he spoke to his amendment. We are all trying to
achieve the same objective. It is just a question of how we get there.
Of course I agree that we have to involve the widest range of people to
tackle reoffending. That goes to the heart of what I want to achieve. I
often say that in my time as an MP and as a councillor, I never fully
understood the impact of the criminal justice system on people
inour communities. It was always someone else’s
responsibility. I was concerned about employment, education, health and
other major issues. The reality is that offenders are affected by all
those issues. We must start seeing offenders for what they
are—part of our communities. Offenders come from our
communities. It is not someone else’s problem. It has to be
tackled by our society and our communities. The reason for moving
towards the trusts is to tackle that
problem.
Much has been
made of our proposed changes to the membership of the trusts. Quite
reasonably, concern has been expressed about the size of the trusts and
the removal of some of the member requirements. I shall try to
demonstrate that those concerns are misplaced. The provisions in
schedule 1 relating to the employment of trust members are deliberately
designed to allow for flexibility and to afford the trusts greater
independence in determining their own requirements. We want the trusts
to be able to judge for themselves how they should best be constituted
to meet those local needs. We want to be able to appoint the right
people for the job, not to have to fill particular categories. That
does not mean that we do not attach any value to the expertise that
those categories represent. Of coursewe
do.
To respond to the
hon. Member for Hornchurch on the point about remuneration for members,
that would be done as set out in paragraph 5. Members of existing
boards are paid attendance allowances, and that will continue for
trusts. Board chairs receive annual salaries, and members get pro rata
amounts for attendance. Similar arrangements will apply to trusts. It
is also intended that there will be continuity of chairs and members,
but that the Secretary of State will reserve the right to not appoint
if there are outstanding issues. As I said earlier, I am heartened by
the high calibre of participants and the range of abilities that was
demonstrated when we recruited the new chairs
of boards. The good thing is that there was an overwhelming
choice—people wanted to come
forward.
Mr.
Neil Gerrard (Walthamstow) (Lab): It would be helpful if
the Minister were to clarify how many probation trusts he envisages us
ending up with. I do not expect him to give us an exact number, but at
the moment we have 42 probation boards. I am not clear whether the
intention is that, at least initially, each of those boards will
transform itself into a trust or whether there will be a significant
change in the number at an early stage. The number does matter—a
small number means bigger areas, and that in turn has implications for
local representation and local accountability, which becomes more and
more difficult the bigger the area that the trust has to cover. For
instance, it would be enormously difficult to try to have
representation across the whole of
London.
Mr.
Sutcliffe:
I understand my hon. Friend’s point. We
have no magic figure in our heads about the number of trusts. I have
also said that if all the boards want to become trusts and they meet
the criteria that we are going to develop on consultation, we will be
happy. That is why we do not want to restrict the make-up of the trusts
by prescribing who can or cannot sit on them. It might help my hon.
Friend if I go through the amendments; then he can see how he feels
about my
explanation.
Paragraph
3 states:
“A
probation trust shall consist of a chairman and not less than four
other members appointed by the Secretary of State; and the chief
executive”,
and amendment
No. 7 proposes increasing “four” to “five”.
As I said, there is no science underlying the proposed figure. I fully
accept that in many, perhaps most, cases, trusts will need to have more
members than that. We are merely setting a minimum. Our intention is to
allow the size of the trust to match the work that it will carry out,
and to adapt to any change that might occur over time. In practice, it
is likely that the trusts will have more than the minimum number of
members, but they will not be required to do so if that is not
necessary. Having too many members would increase costs and slow down
decision making. The key point is that the number for an individual
trust will be a policy matter to be agreed between the chair and the
Secretary of State. It is worth noting that 36 of the current 42
probation boards have sought to reduce board membership as a result of
the opportunities that exist under recent changes.
Amendment No. 27 proposes that
the trust chairman should be a judge of the High Court or the Crown
court. Boards already have a close relationship with the judiciary,
which is valuable and needs to be maintained, but requiring judicial
members to sit on trusts is not the right way to do that.
In October 2005, we published a
consultation paper seeking views on our proposals to enable other
providers to deliver probation services and to create probation trusts.
In response, even those members of the judiciary who expressed concern
about our proposals acknowledged that in a world of multiple
providers it would not be appropriate for judges to be appointed to
probation trusts. It would be particularly inappropriate for them to
chair trusts; indeed, I doubt that many of them would have the time or
the inclination to take on such a role.
Mr.
Robert Flello (Stoke-on-Trent, South) (Lab): Does my hon.
Friend agree that a couple of the positions on a board of this nature
should be taken by housing experts, given the connection between
housing and offending, or by drug experts, given the connection with
drug misuse? Those are the sort of people who should be welcomed on to
such boards.
