The role of the Probation Service - Justice Committee Contents

6  Future commissioning arrangements

The Government's proposals

190.  The Government's green paper Breaking the Cycle continues on the trajectory begun by the Offender Management Act 2007 by introducing greater contestability into probation. It envisages a system in which probation trusts would compete with other providers from the voluntary and the private sectors. The Government has summarised the approach that it intends to take towards future commissioning arrangements as follows:

We will signal a clean break with the controlling, centralising tendencies of the past by making a clear commitment to decentralisation. We will provide frontline professionals with greater freedoms in how they manage offenders. Local areas will focus on the criminals who cause the most problems in their communities. There will be fewer targets for providers and less prescription in the way that different agencies work together. Our decentralising approach will mean a move away from centrally controlled services dominated by the public sector, towards a more competitive system that draws on the knowledge, expertise and innovation of a much broader set of organisations from all sectors.[269]

191.  More specifically, the Government proposes to offer financial incentives to existing and new providers: to produce innovative solutions to re-offending; to stimulate the development of effective practice; and to establish reliable and sustainable funding arrangements. Central to this is the idea of payment by results. Ms Byrne of A4E described payment by results as a contracting mechanism designed to "increase the direct link between the cost of an intervention and the positive social outcome."[270] The green paper considers applying payment by results to people on community sentences and to local partnership incentive schemes. For example, in the first case a "lead provider" would be contracted to deliver an overall community sentence. This provider, or consortium of providers, may choose to sub-contract some services to other partners. There would be two kinds of payments: one for delivering the statutory requirements and ensuring compliance with the sentence; a further payment would depend on the results the provider delivers in reducing reconviction. The second scheme requires local statutory partners to develop a joint plan to prevent offending and reduce reoffending, jointly commissioning innovative services to fill any gaps with the desired outcome to reduce demand on the system. If demand for criminal justice services is reduced they would share in any savings made and jointly reinvest them. For short-term prisoners, the paper raises the possibility of paying some prisons for their success in rehabilitating prisoners. The Peterborough social impact bond pilot has been developed by Social Finance, a not-for-profit organisation. This approach seeks to build a social investment market.[271]

192.  Although the commissioning model that will be adopted for community sentences is not yet clear, the Government has said that:

  • any model must "strike a balance between: ensuring that statutory requirements are delivered efficiently and effectively; managing and enforcing delivery of the overall sentence; and reducing reoffending";
  • it does not believe that it is "either practical or desirable" to contract for these different objectives separately from one another and with different providers and therefore proposes to contract with one provider to deliver the overall community sentence;
  • local commissioning gets the "best responsiveness to local needs, to drive out cost and to enable smaller community-based organisations to participate fully";[272] and
  • it intends to "devolve accountability and decision-making to the lowest appropriate level and encourage criminal justice agencies to draw authority from their locality rather than central government"; it has recognised that this requires reducing the burdens of excessive performance targets and inspection regimes on local partners, discussed in the previous chapter, and anticipates replacing six existing reducing re-offending related measures with "a single, comprehensive and easily understandable outcome".[273]

193.  The Government intends to apply the principles of its new approach—freedom to innovate; increased discretion; and paying by results at reducing re-offending—to all providers by 2015 and will produce its fuller proposals for competition in prisons and probation by this summer. The green paper also anticipates co-commissioning with the Department of Health, the Home Office and the Department for Work and Pensions, paying a range of providers for delivering outcomes including the offender stopping taking drugs and gaining and sustaining employment as well as reduced reconviction.

194.  Through its competition strategy the Government wishes to promote the effective use of existing resources and to attract additional resources into the infrastructure to reduce re-offending. The Comprehensive Spending Review stated that the Big Society Bank, created from private sector funding and resources in dormant bank accounts, would "support the growth of the social investment market and make it easier for social enterprises and other enterprising civil society organisations, including those looking to participate in the Work Programme, to access capital. The Big Society Bank will, however, be an independent wholesale organisation that will be free to make its own investment decisions based on the quality of opportunities presented by the market."[274] Consequently, the Big Society Bank's involvement in rehabilitative projects is not yet a certainty and is likely to depend upon the Bank's perception of the sustainability of this type of investment.

Potential models of commissioning

195.  We had wide-ranging discussions with our witnesses about the relative merits of the potential models for implementing payment by results that the Government has proposed; not surprisingly, their perspectives frequently reflected their own interests in the nature of any future commissioning model. There was widespread agreement—but not a consensus—that the majority of probation services should be commissioned at local level to enable local solutions to be devised to address local problems and priorities. This seems consistent with the Government's stated principle, quoted above, that accountability and decision-making should be devolved to the lowest appropriate level with justice agencies drawing authority from their locality rather than from central government. There was also agreement with the MoJ's single provider model for the commissioning of community sentences, although there was no consensus on what such a model would look like in practice.


