Examination of Witnesses (Question Numbers
416-458)
Clive Martin, Rob Smith, Chris Wright and Andrew
Neilson
18 May 2011
Chair: Good morning, Mr
Martin, Mr Smith, Mr Wright and Mr Neilson. We welcome you very
much and the help you are going to give us because we are working
on the role of the Probation Service. There is so much change
going on, and we have so much experience collectively at this
table that it would be very helpful for us to have the opportunity
to ask you some questions about it. I am going to ask Elizabeth
Truss to begin.
Q416 Elizabeth Truss:
I start by asking about the impact that the creation of NOMS has
had on the ability of the voluntary sector and other groups to
get involved in probation services.
Clive Martin: In
principle, it has had an effect in that it has been very welcoming
to the voluntary sector. It has clearly put the voluntary sector
as a key player in a mixed market provision. Over and above that,
the ambitions that were stated in the original creation of NOMS
have not materialised up and down the country. There have been
some interesting initiatives but they have not really materialised.
There has been a warm embrace, and that is not to be underestimated
given some of the hostility that the voluntary sector faced in
the past, particularly in prison establishments and elsewhere.
It has not necessarily transformed the sector and it has not transformed
the volume of provision to offenders by the VCS, in my view.
Q417 Elizabeth Truss:
Would you say that that is partly to do with the level at which
NOMS was introduced? You had end-to-end offender management, but
starting at a national level rather than binding those local services
together.
Clive Martin: At
the point at which NOMS was introduced it was enormously ambitious.
There were so many things going on. It was trying to implement
regional commissioning, a mixed market, end-to-end offender management
and through-the-gate provision. There were a number of things
in the package.
Q418 Chair:
They are mostly expressed in a jargon that outsiders would find
very difficult to understand.
Clive Martin: The
appointment of regional offender managers was a step or a nod
in the direction of regional government, which was the flavour
at the time and is no longer so. It was a step of decentralising
towards regional structures. The appointment of regional offender
managers was also an attempt to draw together the management of
the prison and probation services, which had been entirely separately
managed up to that date. The way the sector worked prior to that
was very much in prisons or in the community. That had previously
always been quite protected because it was seen in terms of security
and necessity.
The introduction of NOMS was a very ambitious
programme, trying to do lots of reforms all at the same time.
That led to quite a bit of confusion. Going back to your point
about whether, if things had started on a more local basis, it
would have been successful, we just don't know. Particularly the
Prison Service, at that time, was a culture that was very centralised.
People locally were very nervous to take decisions that could
have been out of step with what the centre proposed.
Andrew Neilson:
Can I just pick up on Clive's points there? It is symbolic of
the difficulties that NOMS had that it did not have a definitive
strategy for dealing with the voluntary sector until some four
years after NOMS was set up. The interesting thing from the Howard
League's point of view is that we have seen a gap between rhetoric
and reality around the creation of NOMS and the engagement of
the voluntary sector. The very things we hear, politically, that
people value from the voluntary sector—smallness, localness,
diversity, innovation and distinctiveness—are the sorts
of things that have found themselves in difficulty under the market
reforms that NOMS introduced. We saw a lot of small providers
finding it very difficult to get engaged. That is partly to do
with the language problem, and the bureaucracy and forms that
they had to fill in. Also, as Clive was saying, it was to do with
the drive to scale up things and the difficulty for small organisations
to do that.
Q419 Elizabeth Truss:
Have you seen a change in the culture of both the Prison Service
and the Probation Service, and whether there is more willingness
to work together to create an end-to-end solution?
Andrew Neilson:
There was a willingness, but the symbolic incident or process
that happened that sums up why NOMS really failed was the C-NOMIS
IT system. That project was all about linking prisons and probation;
they would have the same IT system. If they can't share information
easily, it is very difficult to have an end-to-end system and
it is very difficult to design a market around it. In the end,
that failed. They do not have an IT system that they can share.
It works only in prisons; it does not work in probation.
Q420 Elizabeth Truss:
In an ideal world, how would things work best for you to be able
to fit in at a local level as appropriate? What sort of structure
would work for you?
Clive Martin: With
both prisons and probation.
Chris Wright: There
has to be some clarity around commissioning—who is responsible
for commissioning and what is it they are commissioning? One of
the challenges of NOMS over the past few years is that it has
been very internally focused. It has made a lot of very positive
external noises about what it wants to achieve. We have had a
whole range of different commissioning strategies developed, first
by regional offender managers, and then directors of offender
management. The problem has been that they have not translated
into an operational reality where there has been a coherent approach
to commissioning at a local level. We want to have some clarity.
Q421 Elizabeth Truss:
Essentially what you are saying is that the commissioning role
should be clear and it should be at a more local level than the
regional level. The regional level is too distant to achieve that.
Chris Wright: I
am not sure I am saying that. I am saying I think there needs
to be greater clarity around commissioning and it may happen at
a number of levels, depending on the types of services that are
being commissioned. Of course there will be services commissioned
at a local level but, because of issues around scale, there will
be services that need to be commissioned on a more national and
regional level.
Q422 Elizabeth Truss:
Rob, do you generally agree with that?
Rob Smith: Yes,
absolutely. There has to be a mixed approach. On any national
or regional commissioning basis, what we are constantly striving
to achieve is to make sure we have that local agenda—that
localism—with small and medium-sized voluntary sector organisations
engaged. There is a tension within the system when you start moving
to regional and national commissioning arrangements, particularly
when you have prime providers, about how you engage with them.
That has been a concern from smaller—
Q423 Elizabeth Truss:
Who should be the commissioner?
Chair: That is a good
question.
Chris Wright: It
is a very good question. There is a real tension at the moment
around probation trusts and the role that they will play—whether
they are going to be providers or commissioners of services. Clearly,
NOMS has a responsibility to set out a framework that facilitates
commissioning. We perhaps anticipated that probation trusts would
take on the mantle of commissioning at a local or sub-regional
level.
Going back to an earlier question about how the Prison
Service and Probation Service have responded to the voluntary
sector, it is very difficult to talk about the voluntary sector
as though it is a collective whole because it is very different.
