Clause
7
Abolition
of local probation boards and transfers of property etc and
staff
Question
proposed, That the clause stand part of the
Bill.
Mr.
Garnier:
I want concentrate the first part of the clause
title, namely the abolition of local probation boards, subject to one
or two remarks that may be more appropriate to schedule 2. The
Government’s apparent policy is to reorganise the probation
service
for the third time in a short period and to reorganise the structures
that are provided to secure probation services in England and Wales for
the public’s benefit. In 2001, the national probation service
was set up and probation boards, broadly coterminous with the counties
of England and Wales, were established to ensure local provision of
probation services. Despite a number of criticisms at the time, that
system has worked quite well. There have been difficulties with some
aspects of provision in particular areas, but the system is barely five
years old, for goodness’ sake, and the Government want to turn
it upside down all over again. It is therefore unsurprising that the
proposal is causing a great deal of controversy. It is the cause of
concern about staff retention and attracting new people to probation
work, and a matter of great political controversy, as I said on Second
Reading and in earlier sittings of the Committee.
I take the example of my own
county of Leicestershire, where the probation board, which operates for
the city of Leicester and for Leicestershire and Rutland, is one of the
best performing. It is well led and well staffed, and has hit more of
the Government’s targets than many other local probation
boards.
10
am
If Leicester
and Rutland probation board is doing so well, why will it have to be
reorganised? Why will the people who work within it have to devote as
much time to dealing with the reorganisation as they do to the service
itself? Why will the probation board’s limited resources from
the Home Office—there is a 0 per cent. budget increase over the
next three years—have to divert money and management time to
reorganisation instead of getting on with the
job?
I do not accept
that the establishment of NOMS, with a chief executive, regional
offender managers, and the bureaucracy, additional staff and
expenditure that are involved, is a good thing, but even if I did
accept it, I would still ask why those officers and that bureaucracy
cannot continue to deal with local probation boards rather than the new
probation trusts. Ministers have not thought adequately about the
effective delivery of a vital public service.
It is very easy to sit in
Whitehall drawing graphs, maps and plans and having the joy of being
powerful and reorganising things without understanding the effect of
that paper exercise on real people doing real jobs on behalf of real
members of the public. For the life of me, I simply do not understand
the point of replacing local probation boards, which have only recently
been set up, with probation trusts, which are the equivalent of primary
care trusts, and I look forward to hearing the Minister’s
understanding of the
proposal.
We all know
the financial problems that primary care trusts have had, and I do not
need to be too much of a Cassandra to anticipate that under this
Government’s management probation trusts may soon end up in the
same parlous state.
Ms
Diana R. Johnson (Kingston upon Hull, North) (Lab): This
is the second time that the hon. and learned Gentleman has mentioned
primary care trusts and
funding problems. I want to put it on the record that only a small
minority of PCTs are in deficit, not the majority. Will he reconsider
his
remarks?
Mr.
Garnier:
No, but I am grateful that the hon. Lady has had
the opportunity to contribute to our proceedings. No doubt her remarks
will have been noted. We are not here to discuss PCTs, but even
assuming that the
majority—
The
Chairman:
Order. The hon. and learned Gentleman has
anticipated
me.
Mr.
Garnier:
I was using PCTs as an analogy and as an example
of poor Government reorganisation. Even if the majority are not in
deficit, that still leaves a huge number of individuals who are
affected by PCTs that are in the red, which goes back to our discussion
on the previous amendment. If PCTs, whether they are in or out of
funds, place the provision of speech and language therapy in the
criminal justice system at the bottom of their priorities, it does not
make much difference.
I have yet to find a logical,
rational and cogent reason, emanating from any Home Office Minister, on
the need for a change from local probation boards to probation trusts.
Abolition of local probation boards and transfer of properties, and so
on, are matters that the Government have yet fully and properly to
explain. Although there are one or two matters of detail that they want
to deal with under schedule 2, which hangs from clause 7, there has, as
far as I can see, been no proper and public explanation of the need for
such a managerial
change.
Mr.