196.  Although the Government has stated that the services which probation trusts currently provide will be increasingly subject to competition, it is neither clear how far the MoJ is envisaging extending new commissioning arrangements nor the level at which they anticipate these various services will be commissioned. Equally unclear is the role that probation trusts would play in any nationwide application of payment by results, other than that trusts themselves will become paid on the basis of outcomes achieved and would represent a key partner in local incentive schemes if the pilots prove successful. While the Government has asserted that trusts "have an important and continuing role to provide local strategic leadership for managing offenders", it is not evident whether this means that they envisage trusts retaining oversight of offender management for those sentenced to community sentences. [275]

197.  When we asked the Minister, Mr Crispin Blunt MP, for his views on what the role of probation trusts would constitute in the future he was clear that he believed they would become commissioners and providers. He outlined the payment by results pilots planned for prisons, probation and local communities and stated:

The challenge that we face is that you cannot see all of this in isolation. Probation is part of a wider regime, which delivers, if it is successful, better people once they have been in the custody of the state. The challenge that we face is to link all this up so that we drive earlier intervention in order to prevent people coming into the justice process in the first place, ideally […] In this environment, I don't see the simplicity of being able to say that probation trusts, who are currently providers…are going to simply remain as providers. If we are to get the charitable and voluntary sector, in particular, properly engaged in the rehabilitation of offenders and in delivering a revolution in rehabilitation, that cannot be done without engaging all those people in our society who frankly want to help the state with the task of rehabilitating offenders and putting people back on the straight and narrow...I don't think it could be done if we try to leave the commissioning role at the level of [NOMS]. I think we are going to have a period where probation trusts will need to be in a position of occasionally being both provider and commissioner.[276]

He was much less clear, however, about the longer-term future of trusts:

Exactly how [probation services are] going to be delivered in five years' time we will see from the development of a localist agenda, how much probation trusts remain a creature of NOMS or what their development is with all the other local services that are delivered in their local area […] In the end, the people who have the nation's offender management expertise are the Probation Service. Is that expertise going to need to continue? The challenge identified in the formation of NOMS is how to get the offender managers in charge of an offender in his whole progression through the justice system more effectively so that they can deliver proper co-ordination of that sentence, and the sentence planning and rehabilitation programmes that are required to secure a successful outcome for that offender and society so that there are not future victims of crime because he has ceased offending. That dynamic and that requirement are not going to change.[277]

198.  The absence from the green paper, and from the Government's response, of a clear statement about the role of probation in any new commissioning model has fuelled concerns, expressed by our witnesses, about the future direction of probation trusts.

A probation led model of commissioning for community sentences?

199.  The Probation Association and Probation Chiefs' Association, trades unions and numerous probation trusts, expressed considerable support for creating commissioning arrangements which would allow probation trusts to continue both focusing on offender management and building on work with existing local partners to improve services and results. [278] The Local Government Association also expressed this view in its response to the Breaking the Cycle consultation.[279] Prior to the publication of the consultation paper, the Magistrates' Association proposed to us that the MoJ should commission services directly from probation trusts, who would then commission locally. In their view this would "ensure that all types of contract are possible with all sorts of providers, rather than moving towards specific national organisations taking most of the contracts. There is merit in small providers supplying services, particularly on a local basis."[280] Under such a model, trusts would undertake the role as "lead provider" for all offender management services, and could then decide whether to provide these services themselves, through sub-contractors or by co-commissioning with statutory partners. New commissioning arrangements would be used to strengthen the contributions of other sectors and should support probation trusts in discharging their legal and statutory responsibilities. For example, London Probation Trust suggested that such a model would enable trusts to "focus more of their energies and resources on the supervision of offenders and effective management of their risk", whilst retaining oversight of the quality of interventions delivered by other providers.[281] Cambridgeshire and Peterborough Probation Trust agreed that such a model "would create a very powerful delivery base".[282] Similar views were expressed by some voluntary sector organisations, including Together.[283]

200.  West Mercia Probation Trust was cited as an example of what this might look like:

[West Mercia Probation Trust] 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 [of offender management and offender interventions]. 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.[284]

The Chief Executive of Youth Support Services (YSS), a voluntary sector organisation appointed as West Mercia Probation Trust's preferred partner, explained that it is developing a "menu of provision" for the trust's offender managers that works across all the needs of an individual and tailoring it around them.[285] YSS works with probation to commission services from other local third sector providers and develop the capability and capacity of local voluntary organisations to create innovative solutions to working with offenders.

201.  The Minister, Crispin Blunt MP, recently visited West Mercia Probation Trust and commented:

West Mercia seems to be ahead of the game in terms of the overall direction of approach about delegating authority from the centre to those who are charged with operational delivery. They are also ahead of the game in terms of engaging with all our local service providers who can deliver improved rehabilitation of offenders. This includes the other local government services and trust services such as health but also across the voluntary sector, as demonstrated by their groundbreaking partnership with YSS. It may be that the rest of the country will be looking to West Mercia as an example of effective engagement of partners around rehabilitation.[286]

Large scale models

202.  Some private and voluntary sector witnesses proposed larger scale "lead provider" models. For example, A4E supported the appointment of a "lead integrator" to manage and deliver each contract and CBI advocated a "prime contractor" model similar to that used by the Department for Work and Pensions, whereby a single contractor has responsibility for sub-contracting services from a range of specialist providers in the public, private and voluntary sectors.[287] Such models could potentially be used to widen the market for the commissioning of specific services, for example, community payback, or for whole trusts to be subjected to competition, as advocated by Catch22, Nacro and G4S, for example.[288] The Department for Work and Pensions has developed a tiered model with a prime provider—covering large geographical areas—which subcontract, or enter into service level agreements, with smaller providers who specialise in either a particular area locally or are focused on a particular type of client or customer characteristic.[289] For example, A4E has sub-contracted with 700 providers; 49% are from small, local and third sector organisations and 18% are statutory partners, primarily PCTs and local authorities.[290]


203.  Many of our witnesses were firmly of the view that any commissioning model must recognise that the reduction of reoffending is a partnership responsibility, as a large amount of activity that is required to address offending behaviour is outwith the budgets of probation and NOMS.[291] Ms Webb, Chief Executive of Hertfordshire Probation Trust, explained:

[the] probation service is not the provider of a lot of the interventions that are needed to reduce re-offending, so on the ownership of results there needs to be a multi-agency partnership...if it is put as an outcome for probation on its own to deliver we are at the mercy of a lot of other public sector providers delivering it or not.[292]