We are a relatively large voluntary sector organisation, but we
take pride in operating at a local level. We are still waiting
to see the Probation Service engage with the commissioning agenda
and open up opportunities for the voluntary sector. It has become
almost a joke that until a few years ago, when probation areas
were required to spend 10% of their budgets on the voluntary sector,
they didn't manage to do that.
Q424 Elizabeth Truss:
But essentially you are saying that it should not be the probation
trusts that have that commissioning role.
Chris Wright: If
they have a commissioning role, they have a commissioning role.
It is not necessarily to be confused with a provider role.
Q425 Elizabeth Truss:
Is there scope to have a broader commissioning role that encompasses
both prisons and probation? That strikes me as one of the issues.
Clive Martin: If
you get probation as the sole commissioner, you get probation
commissioning. If you have the Prison Service, you have the prisons.
If you are trying to get a joined-up service for someone who is
in custody, outside custody or returning to a community, then
you need a commissioning structure that reflects all of that.
There are similar structures like a local criminal justice board
or whatever. It's a cliché, I know, but if you want some
sort of joined-up, holistic service, and you don't just want that
pandering to vested interests but you want some innovation and
something different in there, you have to try and change the commissioning
structure to do that. Something that makes sure that you bring
in those community organisations or even things like local authorities
is key.
Q426 Elizabeth Truss:
Essentially, though, if the commissioning body is also a provider,
you are in severe danger of a conflict of interest, aren't you?
Clive Martin: I
don't know whether we have one view on this. I would certainly
see that one of the difficulties of NOMS being a commissioner
is the fact that it is a commissioner and a provider. I guess
it depends on how much you believe in the ability of internal
glass walls and all those sorts of things to overcome that sort
of structure.
Q427 Chair:
But if probation trusts aren't both commissioners and providers,
the way we are heading is that there will be nobody local enough
to engage people like yourselves in projects. We are going to
come on to this in more detail in a moment. The probation trust
might end up as the only intermediary between a very large commissioning
body and yourselves. I am thinking of yourselves now as locally-based
groups of people providing a service. If the probation trust itself
cannot take on some of the work and sub-contract it to people
like you, there is no opportunity for you, is there?
Clive Martin: Rob
might want to talk about that. The shift to seeing the probation
trust as being a local broker rather than a local provider—and
included in that might be some commissioning role—is a way
to go. The experience in West Mercia is a particular example of
one way of moving in that direction.
Rob Smith: I am
just trying to work out in my own mind what, specifically, small
and medium-sized probation trusts would be looking to commission.
There is more in terms of their role of being a broker and a co-commissioner
and influencing other commissioners locally, particularly within
the local authority, to have the other contributors at a local
level in terms of accommodation providers, education and training,
and all the different seven reoffending pathways, and getting
those other agencies involved in commissioning services that specifically
meets the needs of offenders.
Probation is a very small organisation at a
statutory level locally, but it has the ability to be strategic
and to influence those levers to allow housing organisations,
CABs and mentoring organisations to deliver services on the back
of other commissioning strategies. That is the trick at a local
level for probation to be able to pull off.
Q428 Mr Llwyd:
I should declare an interest. I am on a Howard League panel that
is reporting in June on the preponderance of ex-service people
in the criminal justice system.
The Government's Breaking the Cycle document
refers to "a need to signal a clean break with the controlling,
centralising tendencies of the past by making a clear commitment
to decentralisation". I know, for example, that members of
Clinks have said that they very much approve of measures to devolve
delivering accountability to the local level. On Monday of this
week, I was at a conference in Manchester. People's biggest concern—and
I am speaking of those within NOMS and without—was that,
for example, Wales and the north-west was one commissioning unit.
It seems to me that that is going to militate against any idea
of local delivery, quite frankly. Are we not going to end up with
a few very large providers and maybe a very few voluntary organisations
just chewing at the edges?
Andrew Neilson:
That is one of the reasons why the Howard League has advocated
in the past more local authority involvement in criminal justice.
I know that the Committee previously also looked at that in its
justice reinvestment report. Is the regional level really the
right level for this? In Scotland, they have criminal justice
authorities where probation is within the authority alongside
local authorities, police forces and the Prison Service. It is
a more localist model, whereas we seem to have a lot in the centre
and then at the regional level.
Q429 Chair:
These are not regions, are they? These are arbitrary constructs,
including West Yorkshire with Northumbria, but South Yorkshire
in a different region. They are vast areas.
Rob Smith: These
are what I would call pan-regional lots. West Mercia is in the
same lot as the Isles of Scilly. I stand to be corrected, but
in relation to the specification for the community payback, which
is being let on that basis, we don't yet know what scope there
will be in terms of incentives and the ability to get those prime
contracting organisations to engage at a local level. We don't
know the detail of it. There is a big concern there because community
payback, in particular, is such a large provision in a probation
trust's activities on a local basis. Locally, within West Mercia,
there have been some incredibly innovative ways of delivering
community payback, which is heading towards cost-neutral in some
cases. Will that be lost in these large commissioning arrangements?
Will local voluntary sector organisations lose out? Our concern
is that they will.
Q430 Mr Llwyd:
To sum it up, you are all saying that there is a lack of clarity
here that is rather worrying, given where we are.
Clive Martin: The
other issue on commissioning is the fact that in this area the
evidence of what works is not entirely clear. We have a recent
tradition, for example, of lots of money being invested in cognitive
behaviour programmes. Some have worked and some have not. We now
have some alternative theories about what works in terms of desistance
theory, both from North America and this country. From our point
of view, it doesn't feel as if there is a clear consensus around
the evidence of what works. Therefore, there is a slight danger
at the moment that you could get commissioning that is a bit arbitrary
and based on almost historical practice. Some probation and prison
investment is still quite heavily loaded towards cognitive programmes,
whereas the desistance theory, which is very compatible with the
way in which voluntary sector services are delivered, is not entirely
embraced by the whole of NOMS. You have this question of what
evidence there is for what works and what counts, and shifting
investment in the face of new evidence.