Sutcliffe:
The hon. and learned Gentleman says that there
has been no output from Government about why we want to propose
probation trusts instead of the existing probation boards. On Tuesday,
when we were discussing, I think, clause 4, I tried to explain why we
are setting up the trusts and how we are going to go about it. I refer
the hon. and learned Gentleman to the report of Tuesday’s
sitting, and I am sure that he will learn something from it. I shall
reiterate the position a little,
however.
The probation
service staff retention issue keeps coming up, and I asked for the
facts on that. Although I accept that there is legitimate concern about
the future, which has quite rightly been fuelled by a union that
represents the many members working in probation, that is one reason
why I want to make progress on the Bill and on the further discussions
on future provision that will flow from it. There will be no big bang.
The question is how to proceed to reduce reoffending. The Bill was not
plucked out of the air. It is a result of the Carter report, which I am
sure has been read by Opposition Members. That pointed the Government
in the direction that we are
taking.
On recruitment
and retention, the rate at which probation staff leave the
service—the attrition rate—dropped from 10.1 per cent. in
2003-04 to 9.2 per cent. in 2005-06. That compares very favourably with
the rest of public service. So although individual issues have been
raised—my hon. Friend the Member for Walthamstow mentioned the
individual case of the
probation employee who had been in service
for25 years—the facts and figures are not consistent
with people leaving in droves and being unhappy. I hope that that deals
with that point. On
clause 7 and schedule 2, clearly we need to consult further on
probation trusts, and we shall. Clause 7 is consequential on preceding
clauses in that it provides for local probation boards to be
abolishedas the preceding clauses are brought into effect.
Subsection (2) gives effect to schedule 2, which contains provisions
relating to transfer of property and staff from boards to trusts and to
other probation service providers, and between the different probation
service providers. It is very straightforward and is consequential on
what was decided in clause
4.
James
Brokenshire (Hornchurch) (Con): Will the Minister explain
how the provision will be brought into force in clause 7, and the
timing on that? The Minister has said consistently that he favours a
gradualist, rather than a big bang, approach. However, clause 7 seems
to do away with all probation boards in one swoop. It would help the
Committee if the Minister explained whether the clause will take effect
right at the last minute, and how schedule 2 and its transfer
provisions will come into effect if subsection (1) has not been
enacted.
Mr.
Sutcliffe:
Obviously, the purpose of clause 7 is to set
out the arrangements clearly. The hon. Gentleman is quite right: it
will take effect in different areas at different times as matters
progress. I indicated that we would be looking for the first trust to
be in existence from April 2008.
James
Brokenshire:
I hear what the Minister says about 2008. He
has indicated that this will be brought in gradually, which reflects
our debate on Tuesday. If my reading of subsection (1) is correct,
however, it says:
“In
consequence of the provisions of this Part, the local probation boards
... are
abolished.”
May I press
the Minister to make it clear that that abolition, once clause 7 comes
into effect, does not cover all probation boards in one fell swoop and
that it can be implemented in the gradual way that he seems to hint
at?
Mr.
Sutcliffe:
It may help the hon. Gentlemanto know
that clause 33 (2) allows for different commencement times. That point
will be covered when we reach that stage. The intention is that the
board would be abolished only if there was an application from an area
or areas to become a trust. We have the appropriate amendments in place
to allow for that transition. There is still discussion to be had on
the criteria and I am happy for that to progress as part of the
consultation with the wider community that we talked about. It is the
wider community who will help us to solve the problems that we
face.
The matter is
contentious only until the hype is moved to one side and people listen
to what the Government are saying. They then understand what we are
about. That has happened in the various meetings and discussions that I
have had with people over the last six or seven months. I am therefore
happy for that
consultative and co-operative discussion to take place.I hope
that the passing of the Bill will allow more convivial discussion about
the detail of how we will move forward on the
trusts. I hope that
with that explanation clause 7 can stand part of the
Bill.
Mr.
Garnier:
I have heard what the Minister has to say but I
have also read what he said on Tuesday. What he said on Tuesday was
descriptive and not analytical. It was “What we will do”
not “Why we are doing it”. The question I am asking him
today is “Why?” and he has not answered it.
One can lose the will to live.