Chris Wright of Catch22 agreed:

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.[293]

204.  The Ministry of Justice sees local incentive pilots as the answer to boosting local service provision.[294] Witnesses welcomed the idea as a potential means of overcoming problems with the local accountability of probation trusts under existing governance arrangements by enabling closer alliance with other public sector services and hence a more strategic approach to the local targeting of resources. This was advocated by our predecessor Committee in Cutting crime: the case for justice reinvestment. An ex-probation officer commented: "active arrangements that foster better levels of trust between organisations are more important than competitive contractual working".[295] In its response to Breaking the Cycle, the Local Government Association stated: "while competition amongst providers drives down costs and improves services, competition amongst commissioners results in inefficiencies and duplication and makes it more difficult to improve the quality and efficiency of services".[296] These incentive schemes would therefore enable local partners to capitalise on the success of existing partnership initiatives which have illustrated the economies of scale that can be achieved when local statutory agencies co-locate and integrate services, share assessments, and forge strategic links with service providers from other sectors.

The potential benefits and limitations of new commissioning models for probation and rehabilitative services

Creating a mixed economy in probation provision

205.  Catch22 stated that there is some evidence that quasi-markets have had a positive impact across public service areas in other fields, for example, in education and drug and alcohol treatment. There is some debate on the extent to which performance testing and competition for new prison contracts has had an impact on driving up standards across the custodial sector.[297] The CBI stated that cost savings of over 20% have been achieved through competitive tendering in the prison service. Our witnesses considered that there were a range of benefits which could be gained by facilitating the delivery of a greater range of rehabilitative services by a wider range of providers.[298] Numerous probation trusts and the Probation Association commented on the value of the contribution that private and voluntary providers could, and already do, make to offender management.[299]

206.  Catch22 argued that benefits from diversity of providers and contestability arise "not simply from large-scale transfers from one sector to another but from opening up the possibility for the best provider, from across the different sectors [emphasis in original], to deliver a service."[300] Chris Wright further explained:

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 […] The important thing is to commission the right kind of services that are going to achieve the right kind of outcomes […] 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.[301]

Mr Neden of G4S agreed:

…it isn't the private sector per se that has something to offer. It is that a market that leads to a mixed economy has something to offer and that, over time, having a having a diversity of providers will lead to innovation that can either be a better service or more efficiency or lower cost or some mix of those things. It is the ongoing effectiveness of the market in competition that drives that. The players that win in that market will just be the players that the commissioners choose.[302]

Witnesses from the voluntary and private sectors, including Catch22 and the CBI, highlighted that across each sector there was the capacity to both manage high level contracts, in a co-ordinating role, and to deliver niche services and build relationships at local level.[303] Clinks and the Centre for Mental Health stated that VCS organisations could also provide a developmental function for commissioners.[304] Some trusts, for example, Leicestershire and Rutland, also have experience of co-ordinating large consortia.[305] The evidence we have received suggests that there is significant scope to increase the contribution of private and voluntary sector organisations to the delivery of effective offender management and rehabilitation.


207.  Payment by results models have been applied to the Department for Work and Pensions' funding arrangements for consecutive programmes designed to move people from benefits and into employment. In Department of Health models payments are not paid by results as such but by activity, for example, number of treatments administered.[306] Such mechanisms have the potential to bring new money into the system, for example, through social investment, and to improve performance by providing a greater focus on specified outcomes, potentially yielding cost savings by weeding out inefficiency. There is some evidence of improved performance under DWP contracts. [307] The services provided in the field of probation are currently cash-constrained, and some or all of the savings gained by reduced reoffending could be reinvested in service provision. The Probation Association summarised the potential strengths of payment by results as: clarity about requirements; the use of measurable and specific outcomes; payment made only when outcomes are delivered, thus making attainment of results the imperative; and the potential to attract investment from the private sector.[308]

208.  Experience of the existing local commissioning arrangements for women offenders suggests that there is scope for new commissioning models to ensure that even more specialist services are provided to particular groups of offenders, including BME and women, than some smaller and less urban probation trusts are currently able to provide, for example, by increasing provision to meet local needs by specialist voluntary and community sector organisations.[309] Catch22 also suggested that there is potential for new arrangements to ensure a smoother transition from youth offending services to adult probation services.[310]

209.  We encountered some objections to the principle of introducing a profit motive into the delivery of community sentences. For example, the Magistrates' Association raised concerns about the impact that introducing a profit motive for reducing re-offending may have on meeting the core aims of the criminal justice system. [311] The Association's Chair, John Thornhill, explained:

We are saying that we, as sentencers, must have confidence that the sentence will be properly and effectively delivered, and successfully delivered over a period of time…we do not believe it should be driven by profit. We believe it should be driven by the appropriateness and effectiveness of the delivery of the sentence. …If we see that success is not as successful as we would like it to be, then confidence is going to wane in the community penalties.[312]

210.  Some witnesses' wider concerns centred on the potential impact on risk management of giving probation work to alternative private sector providers, whose principal motivation may be profit rather than rehabilitation, public protection and accountability to communities. For example, cost reductions might result in a dilution of the quality of service provision through an increase in group sizes, the loss of individual placements, or poorly trained staff.[313] Caseloads are already high, so there is a risk in attempting to cut costs purely by increasing caseloads; probation trusts have had to carefully re-evaluate their whole approach to providing a service to the courts in order to operate to best effect within existing level of resources.[314] The Magistrates' Association has questioned whether organisations from other sectors would have the same dedication and genuine desire to reduce re-offending as probation trusts do currently.[315] Birmingham Crown Court judges considered that public confidence in sentences may not be at the forefront of private sector providers' thinking, citing examples of failures to report breaches.[316]

211.  Payment by results provides a potential mechanism for putting the system on a sustainable footing over the longer term by shifting resources away from incarceration towards rehabilitation and towards measures which prevent people becoming criminals in the first place. However, the payment by results models proposed are untested in the field of criminal justice and represent a significant departure from existing commissioning arrangements. Nevertheless, given the problems faced by the sector, there are compelling reasons to test the potential of a radically different approach.