Mr.
Sutcliffe:
I entirely agree with my hon. Friend. That goes
to the heart of the point that we were discussing last
Thursday—where do we stop when it comes to saying who has to be
on the board? I certainly see the bodies that he mentioned being
represented as a crucial element of resolving the problems that we
face. That gives me an opportunity, because I forgot this morning to
answer a point that the hon. Member for Hornchurch made about the
involvement of the learning and skills councils in the education
service. He will be pleased to know that more than 10 per cent. of
adults who gain basic skills gain them in prison, which is a useful
statistic about what goes on in our prisons. Employment on release from
prison is up by 10 per cent. from 10 years ago to 37 per cent. A new
service called the Offender Learning and Skills
Service—OLASS—has been established and probation boards
are represented on local commissioning boards that operate in that
area.
James
Brokenshire:
I am grateful to the Minister for coming back
on that point. The clarification that I sought was about the joint
commissioning and the seamless service that would need to be provided
given what he has said about the importance of basic skills, improving
rehabilitation and reintroducing offenders back into the
community.
Mr.
Sutcliffe:
There would clearly be a crucial role for the
commissioners in helping offenders to stop reoffending through the
educational skills that they need. The commissioner would have to
consider that and I am sure that local discussions would take place
with local bodies.
I
want to nail the issue of local support and approval. Yes, the
commissioners are regional offender managers, but, as I have already
pointed out, in the duties that forthcoming local government
legislation places on the probation service for local area agreements,
we wanted to avoid the duplication and further development of the
number of bodies that consider those issues. It is entirely sensible to
concentrate on the existing structures, such as the local strategic
partnerships and the local area agreements. We have already set up the
crime and disorder reduction partnerships and we have the local
criminal justice boards. There is a great deal of local representation
on all those, and that would be the route by which we would try to
achieve the best outcomes in offender management.
I also talked about the links
between NOMS and sentencing, which will remain vital. We are creating
local forums for sentencers, NOMS and probation providers to discuss
all the issues of local concern. Regional commissioners will have links
with sentencers at a regional level via protocols that will inform
decisions about which services are commissioned. Amendment No. 8 states
that in addition to a chairman and a chief executive, the five or more
other members of a trust should also include a magistrate. Amendment
No. 39 would add a local councillor to that requirement. As I said, I
have many friends who are local councillors. Amendment No. 27 goes on
to propose that other members of a trust should include at least one of
a district judge, a member of a police authority, a psychiatrist or a
member of the local authority. Individuals from all those categories
are likely to have something to offer, but so may many others, as my
hon. Friend the Member for Stoke-on-Trent, South pointed out.
We believe that we need the
freedom to be able to appoint individuals on the basis of their skills
and expertise and on how they relate to the needs of a trust at any
given time. Even today the needs of boards differ according to their
size or location. That variation may increase in future and we need to
be able to respond accordingly. The recruitment exercises to replace
members of the probation boards are showing diversity in the skills
offered by applicants.
Amendment No. 27 would also
require that as far as possible members should be representative of the
local population. We remain committed to diversity in the selection of
trust members and have a good record in that area. In 2000, Her
Majesty’s inspectorate of probation carried out a thematic
inspection of race equality in the probation service and the follow-up
report in 2004 noted that 16 per cent. of probation board members came
from a minority ethnic background. We do not believe that we need any
additional legislation to maintain that record, and it is hard to see
in practical terms how what is envisaged in the amendment would help.
That amendment and others add nothing of substance to the Bill or they
add inappropriate restrictions that would hinder, rather than support,
the effectiveness of public sector providers. I therefore hope that the
hon. Member for Hornchurch will ask leave to withdraw the
amendment.
5.45
pm
James
Brokenshire:
This has been a helpful and informative
debate, which has re-emphasised the need for good community and local
links to probation trusts to ensure that they properly reflect their
communities, giving them the best opportunity to rehabilitate offenders
and to provide services that take account of local conditions and the
wishes of the local
community.
A number of
interesting points have been made in the debate. I take on board the
need for representation to be as wide as possible and for the Committee
to consider the issue more generally. The intervention by the hon.
Member for Stoke-on-Trent, South was helpful in reminding us of the
issues that offenders must address if they are to turn their lives
around. Often their dysfunctional lifestyle, a lack of family support,
a lack of housing, mental health problems, drug problems or other
issues in their background lead
to criminal behaviour or are a factor in that
behaviour. I want the probation trusts to have a greater involvement
with those sorts of issues, if they are subsequently established within
the framework in the
Bill. That does not
rule out the opportunity to be more specific in respect of certain
requirements that would be expected of probation trusts. The Minister
is clearly not persuaded by the argument for including a more formal
structure in the schedule. I will reflect on what he has said and
consider what further action may be taken to establish an advisory
relationship alongside a probation trust. We will think about whether
it would provide a sufficient connection to make or preserve local
links and ensure that services are delivered in the way in which we
would expect. As we discussed this morning, local authorities have a
key role.