Q431 Mr Llwyd:
Is there not also a problem that, if you have a very large commissioning
area, it is going to be difficult to bid in order to provide for,
let us say, certain forms of prevalent crime within inner city
Liverpool and, say, rural Lancashire and rural north Wales?
Clive Martin: Yes,
very much so, and in terms of different communities as well. You
have parts of the country, for example, where the number of offenders
from black and minority ethnic communities are disproportionately
higher than others. You need very localised commissioning in order
to meet the needs of those people to ensure safer resettlement.
The closer you can get to the commissioning matching the needs
of the local population, the better.
Q432 Mr Llwyd:
A general question: what does the voluntary sector have to offer
that the probation trusts currently do not have?
Rob Smith: It depends
what the role of the probation trusts is going to be to a certain
extent. In West Mercia, the YSS is a voluntary organisation that
has a preferred partnership arrangement with the West Mercia Probation
Trust. What it is asking us to concentrate on and what it feels
our set of skills and abilities is about is offering that key
relationship with individual offenders, which is different from
the offender management role. The offender manager is almost distant
doing that analysis and that case management role, whereas we
will concentrate on doing that one-to-one relationship role, bringing
local providers into that network of provision that we are developing.
It is almost a split between offender management and offender
interventions.
They recognise that other organisations are far better
placed to deliver on offender interventions from the local community
than probation trusts. We have seen a split there between the
roles. They recognise we have a little more flexibility and freedom
to operate. We can be more responsive to the needs and risks being
posed by individual offenders. We are able to project-manage in
a way that is different from probation trusts, particularly when
we start talking about trying to thread together a whole range
of different funding streams to be able to create new services
and to innovate. They are the type of things that they have hallmarked
as being unique about the voluntary sector locally.
Chris Wright: I
don't think any sector owns the total knowledge about how to do
things. Commissioning should be about creating an opportunity
to bring in different delivery models and ideas. We are an organisation
whose roots are in the founding of the Probation Service, back
in the days of the London Police Court Mission. It has almost
come full circle in a way. The important thing is to commission
the right kind of services that are going to achieve the right
kind of outcomes.
In his evidence to you, Ian Poree talked about
the Probation Service representing a national expertise around
offender management and so forth. I think it is broader than that.
There are lots of organisations that have an expertise and knowledge
about how you can help and challenge offending behaviour. I believe
commissioning provides an opportunity to bring some of that experience
and talent to delivery.
Q433 Mr Llwyd:
How would you respond to the notion that subjecting a large part
of the probation trusts' work to competition risks fragmentation
and ultimately the very future of the probation trusts themselves?
Clive Martin: That
is a key issue at the moment. The market is fragmented. So long
as we have services put out to competition on a discrete basis
without anyone thinking about the process of how they are joined
up for the person who is at the receiving end of them, we face
a real danger of fragmentation, which is heightened by the fact
that there is no common, usable IT system that can transfer records.
It is almost like thinking about the NHS trying to work without
patient notes. It is the equivalent in some way, because you have
records about people, and their needs and services, held in different
places. There is no common way of sharing that without some quite
complicated to-ing and fro-ing of people.
You make a system more complicated for people who
don't start in a positive place about the system's ability to
meet their needs. You then make it more complicated for them to
access that system. It is not a happy mix. That is where the voluntary
sector helps, particularly in relation to things like mentoring
and assisting in that joining up. It is interesting that the payment-by-results
pilot in Peterborough prison is not so much about the provision
of new services, but about the joining up of services for people
who are on short-term sentences. There is some limited money to
provide new services, but the bulk of the investment is around
joining up and making the service a comprehensive whole.
To touch on your previous question, the other
issue about the voluntary sector is around public confidence.
The public generally still trust charities and the voluntary sector
more than they do others. When you have voluntary sector engagement,
you have voluntary sector governance. You have volunteers. You
have a huge group of the public who are able to get involved in
the criminal justice system in that way. Public engagement in
the criminal justice system is quite key to confidence in the
criminal justice system. People do volunteer for probation trusts
and things like that, but that has pretty much died off. Volunteers
in probation services and prison services, by and large, come
from the voluntary sector. YSS is a good example of where you
have a local voluntary sector organisation. I think you still
have some magistrates on your governing body. It is no surprise
that it has been successful in the community because of the way
in which there has been community confidence at all sorts of levels
and what is delivered through that. That means community confidence
in the criminal justice system. That is quite an important and
distinctive role of the sector as well.
Q434 Mr Llwyd:
You will know that the Government intend to publish a comprehensive
competition strategy for prisons and probation in a month's time—in
June 2011. What would you like to see in that strategy, apart
from clarity?
Andrew Neilson:
Detail.
Chris Wright: This
issue around fragmentation is critical to that. The existing arrangements,
as Clive indicated, are pretty fragmented. A large amount of activity
that is required to address offending behaviour is outwith the
budgets of probation trusts and/or NOMS. This is probably me being
very tedious, but it is about commissioning. It is about making
sure you have proper co-commissioning arrangements, where each
and every agency that has a responsibility for services which
can be directed at those who require them in order to address
their issues is working collectively. The competition strategy
cannot be seen in isolation from a whole range of other organisations
that have a responsibility for commissioning services for those
who offend. That is one point.
We want to see something in the competition
strategy that addresses some of the barriers to entry. I appreciate
this is not necessarily a popular point. It is very difficult
for us as a voluntary sector organisation to pick up so-called
statutory work from the Probation Service because we can't handle
some of the risk around public sector pensions and so forth. That
acts as a major block for even decent-sized organisations. Smaller
voluntary sector organisations will be able to pick up only the
so-called "add ons", I guess. We have to deal with that
around creating some kind of level playing-field.
There are ways around it. I understand that
the NHS pension scheme has something called NHS Directions that
allows voluntary sector organisations to join. The ongoing liability
of the pension fund is the responsibility of the NHS pension scheme
itself and not the provider, whereas with the local government
pension scheme, of which I believe the Probation Service staff
are part, the responsibility for the pension pot transfers with
the transferee to the provider. That creates a major block to
the VCS.