212.  There was considerable debate amongst our witnesses about which services that are currently provided by probation trusts would be appropriate for contracting out to other sectors. Trusts highlighted the benefits of themselves taking responsibility as lead providers, citing their extensive knowledge of: local communities; the requirements of local sentencers; local offending and the needs of local offenders; and the range of local organisations which can provide appropriate services, as well as capitalising on their expertise in offender management and further developing their role as local commissioners.[317] If trusts were not to become "lead providers", many trusts, the Probation Chiefs' Association, Napo and other witnesses believed that responsibility for offender management should be retained, citing a need for high standard, accountable, professional judgment on the assessment and management of risk.[318] For example, Wiltshire Probation Trust argued that this was necessary for there to be clear accountability through Ministers and to Parliament.[319] Particular emphasis was placed on the importance of management of high risk offenders, including in approved premises, and public protection cases, remaining within trusts.[320] Napo also believed that victim liaison should remain a statutory responsibility.[321]

213.  The Magistrates' Association similarly believed that it was important that a single agency was responsible for the management of offenders and stated that "the current arrangement is difficult enough to control without adding in different pressures that may come from different organisations and different types of organisation."[322] John Thornhill further explained that their preference would be for the single agency to be the probation trust:

A concern that sentencers would have is that if we have a single contact in the courtroom—and that is something we would prefer, i.e. the probation service as a single point of contact, providing the reports, and taking the delivery of the sentence to whoever the providers are—there is then not a disconnect between the commissioner and the deliverer. There have to be very strong links because, if we have high risk offenders, if we have dangerous offenders, and the courts are imposing a community penalty, then the courts need to be confident that the probation service as the point of contact in court has appropriate quality assurances and procedures in place to ensure that the sentence is properly delivered, that there is no risk and there is risk management.[323]

Clinks, and some other voluntary sector organisations, also favoured the probation service retaining offender management and ultimate responsibility for the enforcement of court orders and post-release licences, believing that the state should be responsible for the assessment of offenders and providing information and advice to courts to assist in sentencing.[324] G4S believed that the private and third sectors could bring "management expertise, fresh thinking and new techniques" to the core task of offender management.[325] One probation trust did not believe that either sector is equipped to run the full system of offender management.[326]

214.  We believe that responsibility to the courts and the community for offender management must remain with a publicly accountable probation service. However, there is plenty of scope for specific services and facilities that support offender management to be offered by a range of providers. Examples include the provision of (non-approved premises) accommodation, electronic monitoring, curfews, mental health support, drug and alcohol treatment, learning and training, and family support. These services should be delivered by whichever provider can facilitate them most effectively with the greatest economy.


215.  Several private sector providers highlighted the potential benefits of larger scale contracts. G4S stated that it is: "questionable whether commissioning services through … separate probation trusts can deliver the most efficient delivery model for those services which could realise economies of scale if commissioned on a national or regional basis".[327] A4E similarly believed that to develop the market the MoJ must broaden the base of large providers with scale to take on the management of contracts and the financial capacity and appetite for risk needed to deliver contracts linking payment by results.[328] The CBI similarly considered that commissioning at regional or pan-regional level has the potential to deliver the returns to attract large commercial providers with fresh ideas from operations in other public services markets; this would also have the benefit of cutting out duplication in the existing procurement of services at probation trust level.[329] Under these models opportunities must also be on a sufficient scale to deliver a return on investment; contract size can also be determined by length, for example, G4S has advocated contracts spanning several years.[330] As we noted above, savings can also be made through local partnerships, for example, by developing co-located services.[331]

216.  On the other hand, several witnesses expressed concerns that the scale of contracts required to make large payment by results models financially viable, and the results statistically significant, may be at odds with local commissioning, and may preclude relatively small organisations, including probation trusts, from becoming lead contractors. Napo believed that only large VCS and private providers were likely to be able to operate under the conditions of large "lead provider" contracts.[332] Indeed, as a result of lack of access to working capital VCS and statutory providers have tended to be involved in payment by results as subcontractors in other fields. Matthew Lay of UNISON raised concerns that "the providers are setting the framework by which [payment by results] will operate because of the commercial risk. Therefore, in a sense the balance is skewed."[333]

217.  There was disagreement amongst our witnesses about implications of larger scale models for the level at which commissioning decisions would be made. For example, Tessa Webb, Chief Executive of Hertfordshire Probation Trust, told us that: "There is a real tension between the localism agenda and the efficiencies…Obviously, as you scale up there are opportunities. At that size, it is far more attractive to the larger, private sector companies to come in on a large-scale basis. I am not sure that they would be particularly interested in delivering on a micro-level, which is perhaps how we operate at present."[334] Other witnesses believed that it was possible for such models to facilitate an integrated approach by a range of organisations so that support can be tailored to the individual needs of offenders. For example, Mr Hill of Sodexo and Mr Neden of G4S did not recognise the issue raised by Ms Webb as a tension. Mr Hill used the example of the community payback tenders to explain: "How you construct the community payback lots to ensure that you get efficiency into the scale of what you are offering doesn't for a moment mean that you don't expect us as providers to build in local decision making into community payback as a delivery. I don't believe those two things are a poor fit with one another. Quite the contrary: I should think they will fit together quite well."[335]