The Minister
talked about local strategic partnerships, CDRPs and local area
agreements between various central and local governmental agencies to
ensure that improvements are made in key indicators and outcomes. That
framework must be considered in terms of the structure of the probation
trusts and their
membership.
The
Minister has referred to regional offender managers. Again, he made a
plaintive request that we believe that this is not a top-down approach
and that it is about local delivery. Again, I have heard what he has
said, but he will not be too surprised to learn that I have not been
persuaded by his arguments. However, in the context of what he has said
about a further review of this particular aspect of the Bill, I beg to
ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Gerrard:
I beg to move amendment No. 35, in
schedule 1, page 23, line 15, leave
out
‘are for the Trust to
determine’
and
insert
‘shall be
determined by the Secretary of
State’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 36, in schedule 1, page 23, leave out lines 22 to
29.
Mr.
Gerrard:
The amendments concern the part of the schedule
that deals with the terms of employment and pay of the people who will
work for the probation trusts. Paragraph 7(2) states that the terms of
employment of any employees are for the trusts to determine, which will
inevitably lead to variations in employment between different trusts.
Paragraph 8 contains a caveat that pay, pension and other allowances
will require the approval of the Secretary of State. A further caveat
allows the Secretary of State to decide not to use that power. The
effect will be the disappearance of national collective bargaining on
pay and conditions, which has been in place in the probation service
for more than 60 years. Instead, we will end up with multiple providers
and multiple negotiations over conditions of service, which is not a
recipe for a service that will operate
well.
I have seen
something similar happen in my previous area of employment, when
further education colleges, which used to be subject to national
collective bargaining under the control of local education
authorities, became independent corporations. The effect has been to
break down national negotiations over a number of years, which has led
to varying terms and conditions in different institutions. That
approach does not work well, and multiple negotiations do not help. It
is not only the 42 probation trusts that will be affected, because
there will be multiple other providers, too. As negotiations on pay and
conditions are broken down into smaller and smaller units, there will
inevitably be employers who are poor at negotiating. I have seen it
happen: the result is unnecessary disputes, because some of the people
conducting the negotiations do not have a clue what they are doing. I
am concerned that we are going down that
route.
Mr.
Flello:
Does my hon. Friend share my concern that,
in an area such as my constituency, where wages are below the average
for the wider west midlands, officers who are doing exactly the same
job as those in other parts of the country will be paid considerably
less, despite the fact that they are equally professional and good at
their
job?
Mr.
Gerrard:
The concern is that we will move in that
direction. If staff are transferred from one provider to another when a
new provider comes in, they will have the protection of TUPE. There are
also the two-tier work force regulations, so there is some protection
to help people who are transferred. It is not only a question of what
happens in the initial stages, but of what happens in the longer term
as new providers come in which are not simply transferring staff from
the existing national service. All the evidence from the experience of
the Prison Service is that the terms and conditions for staff in
private prisons are significantly lower than in the public sector. It
is a question of not only pay, but conditions—the Bill
specifically mentions pensions and
allowances.
What will
happen to people’s career development? A national structure, as
now, certainly helps if a probation officer moves from one area to
another. Continuity of service and how that counts towards pay, grades
or pensions, or how that relates to service entitlements such as annual
leave, are not at issue. That is all simple and straightforward with a
national structure and with the national professional career structure
that follows from that. The fragmentation of that national structure,
which will be the consequence of the schedule as it stands, is going to
cause problems.
At the
moment, the staffing levels of the national probation service are
currently about 21,000, which is a relatively small number of people to
negotiate on a collective bargaining basis. If we split that 42 ways or
more, in some cases we will have a very small number of people
negotiating about pay and conditions, which I do not see working. That
will cause problems. The NOMS briefings issued by the Home Office state
that there are no plans to move away from collective bargaining, but
they specifically do not mention national collective bargaining. There
is an important difference between “collective
bargaining” and “national collective
bargaining”.
I do not understand the need for
sub-paragraphs (2) and (3) of paragraph 8. The provision in
sub-paragraph (1) that the determination of the terms of
employment—remuneration, pensions,
allowances—
“requires
the approval of the Secretary of
State”
seems to be there
as a safeguard, which should ensure that an individual provider is not
able to shift pay and conditions a long way from the norm, particularly
not downwards, which would be the obvious fear. However, the rest of
paragraph 8 then gives the Secretary of State the power to ignore that.