Q435 Chair:
Essentially, you can put the people who are employed in the schemes
into the NHS pension scheme.
Chris Wright: You
can, yes. For example, in substance misuse contracts funded through
the NHS, yes, that can happen.
Q436 Chair:
But you can't do that through a local government scheme.
Chris Wright: You
can't do that in a local government or, indeed, a civil service
pension scheme. It is a real challenge.
Q437 Chair:
When that is the case, what do you do for your employees?
Chris Wright: You
make a decision that you can't take the risk. You can't bear the
risk and therefore you decide not to compete for the opportunity.
Q438 Chair:
You are not in a position to offer them a job with contributions
to a private pension scheme, and it is for them to decide whether
that is an acceptable option for them.
Chris Wright: This
is the pension code—I can't remember the exact title of
it. It is not so much the issue of TUPE; it is to do with the
pension code. You have to offer a broadly comparable pension to
the pension that is being provided by the existing service delivery
organisation. We are in a position where we can make the contributions—if
the employer's contribution is 9% and the employee's contribution
is 16%, that is fine—but it is the gap that grows in the
fund which we can't carry the risk for. Unless we deal with this,
the market will be open to large-scale private companies who are
able to carry the risk, although they indeed will be quite concerned
as well.
Q439 Chair:
They are unlikely to offer the same provisions as the NHS.
Chris Wright: No,
but they are more likely to be able to carry the risk of the gap
in the pension pot at the end of a contract. If they lose the
contract and it goes back to whoever, the gap in the pension fund
is more likely to be covered by a large multinational organisation
than it is by a mid or small-sized voluntary sector organisation.
It is a risk that we cannot take and is a major block if you are
going to take on services that are currently provided by existing
public sector providers.
Rob Smith: Some
of those contributions—I know you mentioned 16%—have
been creeping up and up and up. Some recent examples were 25%
and potentially heading to 30%. As a medium-sized local voluntary
sector organisation, we have had to opt out of bidding for contracts
at a local level. They are not huge contracts—about £200,000
a year—and well in our comfort zone. We have the competencies
to undertake them but we cannot take the TUPE risk. We have not
been able to bid for them, and much larger organisations have
come in and won the contract almost unopposed in a number of cases.
There are some interesting ways of possibly
getting around some of these types of issues and the whole idea
of this Total Place. Worcestershire has been a pilot for that,
looking at co-location and secondment arrangements. There are
different ways around it. At present in YSS we have seven or eight
members of staff seconded for a particular project from the Probation
Service. We are meeting the cost that we would normally meet for
those individuals, but the costs over and above what we would
normally expect to pay will be met by the probation trust. As
and when those individuals leave, YSS will be in a position to
be able to recruit those posts directly on our normal terms and
conditions. There can be different ways of getting around and
managing that, but it really does require you to do some fast
thinking on the ground as quickly as possible.
Chris Wright: Absolutely.
As Rob says, you can share risk, but you have to have the motivation
from the commissioner to want to enter into those kinds of negotiations.
Our experience in local government is that at the moment there
is not much enthusiasm for some of the ideas that we have put
forward.
Q440 Ben Gummer:
Just to flesh out one point, because you were talking about the
pensions and it not being an issue of TUPE, I have heard consistently
from providers that TUPE is an issue as well as pensions. Can
I get that as a confirmation from you or do you disagree with
it?
Chris Wright: If
we have a blanket argument that TUPE is a problem, I think it
is elements within TUPE which are the issue. Within TUPE, there
is flexibility around economic, technical and organisational reasons
for changing the staffing structure. It is about whether the funding
comes across to cover redundancies and so forth. I wouldn't say
there are no problems with TUPE. I think the biggest barrier to
entry is the public sector pension issue.
Q441 Ben Gummer:
The thing that strikes me about this discussion, and it reflects
the inadequacies in the MoJ's pilot projects so far, is that it
is still built around our existing understanding of geographical
commissioning. In fact, if we are going to try and look at this
in its purist form, we should be commissioning by person at the
nearest point to sentencing as possible. Geography ceases to matter
at that point apart from the local provision of services, which
would naturally flow from commissioning locally at the court or
as close to the sentence as possible. As a preface to a question
about the information provided that you would need to be able
to bid successfully and the size of the commissioning unit itself,
if I can put it inelegantly like that, how small could you bid
for contracts? In the final event, could you get to a point where
you are bidding a month after sentencing for individual customers
to take them on through their offending rehabilitation journey
from end to end?
Rob Smith: On a
spot purchase, we haven't, no. On a small scale.
Chris Wright: It
is scale; it is about quality as well. It is about how you ensure
you have sufficient awareness of the money you are bringing in
to make sure your staff are adequately trained to do the work
that you require them to do. It is an issue of scale. Smaller
organisations are still going to have their fixed costs to cover.
It is how clever the commissioning arrangement can be which allows
some funding up front to cover some of the fixed costs and have
the availability there.
Q442 Ben Gummer:
Do you have any idea of how large that cohort would be? I know
it is an impossible question.
Rob Smith: It depends
on the service.
Chris Wright: The
idea of having that kind of very, very local commissioning would
scare me. Having the right kind of capacity and resource available
which is fit for purpose would be quite a challenge. There would
be costs that you would be bearing which you might not be able
to cover.
Andrew Neilson:
The problem also with the criminal justice system is its focus
on the individual with the term "offender management"
and the management of individuals. A lot of the lessons from America
and elsewhere recently, in the movement of justice reinvestment,
show that place is important. It is just how big the place is
and how you structure it. Two of the payment-by-results pilots
are going to be local authority-based. Personally, I think they
will be the most successful because of that. I wouldn't overly
obsess about the individual. The system has struggled to do that.
In the hypothetical situation that you are positing, we are very
far away from having the infrastructure and ability to do that.