218.  The community payback competition exercise is a good example of the tensions between scale, efficiencies and localism. Mr Copsey identified what the MoJ intends to get from providers and believed it could be both:

Clearly we want to see efficiencies and value for money delivered in those contracts, but we will certainly want to see innovation and performance improvement, and we will certainly want to see the ability of those successful bids to demonstrate proper and rigorous local delivery arrangements, which...will be critical in terms of enhancing voluntary third sector local groups and local communities in working with those offenders and the community payback scheme to deliver the types of projects and outcomes that local communities want to see.[336]

219.  However, even if local providers are involved, there is limited scope for commissioning to be integrated with local strategic arrangements. Clive Martin, Director of Clinks, highlighted difficulties of commissioning effectively to address particular types of crime or particular communities of offenders, e.g. BME offenders, within a large commissioning area: "the closer you can get to the commissioning matching the needs of the local population, the better."[337] The community payback competition is also a good example of the potential to undermine the viability of trusts by top-slicing aspects of their work: community payback represents 23% of the services that probation delivers in terms of cash value.[338]

220.  Although on the face of it large scale payment by results commissioning arrangements such as those used by the Department for Work and Pensions may be attractive in achieving cost savings, economies can also be achieved at a more local level, for example by probation trusts concentrating their efforts on where there is best value in contracting out other services and through local partnerships pooling their resources and investing them strategically. There is a need for careful thinking and calculation on behalf of the Government on how to strike the best balance between opening up the market to new providers and enabling trusts to operate effectively as local strategic partners, facilitating local solutions to local problems.


221.  The Probation Association, Probation Chiefs' Association and some trusts raised concerns of a risk of fragmentation and potential dilution of the quality of services—and the offender management process—if trusts do not retain responsibility for all sub-contracting and commissioning; trusts may become weaker strategically (with local partners) and financially if they lose business.[339] Christine Lawrie of the Probation Association stated:

One of the risks with [some] PBR [models] is that it becomes a [system] in which particular contracts are managed, commissioned and then contract-managed by NOMS in a silo alongside whatever the trust is doing…it is important to retain the integrity of systems so that you build in incentives for the whole system; you don't try to slice off bits and then pay people for achieving a narrow range of results.[340]

222.  Bedfordshire Probation Trust summarised the tensions inherent in defining those services which, in practice, could cost-effectively be delivered by other providers:

Apart from writing of court and parole reports which could lead to conflict of interest, any aspect of the service could be delivered by the private, third sector or by a combination of private, third sector and public. This approach would drive efficiency and innovation but would lead to a much more fragmented service delivery model.[341]

There is also a risk that the complex work to which probation trusts are central will be undermined, for example, as we noted above, as well as advocating for provision for offenders within local strategic partnerships, probation trusts are important components in partnerships, including MAPPA and domestic violence, which are critical to fulfilling public protection responsibilities.[342]

223.  The effectiveness of offender management is also reliant on the delivery of interventions from a range of sources being well co-ordinated.[343] In Andrew Bridges' response to Breaking the Cycle, he raised concerns that in having different providers responsible for different elements of a community order, the overall co-ordination of the sentence may be considerably more onerous.[344] For example, there is an increased risk of communication not passing through and a potential for increased costs.[345] Reviews of the few cases that go wrong usually identify problems with fragmented delivery and poor communication.[346] Northumbria Probation Trust highlighted that while trusts will generally have no objection to supporting a role for the private and voluntary sectors in the provision of some offender services, other key partners will also need to subscribe to this direction of travel; for example, the police may not be willing to share highly sensitive information in relation to public protection.[347] As our predecessor Committee noted in its report Cutting crime,[348] it has taken considerable time since the Crime and Disorder Act 1998 mandated the sharing of information for the purposes of crime reduction for statutory agencies to trust each other.

224.  Other witnesses had particular concerns about the impact of lateral slicing of services on the coherence of service provision at local level. For example, Clive Martin summarised his views:

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.[349]

225.  Some witnesses identified potential risks in contracting out some services which may have implications for the willingness of commercial organisations to undertake such ventures; for the political liabilities involved in devolving responsibility to non-statutory providers; and for the effectiveness of the Government's strategy for stabilising criminal justice expenditure. Together, a national mental health charity, considered that giving legal and statutory responsibilities for the provision of offender management services to the private or voluntary sector providers risked the development of uncoordinated services that are expensive and unaccountable.[350]

226.  G4S acknowledged in written evidence that the core task of probation with regards offender management was unclear.[351] Mr Neden, Corporate Development Director of G4S, further explained:

The market would develop by commissioning a range of different services, which could be community payback. It could be other interventions such as drug treatment programmes. It could be offender management services, although I recognise that, particularly with the prolific and more dangerous offenders, that would be difficult perhaps for us reputationally and possibly difficult in terms of appropriateness.[352]

227.  Probation services have been uncertain about their future since the idea of wider competition was first mooted almost ten years ago. The Government must clarify its intentions for the future of probation. We would welcome a clear statement from NOMS about which elements of probation work are considered appropriate for commissioning from other providers (and which are not) as well as those they consider should be contracted for at scale, and the principles that should determine the boundaries.

228.  We welcome the Government's local incentive scheme pilots in enabling commissioning for rehabilitative interventions to be more effectively delivered through partnerships at local level. We consider that the local incentives model would work best if it is introduced alongside a model in which probation is "lead provider".