He can just say that, for the time being, he will decide that that will
not apply. He might decide that that is not going to apply to an
individual trust or even across the board. In what circumstances does
the Minister think that he might wish to do away with any safeguards
that he is putting in place on pay and conditions, which is the total
effect of paragraph
8?
That is the almost
inevitable consequence of the fragmentation that we are likely to see,
if the Bill goes through in its present form. If we end up with large
numbers of relatively small providers in the business, particularly in
the private sector, then ensuring that national collective bargaining,
national pay rates and national terms and conditions apply will be very
difficult. We do not want to see a situation where two people doing
identical jobs, maybe just a few miles apart, are on completely
different terms and conditions of work, pay and pensions. That is where
the schedule will lead us, if it stays as it is. I hope that my hon.
Friend the Minister will reconsider it and explain why he believes it
necessary to take away the safeguard of requiring the Secretary of
State’s approval of pay, pensions and allowances, which will be
an important issue for people who might wish to work in the
service.
6
pm
James
Brokenshire:
I rise to speak briefly on the amendments. I
heard clearly what the hon. Member for Walthamstow said, and the
Minister might be interested to know that I do not particularly want to
dwell on the private grief on the Government side of the
Committee.
My normal
criticism of the Government’s top-down approach might not be so
appropriate in this case, given that the schedule provides some
discretion at local level. If the Minister is going down the dynamic,
competitive route of promoting innovation in services and their
delivery, the probation trusts, even if they are intended to compete
against each other, will need flexibility in relation to the manner in
which they operate if that model is to be
effective.
On career
development, a relevant question is how standards will be maintained in
the system through training. The Minister addressed the importance of
that this morning and said that the contractual framework would ensure
certain standards of training and provisions on meeting the cost of
training. When we discuss the designation of officers of providers of
probation services under clause 6, we will ask how that will be
measured and what standing the individuals in question will need to
have. My concerns about the standards to be applied may well be dealt
with then.
I will
listen with interest to the Minister’s response and see whether
he is able to square the circle of the points raised by his hon.
Friends.
Mr.
Sutcliffe:
I am grateful to my hon. Friend the Member for
Walthamstow for raising serious points. I know that he will accept that
the present Government have done more for the protection of employment
rights than any previous Government. Prior to my role in the Home
Office, I was happy to be the Minister responsible for employment
relations and rights and employees’ terms and conditions. In
fact, I have had some interesting ministerial roles: I was also the
Competition Minister, so I fully understand competition. We part
company from the official Opposition because they believe in the free
market whereas we believe in fair markets and in establishing rules and
regulations that create fair market
conditions.
My hon.
Friend paints a picture of doom and gloom. Are we engaged in a race to
the bottom? Are the proposals about devaluing the role of probation
officers and providers, getting things on the cheap and thereby
affecting the quality of the service? I say to him that they are not. I
said earlier that I fully understand the role of the trade unions and
their desire to protect their members’ terms and
conditions.
Paragraphs
7 and 8 of the schedule deal with the arrangements for trusts to employ
staff. Paragraph 7 states that the terms of
employment
“are for the
trust to
determine.”
Paragraph 8
allows but, importantly, does not require the Secretary of State to
approve the terms of employment determined by trusts.
AmendmentsNos. 35 and 36 would restrict that flexibility by
requiring the Secretary of State to determine terms of employment. The
current provisions in schedule 1 are designed to allow flexibility for
the long term and to leave sufficient room for manoeuvre to respond to
circumstances that we cannot yet foresee. I believe we should never say
never, so we should not rule out for all time the possibility of trusts
determining their own pay and conditions at some point in the future.
If, at that point, it becomes appropriate for trusts to set their own
pay levels, surely it would be wrong if primary legislation prevented
that from happening.
However, I assure my hon. Friend
that that is not what we have in mind. We do not think it is
appropriate for individual trusts to set their own terms and we have no
plans to change the current arrangements whereby pay, terms and
conditions are negotiated nationally. I hope my hon. Friend will agree
that the provision is sensible. I acknowledge the seriousness of the
issues he raises, but it would be wrong to prevent us from ever taking
that opportunity. There are currently no plans to do so. I know from
the strength of representations from the trade unions involved that
they would resist the Government if our intention was to go down that
route—but it is not.
As I have said, my hope is that
the public sector will rise to the challenge and that the probation
trusts will be public sector-led, but in the spirit of trying to be
dynamic and to open up the opportunities in the Bill, I hope that my
hon. Friend will accept my assurances and withdraw the
amendment.
Mr.