Q443 Ben Gummer:
That is a very fair point. On that basis we can talk about the
financing of this. Let us assume that you reach a point where
there is a realistic group of people that you can bid for. I know
it is the worry of smaller organisations that they won't be able
to find the finance to pay for the PBR journey. The medium and
larger-sized organisations that I have spoken to at least don't
worry about that so much, but they are concerned about their interaction
themselves with smaller organisations that they want to involve
on a local level. How are you developing your thoughts about financing
and your relationship with larger commissioners?
Rob Smith: I was
just surprised by the comment of medium and larger-sized organisations
not being concerned so much about the payment-by-results model,
because it is absolutely critical. It means so many different
things to different people and there are so many different versions
of it out there. If you are talking about a payment-by-results
contract where maybe 70% of the funding is potentially guaranteed
subject to satisfactory performance, and then 30% is an element
of outcome-based targets that have been agreed, perhaps in negotiations
in the contract, a smaller and medium-sized organisation might
be interested. If you are talking about a switching round of those
ratios—and I am not speaking for your organisation, Chris—even
for an organisation of your size that would be critical.
Chris Wright: It
would. Working capital is a critical issue. We have a payment-by-
results contract at the moment where we are trying to resettle
young men coming out of prisons in and around London and get them
into employment. The payment is based on sustainable employment
and it is a challenge. On this particular contract, the funder
paid an initial start-up fee that gave us the capacity to get
going. In order to ensure that we cover our costs each month,
we have to hit our targets and get people into employment. That
is a risk we have to factor into our overall financial arrangements.
We are the delivery partner for Serco at Doncaster
prison. We will be running the PBR element of that contract, and
Serco will be managing the cash flow, so working capital isn't
going to be an issue there. Obviously, the issue for us will be
in ensuring that we deliver the outcomes and do not expose ourselves
to financial risk.
In principle, I am very enthused about PBR.
We enthusiastically welcome the idea that you are commissioned
to deliver outcomes, as long as there is the corresponding relaxation
around input control and so forth, but we have to deal with issues
around working capital. The difference with the social impact
bond, where the investors carry the risk around the funding, is,
maybe, a way forward. You may ask questions later about the big
society bank.
Q444 Ben Gummer:
I am sorry; it is my fault for not explaining properly. You have
just demonstrated my point. For an organisation that is set up
to have those relationships, financing is possible, but for micro
local organisations it is very frightening. There is not the infrastructure
in place anyway to get working capital to bid for contracts of
the kind you have at Doncaster and elsewhere. How do you see those
relationships being managed, either with yourselves being prime
contractors, or as small local organisations wanting to take on
contracts themselves? It is not a very level playing field, is
it?
Chris Wright: It
is not a level playing field. I was just going to go on to say
something about the big society bank. Will that provide an opportunity
for providing capital for those small organisations? The mindset
will have to change fundamentally.
Rob Smith: It is
a complete culture change, yes.
Clive Martin: Both
your questions are really interesting. In some ways it depends
what is happening in a locality. For the spot purchase question,
for example, if you take somewhere like Scarborough, where you
probably have a number of voluntary sector organisations involved
in getting people who aren't offenders into employment, and you
have a fairly low number of offenders returning to Scarborough,
you can perfectly imagine spot purchasing something from an established
organisation, the bulk of whose business comes from elsewhere,
to deal with this client group. If you are talking about some
other areas of the country, where you don't have a local infrastructure
already to spot purchase from, or you are talking about a service
that is particularly needed, it becomes much more complicated.
It slightly depends on what is happening locally.
It is the same in some ways with payment by
results. The social impact bond is interesting, where the risk
is not with the deliverer but with the investor. It also depends
on a number of fairly strong organisations within that locality
who, at the moment, are not running by payment by results. They
are running by a grant system, a contract system or whatever.
At the moment, it seems that payment by results, in its transition
stage at least, will probably have the best chances of success
where there is quite a strong local mix of voluntary sector organisations
that can sometimes pick up payment-by-results contracts and spot
purchasing. If that is the totality of their funding mechanism,
they will probably be in trouble.
Andrew Neilson:
You have to recognise as well that social impact bonds and payment
by results are two different things. Peterborough is doing something
the statutory sector doesn't do. It is providing support to short-sentence
prisoners when they leave. It is funded by social finance. Anecdotally,
I have heard that almost all the social finance that is interested
in criminal justice is currently sunk into this project in Peterborough.
If we are talking about putting that to scale, where is that money
going to come from? Peterborough is quite a long project. I don't
think it is going to attract huge amounts of new social investment
very quickly. The answer is that it is going to have to be private
investment. If we are going to have some model where investment
is put up front and the risk is not taken on by the provider,
it will have to be private investment. Again, they will not take
on huge risks.
Q445 Ben Gummer:
I have one final question about inputs and outputs. You talk about
reducing input controls from the commissioners. Could you say
how far you would like that to go? In terms of outputs, should
there be one output only—reoffending? You can judge how
you wish to do that and leave that completely up to the provider.
Chris Wright: You
need to have a minimum standard of expectation in terms of the
service you are providing, and that needs to be specified. In
terms of how you do it, if you are going to put yourself at risk
around the contract, you need some flexibility about determining
what kind of service you are going to provide. Hopefully, you
will look to the evidence base to construct a service that is
going to deliver the kind of outcomes the evidence suggests might
be achievable. That is a big challenge around private investors.
They will be looking very clearly at what the evidence base says
before they are prepared to put up money in the hope of getting
a return. Managing some public sector commission contracts is
an experience to behold because of the micro-management and the
almost total control that is placed on us. The smaller you are,
the more control they try and impose; the bigger you are, the
more you can fight back a little bit.
Q446 Ben Gummer:
I am asking what controls are absolutely necessary over the kind
of contract that we are envisaging. What would you pare it back
to? Would it just be public safety?
Chris Wright: Absolutely.
Obviously there is financial prudence and so forth, but it is
not telling you how many times an offender needs to visit a probation
officer, for example. That must be determined by risk and judgment.
If the probation officer gets it wrong, there will be some kind
of accountability built into that.
Andrew Neilson:
Can I clarify whether you are asking if there are measures other
than reoffending?