229.  The Government's commitment to devolving commissioning to the local level is not fully reflected in the green paper or in NOMS' recent approach to commissioning community payback. The decision that it was most appropriate to commission community payback at the level of six large lots across England and Wales is, we believe, flawed in terms of the future direction of commissioning policy; it does not fit the Government's rationale that services should be commissioned at local level.

Towards a fully integrated commissioning model

230.  None of the proposed commissioning arrangements described above appear to strike the optimum balance between integrating the commissioning of local strategic partners to improve reductions in re-offending, facilitating a "rehabilitation revolution" across prisons and probation, and increasing the sustainability of the funding of the criminal justice system. Clive Martin explained:

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 inside custody, outside custody or returning to a community, then you need a commissioning structure that reflects all of that [...] Something that makes sure that you bring in those community organisations or even things like local authorities is key.[353]

G4S believed that "due regard must be given to commissioning services that span both custody and community sentences in a 'joined up' or vertically integrated way".[354] John Thornhill saw merits in terms of cost reduction:

If you have a single integrated service, then you can achieve continuity of delivery right across the whole spectrum of disposals. However, that depends on ensuring that there is a fair and just balance of funding, again, right across, and identifying where the funding is most necessary.[355]


231.  The effective extension of offender management to all offenders through integrated local approaches requires better relationships with prisons. Any new approach must undoubtedly rectify the fact that, in the eyes of many of our witnesses, NOMS' commissioning arrangements have been "inappropriately prison oriented" and served to marginalise probation.[356] NOMS is currently undergoing a process of reform and streamlining and the green paper anticipates that this will continue as responsibility for commissioning is increasingly devolved to local commissioners. Nevertheless, the abolition of NOMS' regional tier—whilst overwhelmingly welcomed by our witnesses—leaves a void that ignores the potential benefits of commissioning in a way that enables a more strategic approach to be taken to the end-to-end management of offenders across their sentence. While the MoJ also aims increasingly to connect the prison system to local communities, it believes that: "[t]here will always be a need for some central management of prisons and a need to ensure capacity across the whole prison estate is used effectively".[357] According to Clinks, this centralised approach has restricted the capacity for more integrated commissioning arrangements: "the prison service has, necessarily, retained the authority to move prisoners around the system in order to deal with the effects of overcrowding".[358]

232.  There is potential for greater cost savings within NOMS by reducing the continued duplication in central governance arrangements for prisons and probation, yet Assistant Chief Constable Long and Mr Chantler cautioned that there is a need to retain some coherence nationally as well as promoting stronger local governance[359] Mr Chantler explained: "What ought to be required by the centre…is that you are meeting the needs of local communities and the need of engaging properly with the police and with prisons."[360]

233.  When we asked Mr Hill for a best-case scenario in terms of integrating prisons and probation he said:

integration does boil down to how you commission services and not to the organisational state of the different providers. The logic of your question really is that you then commission around either a locality or a group of offenders […] it is probably the case that the vertical slicing, which links quite strongly back to Patrick Carter's original model of offender management and following the individual through the system, makes, in my view anyway, for a more effective approach.[361]

234.  Lord Carter's 2003 report proposed the separation of the case management of offenders from the provision of prison places, treatment services or community programmes.[362] Jonathan Ledger identified the potential for "structural tensions" to arise in a single commissioning model for a probation trust and several prisons.[363] For example, prison is currently a national resource and probation a predominantly local one and, as we were reminded by Cllr Khan, the prisoner population are often not located in a prison near to the area where they will live on release.[364] Surrey and Sussex, Merseyside and West Mercia probation trusts highlighted that when there is a defined local prison, relationships with local agencies are very good.[365] For example, the Prison Service takes responsibility alongside other agencies in local partnerships including MAPPA and community safety partnerships. [366]


235.  Witnesses advocated more local authority involvement in criminal justice.[367] Echoing the views of our predecessor Committee, Andrew Neilson of the Howard League focused on the importance of 'place' in any new commissioning arrangements:

The problem also with the criminal justice system is its focus on the individual with the term "offender management" […] 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 that 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 [of local commissioning flowing from the court or as close to the sentence as possible], we are very far away from having the infrastructure and ability to do that.[368]

236.  Some witnesses questioned whether the local incentives model proposed by the Government was the most appropriate means to build on existing local partnership arrangements. Drawing on the success of the 'Total Place' pilots, which showed the costs and processes associated with silo delivery of re-offending services and the savings that could result from a partnership approach, the Probation Association and Local Government Association urged a place-based budgeting model of locally driven commissioning that enables local budgets—including those of probation trusts—to be pooled to deliver outcomes for reducing re-offending more efficiently and effectively.[369] This is not incompatible with payment by results, but the Probation Association proposed that place-based funding should be the foundation principle, with payment by results introduced to address very specific issues and commissioned by local agencies as part of their wider approach. The Government has shown interest in the potential for place-based budgets to be developed on a 'thematic' basis, covering specific complex policy areas, but not currently for reducing re-offending. [370]

237.  We also heard that, while there are benefits in co-terminosity—as illustrated by the closer relationships that have been facilitated between probation and the police—it may not be possible to create uniform local commissioning arrangements across England and Wales that encompass local authorities, due to differences in governance arrangements, for example between urban and rural areas; it is therefore likely that any new structures would have to be locally determined.[371]For example, John Long of Avon and Somerset Constabulary considered that joint venture companies, such as that which had been established between the private sector, the police and local authorities in his area, could provide a flexible model of delivering payment by results at local level.[372] G4S and Naco similarly considered that there was scope for "joint ventures" between trusts and private or voluntary sector organisations.[373] Cllr Khan believed that there was the potential for bringing the resources for commissioning prison places into a localised model.[374]