This morning I wish to preserve myself for further battles so I will
not cause more trouble than is strictly necessary. I do, however, think
that the Minister needs to be a lot more analytical in the way he
describes his policy. He needs to tell us why he does things and not
just what he intends to do. If he looks carefully at Tuesday’s
Hansard, he will see plenty of description of what the
Government are going to do and who is going to be on the board, and on
the trusts and so forth, but he does not at any stage tell us “I
think this is a good idea because...” I will leave it there
for the
moment.
Question
put and agreed
to.
Clause 7
ordered to stand part of the
Bill.
Schedule
2
Transfers
of property etc and staff in connection with probation services
arrangements
Question
proposed, That this schedule be the Second schedule to the
Bill.
Mr.
Garnier:
I would like to draw the attention ofthe
Minister and the Committee to paragraph 6. I appreciate that this is
largely a mechanical set of arrangements. Assuming the trusts come
through, it is all to do with the transference of obligations from the
board to the trusts and the rights and so forth of the individuals
employed. I want to ask a general question as the expressions that I am
about to talk about are repeated in subsequent paragraphs.
Sub-paragraph (4)
says:
“But if
the employee informs the transferor or the transferee that he objects
to the
transfer...
(b)
the contract of employment is terminated immediately before the date of
transfer.”
Sub-paragraph
(5) says:
“The
employee is not to be treated, for the purposes of the Employment
Rights Act 1996 (c. 18), as having been dismissed by the transferor by
reason of—
(a)
the transfer of the contract of employment under the scheme;
or
(b) the termination
of the contract of employment under sub-paragraph
(4)(b).”
10.15
am
If I were an
employee of a board and objected to myself or my functions being
transferred to a non-state provider, my contract would therefore be
terminated and I would not be considered as having been
dismissed. What would I be considered as? Redundant? Reassigned? Moved?
Surplus to requirements? It is important for us to know the
Government’s thinking behind the contractual arrangements
between an individual and his employer. The same point applies to later
paragraphs: those who are to be transferred against their wishes need
to be given clarity, and those who do not wish to be transferred need
to know what their rights
are.
Mr.
Sutcliffe:
I am grateful to the hon. and learned Gentleman
for making an important point. If the Committee will allow me I shall
go through what the schedule will do, as it relates to issues other
than employment.
The
schedule sets out what will happen when a local probation board ceases
to exist during the transitional phase and, later, when business is
transferred fromone provider of probation services to another.
Itcovers transfers of property and staff under those
circumstances, in each case enabling the Secretary of State to make a
scheme setting out how the transfers will
occur.
Paragraphs 2 to
4 enable the Secretary of State to make a property transfer scheme to
transfer to him the properties and liabilities of a local probation
board or relevant person—in other words, a provider of probation
services. They also enable him to make a scheme to transfer property
and liabilities in the other direction, from himself to a relevant
person. In practice, probation boards do not hold significant assets.
The probation estate, for example, is the property of the Crown and
will remain so. Boards’ property is largely confined to office
machinery, including workshop machinery for unpaid work, IT equipment
and
vehicles.
Paragraph 3
states that a property transfer scheme will take precedence over any
other provisions that would restrict transfers. Compensation for the
loss of right of reverter is to be paid by the transferor and/or
transferee as appropriate, and the scheme may include a mechanism for
resolving compensation
disputes.
Paragraphs 5
and 10 are on staff transfer schemes. Our overall aim is to ensure that
staff who transfer between providers of probation services have their
terms and conditions protected by law. In many cases, the Transfer of
Undertakings (Protection of Employment) Regulations 2006 will provide
the appropriate level of protection. In cases to which TUPE does not
apply, paragraphs 5 to 10 will enable the Secretary of State to make
equivalent
provision.
Paragraph 5
is intended to cover the various permutations by which transfers might
occur. It enables the Secretary of State to make a scheme to transfer
employees of a local probation board to another provider of probation
services; to transfer employees between probation trusts or other
providers, or to transfer employees from providers of probation
services to the civil service and vice versa. In the circumstances that
the hon. and learned Gentleman outlined, I would say that such an
individual had resigned. It is important to note that a scheme may not
be made unless any directions about consultation given by the Secretary
of State have been complied with.