Q447 Ben Gummer:
Yes, but that was the second question. You have dealt with inputs.
I suppose you agree with that. In terms of outputs, should it
be only reoffending, or should it be reoffending, job, home and
health?
Clive Martin: My
gut feeling about this is that you have to think about the offence.
If, for example, it is a sexual offence, you definitely need the
measure to be a binary one—they don't offend again and that
is it. That is the reality of the situation and that is what we
all want. The reality is that someone who is a persistent drug
user is going to be a different situation that has to be dealt
with. It is probably completely unrealistic and setting the situation
up for failure if you go only for the reoffending measure in the
first instance and don't do some intermediary measures such as
registering with a GP and being on a drug treatment programme.
I know it sounds a bit like fudging it, but it seems to me that
only thinking about it in one way is probably not helpful. We
probably need to think more about the offence, the evidence about
how that offending is stopped and the public interests in that.
Q448 Ben Gummer:
But that should be left up to you, not to the commissioner of
the contract, shouldn't it? If it requires someone to get off
drugs and not to reoffend, stopping them reoffending would be
a function of the success that you have had in getting them home
and off drugs.
Clive Martin: Yes.
Q449 Ben Gummer:
That shouldn't be measured within the contract, should it?
Clive Martin: It
might be in terms of being a different time period. It depends
how long the time period is there and the timing of the point
at which the measure is made.
Andrew Neilson:
The one you would want to be wary of is public safety. Public
perceptions of safety often have very little to do with crime
in their actual local area. All you need is a big, lurid national
story in the tabloids, and, if people are asked how safe they
feel, they will say they don't feel very safe at all. That may
have no bearing on how safe they actually are and how safe their
neighbourhood is.
Q450 Mr Buckland:
I want to come back to commissioning and look at the reality of
the process. A defendant is convicted or pleads guilty. The probation
officer who is given the job of writing the pre-sentence report
really initiates the process in every case. They assess the offender
and then they themselves look to see what options could be available
to the court for sentencing. It starts from them, if you like.
Mr Gummer's point about the individual is an important one because
it does start from an individual basis.
Taking that as the
reality, could there be an analogy with the health service when
it comes to commissioning? There could be local commissioning
for high incidence outcomes such as community payback or probation
supervision, for example, with weekly meetings and interviews
or group sessions. There could be national commissioning for very
low incidence cases: for example, an offender with very complex
needs such as mental health and drugs. There may be a combination
of various things; it may be a veteran. Could that be the way
forward? There is a mixed picture when it comes to the commissioning
of national and local.
Chris Wright: It
is about the contracting arrangements you have in place. You may
well have a framework-type contract with a range of providers
available under the framework and you can draw down to respond
to the specific requirements being sought. When trying to answer
these hypothetical questions, my response is informed by the reality
that we currently experience. You suddenly think, "How can
that be achieved?", because it is quite complicated as it
is. We have a whole lack of clarity around commissioning, as we
have indicated already.
The point you make is a good one. When magistrates
or judges sentence, they read the pre-sentence report and are
obviously influenced by its content and the proposal laid out.
There is a sense of, "Right, yes, we need these kinds of
interventions in order to mitigate the risk this particular person
poses." Working back from there, there is a logic to it,
but it is how you do it and the complexity of that. The point
you make around more acute services being commissioned on a larger
scale, maybe looking at a framework arrangement, could be a good
way forward.
Andrew Neilson:
The complexity is also beyond the criminal justice system. One
of the problems in envisaging the ambition that the Government
have around payment by results is seeing it across public services.
If we talk about the individual, I like to think about "Bob".
Bob is on a community sentence and it is payment by results. Bob
doesn't have a job, so he is also on a payment-by-results scheme
through the DWP. If he doesn't go on to reoffend, who is paying
there? Is it the MoJ or is it the DWP? What if Bob was depressed
and he was also on a payment-by-results scheme with the Department
of Health? Who then pays? In fact, what if the reason that Bob
did not reoffend has nothing to do with any of these people but
that he found a good woman or he moved somewhere else? There is
a danger that the Government double pays, triple pays or is paying
for something that has nothing to do with them.
Rob Smith: He could
also be on community payback but still be a high-risk offender
and have a whole multitude of complex issues that need to be dealt
with on a local basis. One of the things we have tried to provide
to sentencers and offender managers in our innovative project
in West Mercia is to develop a menu of provision for the offender
managers. They will tick a tick-box based across the seven reducing
reoffending pathways, based on the intensity and responsivity
of an interventions programme and what it needs to look like.
We try to align resources locally to be able to meet that. Sometimes
that is about influencing local commissioners; it is about drawing
down funding ourselves; it is about using probation resources.
The idea of creating a menu that works across all of the needs
of an individual and tailoring it around them is what we are trying
to provide locally.
Q451 Mr Buckland:
It is also emphasising the fact that it is not just a responsibility
for the Probation Service but there are other agencies and departments
that need to be involved.
Rob Smith: Absolutely,
yes.
Q452 Mr Buckland:
I want to ask you about capacity. I think we touched on it fairly
substantially in some other questions. Obviously we have had an
economic downturn. Do you think that has had an impact on the
existing voluntary and charitable providers in terms of the potential
market that is out there for this provision? Has the downturn
had a negative impact on the range of providers?
Clive Martin: We
have just surveyed our members. There are some stark figures in
that. Over 60% of them are currently using free reserves to support
front-line delivery. That is a fairly dramatic situation for a
voluntary sector agency to be in because free reserves are quite
precious things. The Charity Commission has some quite strong
guidance about that. About the same number of people are on redundancy
notices and, at the same time, we are expecting an increase in
demand. You have all these internal pressures going on and you
have an increase in demand. It is a combination of the reality
of what is happening now and the fear of what might happen. Those
two things are going on at the same time. Combined with that,
there is a lot of fluidity in the statutory services themselves,
feeding the uncertainty—people they may have dealt with
in the MoJ or whatever it is. It is quite dramatic how rapidly
that is changing. There is both the financial impact on the operational
viability and also the restructuring of organisations that is
going on. Yes, it is a big issue.