238.  An effective commissioning model must also recognise the importance of sentencers. They make the decisions about the community and custodial sentences that the providers of probation services will manage.[375] For example, London Probation Trust explained that "the separation in commissioning arrangements between probation trusts and courts/sentencers means that there is an inherent tension between what is demanded of probation services and what can be delivered."[376] Avon and Somerset Criminal Justice Board and Thames Valley Probation Trust agreed that services should be commissioned on the basis of a shared local strategic needs assessment which included contributions from judges and magistrates.[377] Durham Tees Valley Probation Trust advocated a model in which resources were managed in such a way to allow them to be allocated at the point of sentence.[378]

239.  Several of our witnesses highlighted difficulties with this.[379] John Thornhill did not believe that sentencers should be involved with the direction of resources: "It is the responsibility of those delivering the sentence to ensure that there is proper provision of the sentences that the courts require. That management should be driven by sentencing, not by capacity […] because we are judiciary, it is right for us not to be involved in the commissioning process."[380] Nevertheless, our predecessor Committee concluded in its inquiry on justice reinvestment that it would be helpful if sentencers were made aware of the relative cost-benefits of different interventions as one element that should inform their sentencing decisions. Several of our witnesses were supportive of this, although there was some debate about whether sentencers would engage in such considerations.[381] There is no mention of the importance of engaging sentencers in new commissioning arrangements in the Government's green paper.


240.  While Mr Blunt acknowledged that the ideal would be to have an integrated local commissioning model for offender management, including prisons and probation, he perceived that the current overcrowding in the prison system would preclude such a possibility from driving the savings that are required, for example, because it would neither be possible to configure prisons on a more local basis nor to close institutions if the prison population is reduced.[382]

He explained:

The logic of a vertically integrated service, and, say, a police and crime commissioner who is responsible for the management of criminal justice policy in their area, would be to allow local sentencers and a police and crime commissioner the freedom to pursue the criminal justice policy in their local area as they see fit. If they want to bang people up and their sentencers want to send people to prison for exemplary periods for burglary or whatever else it is in the county of Surrey, for example, and to have an extremely robust sentencing policy, well, that is fine as long as the people of Surrey are prepared to pay for it through their council tax because of all the prisons they are going to have to build to hold them. Equally, they could pursue a different policy which is focused on sharing the savings with the Ministry. The issue in those circumstances is that we would go to a completely different environment where the state was not procuring custody. I do not think we are quite ready to make that jump yet.[383]

241.  Although it was not apparent to us that the MoJ had given much thought to the potential of vertical commissioning, the Minister highlighted Cumbria as an example of an area where such an approach may be possible, given the alignment of prison catchment areas with the areas of other local statutory agencies. He further suggested that the configuration of prisons into clusters under the new offender learning commissioning arrangements—whereby prisoners can serve their sentence at a group of prisons in a particular area as their category changes—may make it easier for local links to be established between prisons and local probation trusts and the management of their offenders.[384]

242.  Devising a fully integrated model would be challenging to achieve in practice, but that is no excuse for failing to consider an approach which has great potential. Several witnesses, including Clinks, the Probation Association and some trusts, considered that local reducing reoffending boards, which have been created in some areas, and the proposed introduction of Police and Crime Commissioners, open new avenues for the local governance and commissioning of probation services.[385] These could also eventually provide a platform for assimilating prison commissioning into local commissioning frameworks. For example, South Yorkshire Probation Trust proposes the establishment of a "Joint Commissioning and Reducing Re-offending Board", chaired by a Police and Crime Commissioner and with representation from health and local authorities as well as sentencers, victims and the community. The Board would be accountable to the Community Safety Partnership and have responsibility for commissioning all interventions from a diverse market of providers; all agencies with statutory responsibility for reducing re-offending would have a proportion of their budget "top-sliced" to create a pooled budget that would also bring together existing funding streams which address offending.[386] The Greater London Authority has created the London Crime Reduction Board that brings together a range of statutory partners involved in crime reduction and prevention at a strategic level, and enables improved cost-effective and innovative commissioning for all criminal justice services.[387]

243.  There are also positive examples of what can be achieved if rehabilitative work "through the prison gate" could be commissioned across a whole prison region.[388] The recommendation of our previous Committee to find a mechanism for the devolution of custody budgets similarly merits further attention.[389]

244.  The separation of the commissioning of prison places from the commissioning of every other form of sentence provision has a distorting effect on the options available to sentencers. Ministers should, as part of their programme of reform of the criminal justice system, develop proposals which would end this separation and link the commissioning of both prison and probation at a level closer to the communities they are designed to protect. We believe that the responsibility for delivering the sentence of the courts should belong to a single offender management local commissioning body which deals with all aspects of custodial and non-custodial sentences. This would increase efficiency within the commissioning process and provide evidence about how effectual the sentences of individual courts are, which then could be fed back into future decisions of the court. Furthermore we believe there is scope for payment by results to be better integrated with other programmes, such as the DWP Work Programme. There is a real danger that proceeding on present lines will lead to the embedding of contracts which become an impediment to this very necessary reform. We recommend that a geographical area is chosen for piloting integrated commissioning of offender management.