Gerrard:
The Minister has made some helpful comments about
there being no plans to change the current arrangements on national
negotiation. As far as I can see from the schedule, that would apply to
pay
and pensions and so on, but not necessarily to other
terms of employment. Paragraph 7(2) states specifically that
“The terms of employment
... are for the trust to determine”.
Although the Minister has gone
some way in dealing with pay and pensions, he may not have dealt with
some of the other aspects.
I am not predicting a race to
the bottom. Some of the people involved in probation boards now, who
may well be involved in probation trusts in future, are not
unreasonable people who would behave irresponsibly, but the more
fragmented the system becomes, the more likely it is that somebody,
somewhere—a trust or employer—will see the provision as a
way of driving conditions down.
The word
“flexibility” always worries me; almost every time it is
used, it seems to indicate that something nasty that I would prefer not
to happen will happen. The Minister said the measure may be used
“at some point in the future”. I hope we do not get to
that point, because it will not be a particularly efficient way of
dealing with pay, pensions or that sort of issue. To have multiple
negotiations with multiple providers does not seem the right way to go.
When that has happened in other places, it seems to have led to
completely unnecessary disputes that could have been sorted out if the
matter had been dealt with at regional or national level.
I accept the assurance that the
Minister gives about there being no plans to change the present
position. I do not wish to press my amendment to a vote at this time,
but will think again about whether we might wish raise the matter on
Report. For the time being, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
James
Brokenshire:
I beg to move amendment No. 9, in
schedule 1, page 25, line 1, leave
out sub-paragraph
(3).
We now move on to
paragraph 14 of schedule 1, on the duty to comply with directions.
Paragraph 14 states that
“A probation trust must
comply with any general or specific directions given to
it—”
The
Chairman:
Order. I am a little confused. Is the hon.
Gentleman talking about amendment No. 9? He seems to be talking about
amendment No.
10.
James
Brokenshire:
Thank you, Mr. Atkinson. Amendment
No. 9 would remove sub-paragraph (3) of paragraph 14, which is the
paragraph I was quoting. I hope that I can explain the relevance of
what I was saying in the context of that sub-paragraph. Paragraph 14
starts:
“(1) A
probation trust must comply with any general or specific directions
given
to it by the Secretary of
State”.
It
continues:
(2) In
particular, a probation trust must provide the Secretary of State with
any information relating to the performance of its
activities”.
Sub-paragraph
(3)
states:
“Different
directions may be given under this paragraph for different purposes and
in relation to different probation
trusts.”
Amendment No. 9 would
delete that sub-paragraph.It is a probing amendment to give us
a better understanding of how paragraph 14 will operate as it seems to
state that different directions may be given to different probation
trusts for different purposes. How will compliance with general
requirements fit in? If there is a general requirement for a probation
trust to act in a particular way, it seems strange that under
sub-paragraph (3) certain probation trusts might not be required to
comply with that more general requirement. In what circumstances might
some sort of waiver or exclusion be
appropriate?
There is a
general point in relation to paragraph 14 and the power relating to
general or specific compliance by a probation trust. There may be
circumstances in which there are separate contracting arrangements that
may sit below the probation trust. For example is it envisaged that the
Secretary of State could order that a particular subcontractor’s
contract be terminated? What would happen in those circumstances in
relation to any potential liabilities or damages that may accrue? That
sort of exclusion may be what was intended in sub-paragraph (3). Some
sort of confirmation of the intent of paragraph 14 and the exclusions
that might apply is
needed.
Mark
Hunter:
I rise to speak only briefly on amendment No. 9. I
support the argument made by the hon. Member for Hornchurch. The crux
of the matter is found in what could be considered to be a fairly
vacuous
phrase:
“Different
directions may be given under this paragraph for different purposes and
in relation to different probation
trusts.”
In effect, that
means that the Secretary of State can act differently with different
trusts, as he sees fit. I, too, look forward to hearing the
Minister’s comments. The key issue, at least for some of us, is
the amount of power that we invest in the Secretary of State. We may
not always be as fortunate as we are now with the occupant of that
office.
6.15
pm
Mark
Hunter:
I thought that the hon. Gentleman would recognise
that I was being ironic. There is an important issue about not just
considering legislation in the context of the here and now, and the
current occupants of such offices, but being aware of other
possibilities in future. For that reason, and because too much power is
already vested in the Secretary of State—with little indication
of counterbalance by way of public accountability, as was said
earlier—it is important that the Minister gives serious
consideration to the amendment. I look forward to hearing what he has
to say about it.
Mr.
Sutcliffe:
I do not know whether it is the time of day,
but hon. Members are becoming more suspicious of the powers of the
Secretary of State. I hope to reassure them that those are entirely
appropriate.
