6 Future commissioning arrangements |
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.
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
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.
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
- local commissioning gets the "best responsiveness
to local needs, to drive out cost and to enable smaller community-based
organisations to participate fully";
- 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
193. The Government intends to apply the principles
of its new approachfreedom to innovate; increased discretion;
and paying by results at reducing re-offendingto 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
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 agreementbut not a consensusthat
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
COMMUNITY SENTENCES MODEL
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. 
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
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
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
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.
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
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. 
The Local Government Association also expressed this view
in its response to the Breaking the Cycle consultation.
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."
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.
Cambridgeshire and Peterborough Probation Trust agreed that such
a model "would create a very powerful delivery base".
Similar views were expressed by some voluntary sector organisations,
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
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. 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
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.
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.
The Department for Work and Pensions has developed a tiered model
with a prime providercovering large geographical areaswhich
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.
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.
LOCAL PARTNERSHIP MODELS
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.
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.
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.
204. The Ministry of Justice sees local incentive
pilots as the answer to boosting local service provision.
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".
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".
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
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.
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.
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.
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."
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.
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.
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.
Clinks and the Centre for Mental Health stated that VCS organisations
could also provide a developmental function for commissioners.
Some trusts, for example, Leicestershire and Rutland, also have
experience of co-ordinating large consortia.
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.
THE BENEFITS OF PAYING PROVIDERS
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.
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.
 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.
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
Catch22 also suggested that there is potential for new arrangements
to ensure a smoother transition from youth offending services
to adult probation services.
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. 
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.
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.
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.
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.
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.
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
COMMISSIONING FOR OFFENDER MANAGEMENT:
GETTING THE BALANCE RIGHT
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.
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.
For example, Wiltshire Probation Trust argued that this was necessary
for there to be clear accountability through Ministers and to
emphasis was placed on the importance of management of high risk
offenders, including in approved premises, and public protection
cases, remaining within trusts.
Napo also believed that victim liaison should remain a statutory
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."
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 courtroomand 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 arethere 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.
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.
G4S believed that the private and third sectors could bring "management
expertise, fresh thinking and new techniques" to the core
task of offender management.
One probation trust did not believe that either sector is equipped
to run the full system of offender management.
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.
ACHIEVING ECONOMIES OF SCALE
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".
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.
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.
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.
As we noted above, savings can also be made through local partnerships,
for example, by developing co-located services.
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.
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."
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
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."
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."
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.
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."
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.
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.
POTENTIAL RISKS IN GETTING THE BALANCE
221. The Probation Association, Probation Chiefs'
Association and some trusts raised concerns of a risk of fragmentation
and potential dilution of the quality of servicesand the
offender management processif trusts do not retain responsibility
for all sub-contracting and commissioning; trusts may become weaker
strategically (with local partners) and financially if they lose
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.
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.
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.
223. The effectiveness of offender management
is also reliant on the delivery of interventions from a range
of sources being well co-ordinated.
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.
For example, there is an increased risk of communication not passing
through and a potential for increased costs.
Reviews of the few cases that go wrong usually identify problems
with fragmented delivery and poor communication.
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.
As our predecessor Committee noted in its report Cutting crime,
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.
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.
226. G4S acknowledged in written evidence that
the core task of probation with regards offender management was
unclear. 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.
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
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
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".
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.
PRISONS: THE MISSING LINK?
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.
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 tierwhilst
overwhelmingly welcomed by our witnessesleaves 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".
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
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
Chantler explained: "What ought to be required by the centre
that you are meeting the needs of local communities and the need
of engaging properly with the police and with prisons."
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.
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.
Jonathan Ledger identified the potential for "structural
tensions" to arise in a single commissioning model for a
probation trust and several prisons.
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.
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.
For example, the Prison Service takes responsibility alongside
other agencies in local partnerships including MAPPA and community
safety partnerships. 
GEOGRAPHICALLY BASED COMMISSIONING
235. Witnesses advocated more local authority
involvement in criminal justice.
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.
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 budgetsincluding those of probation
truststo be pooled to deliver outcomes for reducing re-offending
more efficiently and effectively.
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. 
237. We also heard that, while there are benefits
in co-terminosityas illustrated by the closer relationships
that have been facilitated between probation and the policeit
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.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.
G4S and Naco similarly considered that there was scope for "joint
ventures" between trusts and private or voluntary sector
Cllr Khan believed that there was the potential for bringing the
resources for commissioning prison places into a localised model.
THE ROLE OF SENTENCERS
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.
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."
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.
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.
239. Several of our witnesses highlighted difficulties
with this. 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
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
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.
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
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 arrangementswhereby
prisoners can serve their sentence at a group of prisons in a
particular area as their category changesmay make it easier
for local links to be established between prisons and local probation
trusts and the management of their offenders.
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.
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.
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
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.