269   Ministry of Justice, Breaking the Cycle consultation, p 8 Back

270   Q 241 Back

271   A social impact bond is a contract under which government agrees to pay a fund-holder for a set of outcomes for a specified group, for example, a reduced number of convictions by a group of ex-offenders; the fund-holder raises money from investors to pay for a set of services to achieve these results. Back

272   Ministry of Justice, Breaking the Cycle consultation, p 48 Back

273   Ibid, p 82 Back

274   HM Treasury, Spending Review 2010, November 2010, p 32 Back

275   Ministry of Justice, Breaking the Cycle consultation, p 46 Back

276   Q 718 Back

277   Q 740 Back

278   See e.g. Ev 173; 156; w52; w80; 216; w85; w93; w95; w107; w110; 177  Back

279   Local Government Association, Response to Breaking the Cycle consultation, February 2011 Back

280   Ev 219. See also Magistrates' Association, Response to Breaking the Cycle consultation, March 2011 Back

281   Ev w99 Back

282   Ev w93 Back

283   Ev w70 Back

284   Q 432 Back

285   Q 450 Back

286   The Kidderminster Shuffle, Minister for Prisons and Probation in Kidderminster, 11 March 2011 Back

287   Ev w9; 162 Back

288   Ev 200; 224; w134; 185 Back

289   Q 242 Back

290   Q 243 Back

291   See e.g. Ev w70; w139; Q 434 [Mr Wright] Back

292   Q 355; see also Q 517 [Ms Crozier] Back

293   Q 434 [Mr Wright] Back

294   Q 268 [Mr Porée] Back

295   Ev w11 Back

296   Local Government Association, Response to Breaking the Cycle consultation, February 2011 Back

297   See e.g. HC (2008-09) 361, paras 183-187; NAO report, 2003, The Operational Performance of PFI Prisons, June 2003 Back

298   See e.g. Ev196; w48; w59; w61; w70; 200; Q 432 [Mr Smith]; Ev 224; Q 644  Back

299   See e.g. Ev w52; w80; 216; w85; w93; w95; w103; 173  Back

300   Ev 200; see also Ev w145 Back

301   Q 432 Back

302   Q 605  Back

303   Ev 200; w9 Back

304   PB 28; Clinks, Response to Breaking the Cycle consultation, March 2011 Back

305   Ev w48 Back

306   Q 214 Back

307   See e.g. Ev w9; Q 241; Q 250 Back

308   Ev 177 Back

309   See e.g. Ev 196 ; w6 Back

310   Ev 200 Back

311   Ev 219 Back

312   Q 575 Back

313   See e.g. Ev w110 Back

314   Q 191 Back

315   Magistrates' Association, Response to Breaking the Cycle consultation, March 2011  Back

316   Ev w114 Back

317   See e.g. Ev w44; w48; w52; w80; w93; w103; w122  Back

318   Ev w52; w70; w125; w85; w93; w103; 184; 156; w95; 173 Back

319   Ev w26 Back

320   Ev w48; w52; 216; 184; w85 Back

321   Ev 184 Back

322   Ev 219 Back

323   Q 586 Back

324   Ev 196; w70 Back

325   Ev 224 Back

326   Ev w85 Back

327   Ev 224 Back

328   Ev 162 Back

329   Ev w9 Back

330   Ev 224; w9  Back

331   Q 701 [Mr Chantler]; Q 702 [Mr Long]; Ev w139 Back

332   Ev w9 Back

333   Q 391 Back

334   Q 347 Back

335   Q 613 Back

336   Q 747 Back

337   Q 431 Back

338   Q 748 Back

339   See e.g. Ev w85; w95; w103; w122; Q 354 [Ms Webb] Back

340   Q 356 Back

341   Ev w122 Back

342   Ev w95 Back

343   Ev w70; w139 Back

344   HM Inspectorate of Probation, Response to Breaking the Cycle consultation, February 2011 Back

345   Q 354 [Ms Webb] Back

346   Ev w26; Q 354 Back

347   Ev w85 Back

348   Justice Committee, Cutting crime: the case for justice reinvestment, para 271  Back

349   Q 433 Back

350   Ev w70 Back

351   Ev 224 Back

352   Q 608 Back

353   Q 425 Back

354   Ev 224 Back

355   Q 566; Q 570 Back

356   See for example, Ev 184; w74; w103; 203  Back

357   Ministry of Justice, Breaking the Cycle consultation, p 47 Back

358   Ev 196 Back

359   Q 693 [Mr Chantler]; Q 695 [Assistant Chief Constable Long] Back

360   Q 696 Back

361   Q 599; Q 614 Back

362   Patrick Carter, Managing Offenders, Reducing Crime, 2003 Back

363   Q 415 Back

364   Q 579 Back

365   Qq 508, 691  Back

366   Q 691 [Mr Quick] Back

367   Q 428 [Mr Neilson] Back

368   Q 442 Back

369   Ev w116; 177 Back

370   For example, DCLG is piloting community budgets-which pool departmental budgets for local public service partnerships to work together more effectively-for families with complex needs, with a view to implementing them nationally from 2013-14. Back

371   See e.g. Q 581 [Councillor Khan] Q 539; Q 565 [John Thornhill]; Q 444 [Mr Martin]; Q 695 [Mr Chantler] Back

372   Q 689 Back

373   Ev 224; w134  Back

374   Q 580 Back

375   See e.g. Ev w74; w103; w122; w41; w52 Back

376   Ev w99 Back

377   Ev w41; w52 Back

378   Ev w80 Back

379   See e.g. Q 698 [Mr Chantler] Back

380   Q 572; Q 579 Back

381   See e.g. Qq 672-3 [Professor Hedderman] ; Q 696-7 [Assistant Chief Constable Long] Back

382   Qq 719-723 Back

383   Q 752 Back

384   Q 749; Q753 Back

385   See e.g. Ev 178; 196; w103; w125; w131; w139; Q 702 [Mr Long] Back

386   Ev w125  Back

387   Ev w124 Back

388   For example, the Connect project funded by the European Social Fund. See Q 691. Back

389   Justice Committee, Cutting crime: the case for justice reinvestment, para 352 Back

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Prepared 27 July 2011