As the
hon. Member for Hornchurch said, paragraph 14(1) of schedule 1 requires
a probation trust to
“comply with any general or specific
directions given to it by the Secretary of State in connection with the
carrying on of any of its
activities.”
Paragraph
14(3) states that different directions may be given for different
purposes and in relation to different trusts.
Although the wording is slightly
different, the effect of that paragraph is the same as that of existing
legislation, as applied to local boards in paragraph 14 of schedule 1
of the Criminal Justice and Court Services Act 2000, so there is
nothing new at all in what we propose. Paragraph 14 does not restrict
the types of direction that might be issued, but sub-paragraph (2)
gives an example of what we have in mind, namely directions requiring a
trust to provide information relating to its performance. The effect of
the amendment will be to cast doubt on the ability of the Secretary of
State to issue different directions to different trusts for different
purposes.
As I have
indicated, that will be more restrictive than the existing law, and it
will be particularly inappropriate for a future world in which there is
likely to be greater diversity between trusts and a greater need for
different directions to be issued. At the outset, we expect to treat
all the trusts the same, but that might not always be the case. For
example, in future, not all trusts will necessarily deliver the same
range of services, so if a particular direction is relevant to only one
area of service provision, it will be pointless to issue it on a
blanket basis to all trusts. We might, in due course, decide to allow
some trusts that are performing particularly well greater autonomy than
others. We have no specific plans in that regard at the moment, but it
would be foolish to rule out such flexibility for the future.
We need to strike a balance
between retaining appropriate controls over what will continue to be
public sector bodies and avoiding excessive bureaucracy and unnecessary
interference from the centre. The appropriate balance may evolve over
time and in different ways for different trusts. I hope that hon.
Members will accept the need for flexibility, that they will believe
that there is no need to be so suspicious and that they will not press
their amendments.
James
Brokenshire:
I hear the Minister’s counsel not to
be suspicious, but if we are to do our jobs, it is appropriate for
those on this side of the Committee to be suspicious of powers that are
vested in the Secretary of State. We have already debated this
afternoon the greater control and the focus on what we see as the
top-down approach, with more power being ceded to and vested in the
Secretary of State. That always makes me suspicious, whatever the
context in which it arises.
I note the Minister’s
comments on the amendment. It is important that reporting is done, and
that information on compliance with contractual provisions and
performance criteria that might be applied to a particular probation
trust are provided in a timely and appropriate fashion, given that we
all agree that the protection of the public has to be a paramount
requirement, and that it is appropriate in certain circumstances for
the Secretary of State to require that information be provided to
ensure that a fundamental underpinning obligation is being
appropriately and
adequately met. In the context of what the Minister has said, I beg to
ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
James
Brokenshire:
I beg to move amendmentNo. 10, in
schedule 1, page 25, line 2, at
end add—
‘( ) A probation
trust must comply with the duties set out in sections 10 and 11 of the
Children Act 2004 (c.
81)’.
The
amendment is intended to re-emphasise the importance of compliance in
the Children Act 2004. Probation boards are included under section 10,
which places a duty on agencies that provide services for children to
co-operate with local children’s trust arrangements to improve
the well-being of the children and young people in the relevant local
authority’s area. Section 11 places duties on specific agencies,
including probation boards, to ensure that they discharge their
services
“having regard
to the need to safeguard and promote the welfare of
children”.
That point has
been highlighted by the Standing Committee for Youth Justice. In its
view, it is vital that those duties are effectively transferred to the
new probation
trusts.
The amendment
is intended to elicit greater information and clarification on the
specific obligations and requirements in the 2004 Act that the
probation boards currently meet and comply with. Perhaps that needs to
be examined in the context of the Act itself; an amendment to it might
be required to reflect the changed situation and the arrangements
contemplated in this Bill.
In any event, the protection of
children is an extremely important aspect of what is before us. As we
have heard, education is key, but public protection of children at
risk, who may be in vulnerable situations, is also extremely important.
The Committee should restate that this afternoon. It is imperative that
the Minister state the situation to ensure that nothing will be lost
and that the obligations and requirements of the 2004 Act will be
maintained, adhered to and followed through, whatever arrangements we
end up with as a result of our consideration of the
Bill.
Mark
Hunter:
I want to say a few words about the amendment,
although most of the ground has been covered by the hon. Gentleman. I
want to talk from my own perspective about the amendment’s
importance and what it is designed to achieve. We have heard several
times about the importance of protecting children, which is crucial to
what we are trying to do. However, the amendment would place a duty on
probation trusts to co-operate with local children’s trust
arrangements as set out under section 10 of the 2004 Act and to ensure
that they discharge their services with regard to the need to
“safeguard and promote” the welfare of children under
section 11.
