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Lord Dholakia: My Lords, this appears to be the appropriate time for me to speak to my Amendment No. 121C. Let me first concede that the Criminal Justice and Court Services Bill is an important piece of legislation. We should never lose sight of the various provisions in the Bill which are designed to take into account issues of concern highlighted in recent times. The Bill is more effective now than when it was first introduced in your Lordships' House. The noble Baroness, Lady Blatch, and her colleagues on the Conservative Benches and we on the Liberal Democrat Benches must share a great deal of credit.
Equally, I believe that after losing successive votes during the passage of the Bill the Government have looked at our concerns and offered solutions. For that, I am grateful to the noble Lords, Lord Bassam and Lord Bach, and the noble and learned Lord, Lord Williams of Mostyn.
There is no fundamental disagreement on three of the four issues which need resolution. That has already been identified. We are content with the assurances on the matter relating to hostels. However, I hope that the noble Lord will take into account some of the concerns expressed by the noble Baroness, Lady Blatch. We have no concerns about the chief inspectors of prisons and probation. We are pleased that there is no intention to combine the two posts and I thank the Minister for his assurance. But it would have saved so much time if that ill-conceived idea had not been floated in the first place. Let us hope that it is buried for good.
Then there is the matter of who owns and manages land used by the national probation service. Again, if the Minister were to clarify the Government's position as indicated to me in his letter of 27th November there is no dispute that local probation boards will be responsible for the management and maintenance of the buildings they occupy. I look forward to having that assurance.
There now remains one matter which needs to be resolved. It relates to the procedures for appointing chief probation officers. There is a fundamental disagreement between the Government and ourselves on this matter. The Government's key objective is the successful creation and management of a national service. We subscribe to that aim. They see the appointment of the chief probation officer by the Secretary of State as crucial to that aim. We disagree with them. We believe in local accountability. The system has worked well and has delivered what was asked of it. To take its chief officers under central control and allowing the boards to appoint other staff is a recipe for disaster. I cannot see any precedent and the Minister has agreed that there is no precedent for such action with any other bodies.
The Government's solution as reflected in the Minister's amendment simply tinkers with the procedure without due regard to the principles of local
accountability and management of its affairs. We may ask why the Government want to establish a system which is so oppressive. They have enough powers to deliver a centralised service without recourse to central employment. Perhaps I may spell that out and examine the controls which the Government already have.The controls available to the Secretary of State include the appointment of chair members of the local probation boards under the Bill before us; default powers under the Probation Service Act 1993; and the removal of board and activation of a management order under this Bill. The latter allows the removal by the Secretary of State of any or all of the members of the board, including the chief officer who will be a member of the board. The Secretary of State has available 100 per cent funding, again under the present Bill; control of the allocation of funding between boards under the Probation Service Act 1993; ring-fenced funding for specific Home Office priorities under probation rules; the control and allocation of capital budgets under the probation rules; and the approval of chief probation officers for selection and appointment by probation committees under the Probation Service Act 1993 and under the probation rules. Your Lordships can see that the Secretary of State already has wide powers. Why does he need any more powers?
Let us look at the accountability of boards through the Secretary of State for expenditure and service delivery. The list includes annual audit by the Audit Commission; inspection by Her Majesty's Inspectorate of Probation; national standards; annual reports--
Lord Williams of Elvel: My Lords, I thank the noble Lord for giving way. He appears to be making a Second Reading speech on Commons amendments. I believe that the House would prefer him to make a speech about the amendments in front of us.
Lord Dholakia: My Lords, what I am saying directly relates to the powers of the Home Secretary so what I am saying is necessary. The noble Lord might like to refer to my speech in Hansard. I shall continue with it. The list includes an annual report and regular returns of specified statistics. That information is available to the Home Secretary. A number of possible alternatives could be put in place regarding chief probation officers.
I accept that a good start has already been made by the Home Office in relation to the assessment of candidates for chief officer posts. With the exception of the inevitable teething troubles, the new assessment centre process looks promising and rigorous. Not only will it provide a pool of candidates assessed as suitable but it will also identify training and development needs for those who do not pass first time. Again, we welcome that. Candidates will be approved for particular posts or a range of posts. Those powers are already available to the Home Secretary.
The process is, in effect, a licence to practice as a chief officer in the Probation Service. That is good enough. If that licence is available, employment by the
local probation board should pose no problem whatever. Arrangements could be made for the secondment of chief officers. Least satisfactory but worth considering is the appointment of a chief officer to a local probation board by the Secretary of State. That is possible, so why do we need a centralised appointments service?I am well aware of the disputes which are pending on the basis of the selection procedures adopted. The Minister's formula means that the buck stops with the Secretary of State. What a sorry state of affairs if in future the Home Secretary has to appear in industrial tribunal on employment disputes with chief probation officers.
Let me spell out two other concerns. The obsession with central control creates a system which will be seen as oppressive and remote. The only element in the criminal justice system which offers some support to those appearing in court is the Probation Service. The criminal justice process is valid as long as we all have a stake in it and we share its ownership. If that is lacking the system will lose its credibility. There is also the frightening thought that some Home Secretaries could use the system for political expediency from which we are immune at present. I trust that the Minister will think again.
4.30 p.m.
Baroness Blatch: My Lords, the Minister who both defended the position of the Government today and kindly wrote to us in the period between the Bill leaving this House and returning to it has totally missed the fundamental point made by all noble Lords in previous debates. Although this is a narrow technical and legal issue it is a matter of extreme significance. One is considering here the ownership, culpability, responsibility and accountability of the chief officer to the service of which he is head. Who is to be the employer, not when things go right but when they go wrong?