Paragraph 6 provides that when
an employee is transferred under the scheme, his continuity of
employment will be maintained and the rights, duties and liabilities of
his previous employer transferred to his new one. An employee will, of
course, be at liberty not to accept a transfer to a new employer, but
in that case his contract will be terminated and he will not be treated
as having been dismissed for the purposes of the Employment Rights Act
1996. In other words, he will not be entitled to compensation as he
will be considered to have
resigned.
Paragraph 7
makes similar provision in relation to employees of probation boards
who transfer to the civil service and paragraph 8 does the same for
civil servants who transfer to the employment of a probation trust or
other provider. Paragraph 9 makes it clear that the schedule does not
prejudice an employee’s right to terminate his employment if his
working conditions are changed substantially to his detriment.
Paragraph 10 states that if a contract of employment with either a
board or a trust is not transferred to a new employer, the contract
will be terminated and the employee will be treated as having been
dismissed for the purposes of the 1996 Act. The employee would
therefore be entitled to compensation.
I am aware of the concerns
expressed by staffabout what the future holds and the
implications for them as individuals. Such anxieties are entirely
understandable, but I believe that the provisions in the schedule
demonstrate our commitment to safeguarding employees’ position
when any changes take place. I hope that the hon. and learned Gentleman
will be happy with that
explanation.
Mr.
Garnier:
I listened to the Minister, and no doubt everyone
else in this room did as well, but who will do the more public
explaining? Will he make a point of visiting employees of the current
probation service to explain precisely what schedule 2 will mean for
them? Will his officials go out proactively before the Bill becomes an
Act to ensure that people working for the Government know precisely
what their rights are and that they resign if they do not like what
will happen, or is that something that people will just have to find
out by reading the
legislation?
Mr.
Sutcliffe:
I will take no lessons from the Conservative
party— [
Interruption.
] The implication is
that the Government do not want to protect
employees—
Mr.
Garnier:
I want it to be clear that I am simply asking for
information. The Minister should not be over-sensitive. I know that the
Government are in a hell of a mess, but he should not be too worried. I
am simply asking how the matter will be dealt with. He is a reasonable
man; he would not want anybody to be left in the lurch or not to
understand the implications of his policy. I am simply asking about the
mechanics of making the measures known to the people who will be
affected, not criticising
him.
Mr.
Sutcliffe:
The hon. and learned Gentleman not only says
that I am not analytical but wants to tell me how I should respond to
his prompting. He asked
whether we will communicate what individual employees’ rights
are. I put on record this Government’s success in employment
rights, which I am happy to have furthered in my role as Employment
Minister in the Department of Trade and Industry, and the various Acts
that we have
passed.
In no way will
we not communicate with our work force about what will happen. We have
been doing that regularly. The hon. and learned Gentleman
mighthave information from the National Association of
Probation Officers, a trade union, about its members’ concerns,
and he might have seen what the Government have done to respond. We
have made pledges to staff and continue to make them.
I have no doubt that the
fullest of consultations and discussions will be held about what the
future holds. I hope that some of the scaremongers will desist and that
we can get down to ensuring that those doing what we all agree is a
difficult job in difficult circumstances see their futures mapped out
as quickly as possible. We will give them the fullest of opportunities
to understand what the future holds for them. I have no hesitation in
saying that employees will be fully informed about the future in direct
mailings either from me or from officials.
Mr.
Garnier:
I had not intended to touch a raw nerve. I simply
asked how those who work for the probation service would be told about
the contents of schedule 2. We all know that the public are not
enthusiastic readers of legislation, albeit because an awful lot of
Bills have come from the Minister’s Department.
Clearly, I have pressed a
particularly sore point, and I apologise to the Minister for upsetting
him at this hour of the morning. He knows my concern that the public
and particularly those affected by schedule 2 should know of its
contents and how it will affect them. No doubt he will put in hand
arrangements to ensure that they do. It has nothing to do with pressure
from outside bodies or anybody else. I am simply a humble seeker after
truth, and that was my intention in inviting him to comment on schedule
2.
Question put and
agreed
to.
Schedule 2
agreed to.
It
being twenty-five minutes past Ten o’clock,
The
Chairman
adjourned the Committee without Question put,
pursuant to the Standing
Order.
Adjourned
till this day at Two
o’clock.
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