As we know,
that includes co-operation with the local authority, its relevant
partners and other agencies that conduct any work relating to
children—a district council, police authority, youth offending
team, strategic health authority, primary care trust, learning and
skills council and other bodies that provide services under section 114
of the Learning and Skills Act 2000.
There are five important
considerations: the physical and mental health of the individuals and
their emotional well-being; protection from harm and neglect;
education, training and recreation; the contribution made by them to
society; and finally, social and economic well-being. I am sure that
the Minister will want to address such concerns in his
response.
Why is the
amendment needed? Probation boards were included in sections 10 and 11
of the 2004 Act as agencies that provide services to children. They
therefore need to co-operate with the local children’s trust
arrangements. That duty needs to be transferred to the probation trusts
so that they can effectively co-operate with the agencies to ensure
that the care and management of young offenders is co-ordinated and is
consistent with their services in other areas. That will help to create
good end-to-end management, which I know that hon. Members from all
parties agree is important, especially when children come into contact
with many different agencies through schools, care homes and the like.
It is important that those groups have the necessary information to
ensure that the well-being of the child is looked after
consistently.
Co-operation also includes
transferring information between the different agencies and
organisations. Both that and the joined-up projects between Government
agencies could help to stop young people, especially those in care,
from getting into trouble to start with. It would certainly help with
rehabilitating young offenders back into the community. I look forward
to the Minister’s comments on those
concerns.
Mr.
Coaker:
May I preface my remarks by thanking the hon.
Members for Hornchurch and for Cheadle for their points? They are
extremely important and there is no division in the Committee when we
talk about the importance of the Bill leading to greater public
protection. When we start to talk about the protection of children in
particular, it becomes even more real to us all. I thought that the way
in which the hon. Gentlemen made their points added to the
consideration of the Bill by the Committee. From the perspective of the
Government, there is no difference between any of us on the point. We
expect to see sections 10 and 11 of the Children Act 2004 applied as
rigorously and as fully as they are at present to the whole range of
operation of any new system.
I want to make some remarks with
specific reference to the amendment. The references to local probation
boards in the 2004 Act are just two examples of many references to
local probation boards throughout the statute book. Many of those
references place duties on local probation boards to carry out certain
functions, and often they concern joint working with criminal justice
and other statutory agencies. Let me make it clear, as I said at the
beginning, that we remain committed to maintaining the position of
probation in all those areas. We recognise that all the statutory
references will need to be updated to take account of the fact that
probation boards will ultimately cease to exist. However, the way to do
that is not simply to place on probation trusts the requirements that
apply to probation boards, which is the effect of the
amendment.
We need, too—I hope that
the hon. Gentlemen will accept this—to take account of the fact
that in future probation trusts will work alongside other providers to
whom those statutory provisions might also need to apply. Although a
consequential amendment is therefore necessary to sections 10 and 11 of
the Children Act, I do not think that that needs to be set out in the
Bill in this way. In due course we will table a consequential amendment
to ensure that the relevant duties continue to apply when probation
boards cease to exist. In light of my comments, I hope that the hon.
Member for Hornchurch will feel able to withdraw his
amendment.
James
Brokenshire:
I thank the Minister for the manner in which
he has responded to the amendment and for his reassurance that the
issues will remain a high priority in how services are undertaken,
whoever they might subsequently be carried out by. The Minister made
the point that the arrangements could lead to other providers becoming
involved in service provision. We need to contemplate that point. His
point about the amendment is fair and justified, and we will review the
amendment that the Minister has promised to table on the matter. On the
basis of that commitment and because our amendment does not properly
address the wider aspects discussed in this debate, I beg to ask leave
to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Question
proposed, That this schedule be the First schedule to the
Bill.
6.30
pm
James
Brokenshire:
Before we leave the schedule, I would
appreciate clarification on a few technical points. Paragraph 1(1)
states:
“A
probation trust is a body
corporate.”
I assume that
it is intended to establish the probation trusts as companies limited
by guarantee rather than as any other corporate structure, but I would
appreciate the Minister’s confirmation of that
point.
Paragraph 1(2)
states:
“The
name of the trust is that specified in the order establishing
it.”
Will the Minister
consider tabling an amendment to include any subsequent order amending
it? Clause 4(1)(b) states that the Secretary of
State
“may by
order...establish a probation trust for purposes specified in the
order”,
so in those
circumstances, the name would be as stated in the subsequent order
rather than in the establishing
order.
Paragraph 2
states:
“A
probation trust is not to be regarded as the servant or agent of the
Crown”.
The Minister might
recall, although maybe notwith fondness, our discussions on
the Corporate Manslaughter and Corporate Homicide Bill. I would be
grateful if he were to confirm the status of probation trusts under
that Bill and in connection with any associated liability.