The recommendation of our previous Committee to find a mechanism
for the devolution of custody budgets similarly merits further
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
Q 241 Back
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
Ministry of Justice, Breaking the Cycle consultation, p
Ibid, p 82 Back
HM Treasury, Spending Review 2010, November 2010, p 32 Back
Ministry of Justice, Breaking the Cycle consultation, p
Q 718 Back
Q 740 Back
See e.g. Ev 173; 156; w52; w80; 216; w85; w93; w95; w107; w110;
Local Government Association, Response to Breaking the Cycle
consultation, February 2011 Back
Ev 219. See also Magistrates' Association, Response to Breaking
the Cycle consultation, March 2011 Back
Ev w99 Back
Ev w93 Back
Ev w70 Back
Q 432 Back
Q 450 Back
The Kidderminster Shuffle, Minister for Prisons and Probation
in Kidderminster, 11 March 2011 Back
Ev w9; 162 Back
Ev 200; 224; w134; 185 Back
Q 242 Back
Q 243 Back
See e.g. Ev w70; w139; Q 434 [Mr Wright] Back
Q 355; see also Q 517 [Ms Crozier] Back
Q 434 [Mr Wright] Back
Q 268 [Mr Porée] Back
Ev w11 Back
Local Government Association, Response to Breaking the Cycle
consultation, February 2011 Back
See e.g. HC (2008-09) 361, paras 183-187; NAO report, 2003,
The Operational Performance of PFI Prisons, June 2003 Back
See e.g. Ev196; w48; w59; w61; w70; 200; Q 432 [Mr Smith]; Ev
224; Q 644 Back
See e.g. Ev w52; w80; 216; w85; w93; w95; w103; 173 Back
Ev 200; see also Ev w145 Back
Q 432 Back
Q 605 Back
Ev 200; w9 Back
PB 28; Clinks, Response to Breaking the Cycle consultation,
March 2011 Back
Ev w48 Back
Q 214 Back
See e.g. Ev w9; Q 241; Q 250 Back
Ev 177 Back
See e.g. Ev 196 ; w6 Back
Ev 200 Back
Ev 219 Back
Q 575 Back
See e.g. Ev w110 Back
Q 191 Back
Magistrates' Association, Response to Breaking the Cycle consultation,
March 2011 Back
Ev w114 Back
See e.g. Ev w44; w48; w52; w80; w93; w103; w122 Back
Ev w52; w70; w125; w85; w93; w103; 184; 156; w95; 173 Back
Ev w26 Back
Ev w48; w52; 216; 184; w85 Back
Ev 184 Back
Ev 219 Back
Q 586 Back
Ev 196; w70 Back
Ev 224 Back
Ev w85 Back
Ev 224 Back
Ev 162 Back
Ev w9 Back
Ev 224; w9 Back
Q 701 [Mr Chantler]; Q 702 [Mr Long]; Ev w139 Back
Ev w9 Back
Q 391 Back
Q 347 Back
Q 613 Back
Q 747 Back
Q 431 Back
Q 748 Back
See e.g. Ev w85; w95; w103; w122; Q 354 [Ms Webb] Back
Q 356 Back
Ev w122 Back
Ev w95 Back
Ev w70; w139 Back
HM Inspectorate of Probation, Response to Breaking the Cycle
consultation, February 2011 Back
Q 354 [Ms Webb] Back
Ev w26; Q 354 Back
Ev w85 Back
Justice Committee, Cutting crime: the case for justice reinvestment,
para 271 Back
Q 433 Back
Ev w70 Back
Ev 224 Back
Q 608 Back
Q 425 Back
Ev 224 Back
Q 566; Q 570 Back
See for example, Ev 184; w74; w103; 203 Back
Ministry of Justice, Breaking the Cycle consultation, p
Ev 196 Back
Q 693 [Mr Chantler]; Q 695 [Assistant Chief Constable Long] Back
Q 696 Back
Q 599; Q 614 Back
Patrick Carter, Managing Offenders, Reducing Crime, 2003 Back
Q 415 Back
Q 579 Back
Qq 508, 691 Back
Q 691 [Mr Quick] Back
Q 428 [Mr Neilson] Back
Q 442 Back
Ev w116; 177 Back
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
See e.g. Q 581 [Councillor Khan] Q 539; Q 565 [John Thornhill];
Q 444 [Mr Martin]; Q 695 [Mr Chantler] Back
Q 689 Back
Ev 224; w134 Back
Q 580 Back
See e.g. Ev w74; w103; w122; w41; w52 Back
Ev w99 Back
Ev w41; w52 Back
Ev w80 Back
See e.g. Q 698 [Mr Chantler] Back
Q 572; Q 579 Back
See e.g. Qq 672-3 [Professor Hedderman] ; Q 696-7 [Assistant Chief
Constable Long] Back
Qq 719-723 Back
Q 752 Back
Q 749; Q753 Back
See e.g. Ev 178; 196; w103; w125; w131; w139; Q 702 [Mr Long] Back
Ev w125 Back
Ev w124 Back
For example, the Connect project funded by the European Social
Fund. See Q 691. Back
Justice Committee, Cutting crime: the case for justice reinvestment,
para 352 Back