At the outset, I must pose some very important questions. Are these bodies corporate bodies? What operational autonomy will be enjoyed by the chief officers as they execute their responsibilities? Under the terms of the Bill is the chief officer a public office holder or civil servant? It is no secret that as to those questions the Home Office is in great disarray. It is essential that we receive unequivocal answers to those questions today.
The chief officers of the probation service will be absolutely dismayed by what the Minister's said today about their performance. We are all aware of inconsistencies. Both the present and previous governments have gone a long way to try to improve consistency across the board. The previous government introduced What Works policies. Those policies have been continued by this Government and much progress has been made. However, the Home Secretary approves the appointment of every single chief probation officer. It is not good enough that the Minister should stand at the Dispatch Box today and
denigrate the performance of chief officers of probation when he is at least partly culpable in that he approved their appointment in the first place.The noble Lord said that there were only two strands to the argument: first, that local was best. Local is best because that is where the service is delivered. If it is not effective at local level it is not effective at all. The second strand relates to management. Linear management is absolutely crucial. I note that when speaking to these amendments in another place the Home Secretary likened the service to a company in private business. The analogy in private business is for W H Smith to have its head person appointed by Waterstones. Further, W H Smith is one single national company. That is not a good analogy at all. The noble Lord has been at pains to tell us that the boards are corporate bodies. We know that those boards are not NDPBs, but we should like to know their precise status.
Just as there were a number of questions left unanswered on the issue of bail hostels, a number of matters remain unresolved in this context. The Minister said that through its chairmen the service itself would be involved in the appointment of chief officers. I would have hoped that that would happen without the need to place it on the face of the Bill. It is important that the service has such a role. Therefore, although I welcome that concession it is not one that displaces much that has been said about the amendments.
I do not repeat the enormous number of powers that the Home Secretary has at the moment and will have under the Bill which give him 99.9 per cent control of the service. With almost complete control, one wonders just how personally culpable the Home Secretary will be if something goes wrong. One wonders just how culpable will be the Home Secretary, who wants to be the ultimate line manager in the technical and legal sense, if he merely comes to the Dispatch Box to announce that the chief officer of Whatshire has done something wrong.
The document emanating from the Home Office makes it explicit that in the event of a conflict between the chief officer and the chairman of the board the employees of the board shall follow the instructions of the chief officer. But the chief officer may be at odds because he follows the instructions of the Home Secretary. Some learned minds believe that that will create problems which may need to be settled in court in the likely event of a conflict. Is that really what the Government want? The proposed legal structure gives the probation staff two masters, with the obvious additional complexity that the chief officer is a member of the board. The chief officer is also a direct Home Office agent. It is legitimate to ask whether that arrangement is coherent in employment and public law as both frameworks are relevant.
Tensions are inherent in the architecture of the service and can be expressed in employment law before employment tribunals, particularly in cases of actual and constructive dismissal or judicial review of the acts or decisions of employers. There may be
disagreements between boards and chief officers about the distribution of resources and consequent priorities. For example, the chief officer may wish to make enforcement the chief priority, whereas the board, with a clear duty to the local community, may opt to prioritise spending on crime and disorder matters.The model set out in the Bill does not have the ability to resolve potential problems where the chief officer belongs to the board but reports elsewhere. At present, conflicts will normally be resolved by a decision of the committee. The dynamic created by the proposal is highly problematic. For example, there could be structures to resolve disputes but the Government do not appear to believe that they are necessary. The links between the Minister, chairman, board, chief officer and staff are complex but remain unresolved in this Bill. There could be policy and operational distinctions, such as occur with Next Step agencies. Occasionally, when a problem presents itself resort has been had to such a distinction to decide who should have done what.
Home Office documents refer to resolutions of conflict between the chief officer and the board. They suggest that the incidence of conflict may be too rare to worry about it. Importantly, employment law suggests that what matters is the pathology rather than the healthy state of an organisation. One cannot assume that there is no need to worry about conflict: that is just what one must worry about. We are all aware that goodwill can make most things work where the organisation is in a healthy state. Serious tension will need to be resolved in a much more formal way.
I should like to record another tension. I refer to judgments about the performance of chief officers which I believe will be a real issue. One would have to be aware of the distinction between a failure in performance and failure to follow a particular political line. The specification of the position of the chief officer in following the wishes and instructions of the local board is vital. Clear and simple management structures are of the highest importance. If there was a linear structure of accountability with boards having clear accountability to the national director and the political centre, chief officers employed by board would be stronger and clearer in their role and it would provide the Minister with a more direct cogent route.
I spoke to officials yesterday on the telephone. The Secretary of State could withdraw his approval of an appointment, which would probably mean dismissal of the individual if the Minister believed that in some way the performance of the chief officer was such that it gave rise to concern. Clearly, before a tribunal he would have to give reasons.
I return to the questions that I posed earlier. What is to be the status of the chief officer? Will he or she be a civil servant or public office holder? What is the status of the board? Is it a corporate body? What degree of operational autonomy is to be enjoyed by a chief officer who serves his local community? The nature of a public office holder implies autonomy as with the charity commissioner and the data protection registrar. But in the probation proposal the status of
the public office holder is being compromised by the level of direction. I support the amendment of the noble Lord, Lord Dholakia.
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