Paragraph 4 deals with the
removal of an appointed member. It would be helpful for the Committee
if the Minister were to clarify the circumstances envisagedfor
the removal of a member, so that it would not be done peremptorily or
unreasonably, given that those members’ functions might
sometimes include raising issues about the maintenance of probation
services, which might make Ministers or the Government uncomfortable.
We need to ensure openness and dialogue without fear of
removal.
I come to
paragraphs 6(2) and 8. We have debated general employees, but in
connection with the chief executive, probation trusts might have issues
attracting suitable members and executives to drive them forward.
Particularly if we enter a competitive and dynamic situation in which
other providers try to muscle in on the market, it is important not to
leave probation trusts at a competitive disadvantage by allowing the
Secretary of State to refuse certain arrangements. Some clarification
on the specific issue of chief executives in addition to our wider
debate on general employees would be
helpful.
Paragraph
12(2) states that a probation trust “may not hold land”.
Will the Minister confirm that that includes land in its broadest
sense, and that the provision is in no way intended to fetter the
probation trust’s ability to hold leases, to have other
holdings, to provide its services from such properties or, indeed, to
have offices at such properties? The paragraph mentions managing
“land held by another”, but I would appreciate
clarification to ensure that that will not be an unnecessary
fetter.
Is the
statement of accounts required by paragraph 13(1)(b) the
same—assuming that the probation trust is a company limited by
guarantee and established under the Companies Acts—as the
requirement to file accounts? Will the accounts be one and the same, or
will two separate sets be prepared on a different basis? If there is to
be duplication, why is it necessary? And will there be a requirement
for a separate financial statement to be audited, as later paragraphs
of the schedule
suggest?
Mr.
Sutcliffe:
I am grateful to the hon. Gentleman for asking
those questions about this schedule, which goes to the core of the
Bill. He is quite right to do so, and I shall do my best to answer his
questions. If I miss any, I shall ensure that he gets the answers in
writing.
On the hon.
Gentleman’s first point on probation trusts as corporate bodies,
it is clear that trusts will not be companies limited by guarantee.
They will be normal bodies corporate, with no change from the legal
status of the current boards. Most of the schedule is based on existing
legislation, and many of his questions are covered by those provisions.
The key difference is that we are seeking greater flexibility to give
the trusts greater independence from the centre. He keeps saying that
it will be a top-down system, but we are trying to give trusts the
flexibility and freedom to do a good
job.
I am pleased that
the hon. Gentleman has recognised that we are the first Government to
move on Crown immunity, and the probation trusts will be covered by the
provisions on the Crown acting as employer, which he will remember from
the discussions on the Corporate Manslaughter and Corporate Homicide
Bill. They will be in the same position as any other Government service.
The holding of land will be the same as it is now—as one would
expect, trusts will not be prevented from holding
leases. I wish to spend
some time discussing the role of the chief executive, because the hon.
Gentleman made a fair point in saying that there will be a change in
line management and the relationship with the chief officer. Both the
chiefs and chairs of the probation boards will be appointed by the
Secretary of State, which will create a lack of clarity about the lines
of accountability and the relationship between the chief and the chair.
As the hon. Gentleman has said, paragraph 6 provides for the chief
executive to be appointed by the trust itself, which will clarify
accountability and give the trust greater independence to run its own
affairs.
Paragraph 6(3)
makes a transitional provision by allowing, though not requiring, the
appointment of the first chief executive of a trust to be made by the
Secretary of State. That will facilitate a smooth transition between
board and trust status, so that an existing chief executive can be
transferred from one to the other without a fresh appointment round.
Once appointed, whether by the Secretary of State or the trust, the
chief executive will become a full member of the trust and provide an
executive presence on the governing body. His employment status will
remain
different from that of members appointed by the Secretary of State, who
will retain the power to determine the chief executive’s terms
and conditions and to dismiss him, if
appropriate. The
removal of members will be by a procedure similar to the current one.
It will be about removing not people who disagree but those who act
inappropriately. As one would expect, there are clear procedures in
place for people to be removed and to have the opportunity to appeal.
The chief’s employment status in that regard will be the same as
that of other staff. The schedule gives us an opportunity to create
flexibility, but it does not stray too far from the principles agreed
in the 2000
Act.
James
Brokenshire:
I rise briefly to add that I asked a couple
more questions on accounts and the names of the trusts, but I take on
board what the Minister has said about sending me a letter on those
points.
Question put
and agreed
to.
Schedule 1
agreed to.
Further
consideration adjourned.—[Mr. Alan
Campbell.]
Adjourned
accordingly at twenty minutes to Seven o’clock till Thursday 18
January at Nine
o’clock.
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