Q453 Chair:
Mr Neilson was rather pessimistic earlier about the potential
for more finance coming from social impact bonds. We have had
at least one witness who was quite optimistic about that. Prima
facie, if more people were aware that this was a developing possibility
and if they saw more examples of it, it seems to me fairly likely
that there would be more people who would want to engage in some
kind of positive ethical investment and might come into this field.
Andrew Neilson:
But not necessarily in criminal justice. There are all sorts of
areas where social impact bonds could flourish. What we have found,
at least in terms of voluntary donations from the public, is that
the criminal justice sector doesn't attract that much interest.
There are more appealing groups that receive voluntary income.
That could—who knows?—be reflected in social finance.
Peterborough is a six-year project, and if we are
talking about the effects of the downturn, the Ministry of Justice
is engaged in 6% budget cuts year on year right now for the next
four years. Payment by results will not be able to prove itself
in that time frame. So what happens? In the end it comes back
to a favourite of the Howard League, which is that you cannot
talk about criminal justice without going back to law, policy
and attitudes. How many people are actually in the system and
should all those people be in prison or even in contact with the
Probation Service? That is going to become more and more urgent
to consider when you do have lowering budgets and yet the numbers
are staying high. Payment by results is not going to reduce those
numbers any time soon.
Rob Smith: In terms
of the social impact bond, we have been doing some work trying
to develop a project region for the last two years. The scale
you have to get to in order to make the cashable savings for the
Treasury appears so large and is very difficult to overcome. Agreeing
a set of metrics to a more rigorous standard that had probably
been initially worked out for the Peterborough model is making
it impossible to develop anything at present.
Andrew Neilson:
I know you had previous evidence from people involved in the Work
and Pensions programmes. They took 15 years to come up with what
they felt was a robust metrics. We won't have 15 years to do it
in Justice.
Clive Martin: For
social financial investment, the key place it works is where the
social cost of something not happening is very high and the level
of investment you need to correct that is relatively low. In Peterborough,
there has been a high social cost of people coming out of prison
unsupervised and a relative investment to achieve a change in
that, so the savings are quite remarkable. There is this ratio
between the cost of the investment and the savings it generates.
You can see that working in some other parts of the
criminal justice system if you look at statutory refinancing.
You can see local authorities wanting to invest in keeping young
people or women out of prison because the social impact cost is
so much higher. Outside that it is quite limited. In some ways,
you could imagine that insurance companies would have a vested
interest in trying to bring down rates of burglary because they
pay out on it and therefore their cost is high. Taking the model
of car crime, it wasn't solved by the Probation Service or anyone
else; it was solved by the manufacturers.
Where are the opportunities to get private company
investment where they are currently experiencing high costs and
a low investment rate would bring that down? That is where some
of the interesting thinking could go on about it. Without that,
it is quite difficult to see where it would happen. The thinking
at the moment is that the investment has mainly been through trust
funds, the Big Lottery fund and others. The return is quite high—it
is 7% or something—if it works. The risk is still high for
anyone else, so the market is quite sceptical because of the risk.
In the long term, it might well play out as different players
come in, but at the moment it feels like it is still too risky
an investment to think of the whole sector being funded in that
way.
Q454 Chris Evans:
I want to talk about community engagement and service user involvement.
Last Friday I had someone come to see me who worked on a drug
rehabilitation project. What he found was that people were given
drug rehabilitation orders, completing them and then going to
voluntary detox. What was happening was that these people lived
very chaotic lives and they were disappearing. They would appear
again only once they were in the criminal justice system. He found
that these people would come through the criminal justice system
six or seven times. The point that he was making was that nobody
had ever asked the offender and those who worked with former offenders
what could be done to improve this. What does NOMS do to listen
to ex-offenders and work on actively engaging them in the process?
Can you give any examples of when policy has been changed through
speaking to ex-offenders?
Andrew Neilson:
It is more common in the youth justice sector. The youth participation
agenda is starting to hit youth justice. The Howard League runs
a lottery-funded project around that. We would hope that that
would start to bear fruit in terms of young people saying something
and then it reflecting policy. Within the adult sector it is fairly
limited.
Chris Wright: There
is evidence that co-design is a very effective way of achieving
programmes that are going to have an impact. Going back to commissioning,
you have to ensure that you commission the right kind of services.
Commissioning itself can be influenced by those who are about
to benefit from the services. It is a mindset thing. Andrew is
right: it is very common in the youth sector. Much of our activity
is in the youth sector. Participation of the young people we work
with is absolutely critical to what we do. The views of young
people in custody have just been surveyed by the Youth Justice
Board. We need to translate that from the youth sector into the
adult sector because there is very strong evidence that engagement
is a powerful way of addressing offending behaviour. Desistance
theory points to offenders who have made a decision not to offend
any more. They point to the things in their lives that have helped
them make that decision by putting something back into the communities
in which they live. There is a strong evidential basis behind
this.
Clive Martin: We
published a report on it a couple of years ago.
Q455 Chris Evans:
That is what I want to come to next. Could I ask you a question
just to guide your comments a little bit? I haven't read the report
but I have some key elements of the report in front of me: personalisation,
influence, ownership, responsibility and expertise. I want to
focus your comments more than anything on this: coming from a
base where there doesn't seem to be much offender involvement,
how would we formulate policies and guidelines that encompass
all the aims that you include in the report?
Clive Martin: There
is some engagement. The field is changing rapidly. There is an
acknowledgment now that we need to engage sensibly with offenders'
views. In some prison establishments it happens. There are prisoner
councils. They have various roles, ranging from peer mentoring-type
roles to much more engagement around food, visiting hours and
things like that. It seems to me that we need to have direct discussions
with offenders around policy issues.
All sorts of work has gone on around peer mentoring,
all of which is good. That needs to happen with an idea of what
makes sense in terms of how you influence policy and how you sequence
events in an offender's life in order to change things round.
Things like sending someone on a drugs treatment programme when
their preoccupation is getting in touch with their children, and
acknowledging that as being a genuine issue, need to be reconsidered.
There is also the idea of prioritising resources so that an offender
is enabled to express what they think might make the most difference
to their lives in terms of reducing their reoffending rather than
what is available in terms of a programme.
It needs a systematic engagement. There are
problems with it. Some probation trusts, for example, have experimented
with having an offender on the board. That is quite complicated
because they have different powers from the other members of that
board and so on—they don't have the same legal responsibilities.
NOMS is moving to a position where it is trying to understand
how it can set up a direct dialogue with offenders. It is quite
a skilled role from an offender's point of view, so there needs
to be some training and support for that. People are also speaking
specifically around the issue that affects them rather than a
more generic, "Let's talk to an offender about what their
experience was of being in prison." That is not the point.
The point is, "What would be your guidance around how the
service should be designed for drugs?", if you are a drug
person, and so on.
That is our thinking on it. The reason for that
is we think that there is no real public service that has transformed
itself without engagement with service users. If you go to a Mind
conference now, you will find that 70% of the delegates are ex-users.
Service users have transformed service provision. That is why,
in our view, it is so crucial.
Q456 Chris Evans:
What type of offenders are you talking about when you are engaging
with them? When I was speaking to this chap—and we had a
very interesting conversation—he said that, particularly
with drug offenders, he found that they could stay clean for six
months but then all of a sudden hit a brick wall and their life
descended back into chaos. He said that the major problem with
designing anything was that they live very chaotic lives of which
many of us don't have any concept. We get up in the morning and
go to work, whereas these people have no concept of that. When
you are talking about offenders you are working with, which ones
are you mainly thinking about?
Clive Martin: Rob
might want to say something about this but, for us, it is across
the board. It is a complicated thing. It is quite difficult to
engage in because it is a label that people often want to move
on from. There is this thing about who you engage with, which
immediately means a self-selecting group. In our mind, you don't
have to be too fussy about who you engage with. People's views
are important, as are their families' views. Families' views are
largely untapped as a resource at all. In many cases, the reality
of it is that families are the effective offender managers. For
us, it would be open as to who we engage with.
Andrew Neilson:
There could also be some service user involvement at the point
of sentencing with the magistracy. We have talked about problem-solving
justice, which is a concept that comes from the United States.
The principles of problem-solving justice are that the sentencers
engage the offender before them to try to work out what the best
intervention is going to be, even at that very beginning point
at court. That is of interest and should be explored, although
the magistracy obviously has some issues about whether or not
that interferes with their concept of judicial independence.
Rob Smith: There
are service user frameworks out there. Local authorities particularly,
in a lot of the contracts that we have, have it as part of their
strategic agenda. They will commission us, and in that contract
it will require us to have a service user involvement strategy
and to provide feedback on an ongoing regular basis, which feeds
into the design of our services. It should be, right from the
start, in the commissioning process.
Chris Wright: It
happens at a number of different levels. It is about the engagement
in the first place. When you are working with somebody, you are
not doing it to them—you are doing it with them. You are
working alongside them and getting them to engage in what is happening
around them. That is the issue. The vast majority of offenders
are chaotic.
Q457 Chris Evans:
It has been very worth while hearing from you this morning and
it is all warm words when we are sitting here, but the huge issue
that we are now facing is nimbyism or the rise of nimbyism. When
you talk about community engagement and community rehabilitation,
I can think of several examples—even from before I became
a Member of Parliament—where there was strong local opposition
to any form of rehabilitation projects or any form of community
engagement. How can we overcome this rise of nimbyism that has
come about in the past 10 or 15 years?
Chris Wright: I
don't necessarily share a negative view. A lot of people in the
community want to provide support and assistance to people who,
within their communities, might be causing difficulties. Some
10 years ago I was involved in the roll-out of the referral order
in the youth justice system, which required a recruitment campaign
of volunteers who would be involved in making decisions around
what activities young people would be required to undertake as
part of a referral order. This was in Nottingham. We were inundated
with requests from the community to participate in that. They
were not from people who had a particular punitive response, but
from people who wanted to make a contribution. Part of our working
methodology at Catch22 is around volunteering. We don't have a
problem in attracting volunteers. Of course there will always
be some people who have very negative views.
Q458 Chris Evans:
They are usually the loudest voices and they are usually on the
front of the paper.
Chris Wright: But
you can find mechanisms for engaging people. There is an issue
around democratic accountability as well. What the referral order
did was to identify the failings of the statutory services to
be delivering the kind of interventions which might have prevented
young people from ending up in the position they were in in the
first place. We have to approach it from a very positive point
of view. There are people out there who want to make a contribution.
There will always be people who say, "I don't want a bail
hostel in my back garden." But the reality is that there
are a lot of people—and historically this has been the case—who
also want to manage and contribute to their community and make
it a safe place to live.
Rob Smith: I don't
think probation is very good at marketing and communications in
terms of the effectiveness of what it does. There are some really
good projects, particularly about community payback. The Probation
Service feels very opaque to members of the public. They don't
really understand what it is and how it operates. Myths and urban
stories are in place and you really have to work hard to overcome
them. When you get the opportunity to sit down with people to
explain, usually you get a very good reaction.
Clive Martin: I
have to say that in the 12 years I have been doing this job, in
countless number of churches, local community groups and chambers
of commerce—when it is done in a structured way and you
invariably have an offender with you and you talk to people—I
have never experienced that it ends up in a negative place. It
happens when you are fire-fighting: when someone wants to build
a sex offender hostel, it has been sprung on a community and they
haven't heard about it. It happens then but, otherwise, in terms
of a structured discussion, my gut sense is that there is still
a huge amount of public opinion that is about wanting to do something
positive in a managed and structured way. We do our communities
a disservice by just being panicked by that one presentation of
it. I am still amazed that when you go out and engage with people
that is generally the response.
Chair: We will have to
stop there because we have run out of time and we have a private
session after this one. I thank you all very much for bringing
your experience to the witness table. It has been very helpful
to us. Thank you.
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