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The noble Baroness, Lady Scotland, acknowledged that at least one area of offender management was not covered by Clause 4 protection—that of advising the parole board. Amendment No. 51A, in the name of the noble Baronesses, Lady Gibson of Market Rasen and Lady Turner of Camden, would rectify that. Does the Minister intend to accept the amendment today or to consider bringing back an amendment on Report? On the past statements made by the Government, that would seem the logical thing for them to do. Today, the noble Baroness, Lady Gibson, has made a powerful case. As I said, I shall not get involved in negotiations between the Government and others to delay contestability, but I see the logic and force behind her argument, given the concessions already made by the Government in another place.

What other areas of offender management are not protected by Clause 4? Whatever is covered by the Clause 4 concession, the period of its life seemed to be lengthened by the noble Baroness, Lady Scotland, when she responded on a different amendment during our debates in Committee. She stated that,

I wonder whether the Minister is being very generous and saying that the foreseeable future is only until Mr Brown calls the next election. If so, she is of course in accord with her honourable friends in another place. To me, however, the foreseeable future sometimes seems to be a little further in the distance than that. Perhaps she has no ambition about winning the next election, but we need to know what life this protection is likely to have, and we need clarity on the matter today.

3.30 pm

Lord Northbourne: Will the noble Baroness, Lady Linklater, clarify one point? In the context of the amendment, how do we measure rehabilitation? How do we know when rehabilitation has been achieved? Is it achieved over time? What is it? We have talked a lot about it, and I believe that it is absolutely fundamental to the work of the National Offender Management Service. Surely we must all be clear what we mean by it so that we can have a level playing field for contestability.

Baroness Scotland of Asthal: Perhaps I should start by assuring the noble Baroness, Lady Anelay, that I am totally at one with my right honourable friend the Home Secretary, and that I have every intention of doing everything I can to ensure that this Government win the next election, as I am sure the noble Baroness will do from her side of the House. I hope that she will be as successful as she was the last time, and that we will repeat the same position.

The amendments do give us an opportunity to talk about a difficult and important issue, and I very much thank the noble Baroness, Lady Linklater, for tabling them. I am sure she will correct me if I am wrong, but I believe that she very much posits them to enable us to clarify and understand where we actually are rather than for their technical niceties. I hope that by responding to them I will be able to provide the clarity that the Committee needs.

The amendments of the noble Baroness, Lady Linklater, and of my noble friends Lady Gibson and Lady Turner seek to achieve similar ends, albeit by slightly different means. The restriction, which we will debate shortly in more detail, means that the Secretary of State will not be able to enter into a contract with any non-public sector provider for the court work that the Probation Service currently does. The provision could be repealed only after a vote by both Houses of Parliament. However, we added Clause 4 in the other place to meet some very specific concerns about the particularly sensitive area of advice to the courts—advice on which the rest of a sentence might depend. We acknowledge that there are anxieties about possible conflicts of interest. The amendments, of course, go much further.

I should also clarify our reasons for giving that assurance. The assurance reflects our desire to move cautiously, as well as our view that the non-public sector providers do not yet have the experience or expertise necessary for this important core area of work. We want to make it clear that we do not think that this will change in the next three years. My noble friend Lady Gibson made a point about the importance of best value. Best value means looking for the entity or person who is best able to deliver that service. If the public sector is best able to deliver that service, then of course it should continue so to do. Who is best able to perform the service is a judgment that can be made .

I turn first to the amendment in the names of the noble Baroness, Lady Linklater, and the noble Lords, Lord Dholakia and Lord Wallace. Were this amendment to be passed, the only aspect of probation services that could be commissioned directly from a non-public sector provider would be the work which probation does in conditional cautions, giving assistance to persons remanded on bail and giving information to the victims of those charged with or convicted of offences. The noble Baroness clearly could not intend that as there simply would not be a practical basis on which we could move forward.

These areas of work constitute a small proportion of the overall probation workload. If the amendment were passed, virtually all services could be commissioned only from the public sector even if a provider from the charitable, voluntary or private sector were able to demonstrate that it could do a better job. The noble Baroness highlighted some of the areas in which the charitable and not-for-profit voluntary sector is doing a fabulous job, and I know that all of us would wish it to continue doing so. The amendment would make it much more difficult, if not impossible in practice, for services to be commissioned across geographical and organisational boundaries and make it more difficult to create consistency for offenders between prison and probation and to deliver economies of scale in, for example, areas of specialist provision. Because of the way in which the amendment is phrased, my noble friend Lord Warner rightly alerted us to the danger. It would cut us off from an opportunity to use those who could assist in a very beneficial way. The cumulative effect would make it harder for organisations such as Nacro, Turning Point, and Rainer, which have so much to offer, to make their full contribution and to supplement public service probation provision in the way that they, and we, would like.

Baroness Linklater of Butterstone: Is the Minister not forgetting the whole area of interventions? My amendment specifically relates not only to the court services, but also to core management which is inextricably related to the advice in relation to what the court does or may decide. I did not address interventions at all.

Baroness Scotland of Asthal: The noble Baroness referred, I think, to the community pay-back work and the way in which that can be done. That is intervention.

I hope that the Committee can see that it was our intention to solidify the position that we now have and give a greater degree of certainty, which is why we introduced Clause 4. Perhaps it would be right also to remind the Committee that an amendment which would have had a similar effect to this one was debated extensively in the other place. It was rejected for the reasons that I have just given. It was seen quite clearly as something which would unnecessarily restrict others from coming and helping us in this regard.

I turn now to the amendments tabled by my noble friends Lady Gibson and Lady Turner. Amendment No. 51A seeks to add the work which probation does in relation to the Parole Board in the early release and recall of prisoners. First, let me repeat what I said when we debated conflicts of interest. We have no immediate plans to open up this area of work to competition. We have given a guarantee to Parliament that we will not contract with a non-public sector provider for core offender management work for three years, which includes the provision of assistance to the Parole Board. However, as we discussed during our first day in Committee, probation involvement in the parole process is rigorously governed by the Parole Board Rules 2004. The proposed revision of the Parole Board Rules will see these further strengthened as they take the form of a statutory instrument. If in the future we decide the time is right to open up this area of work, the rules will apply to all providers involved in delivering this work regardless of whether they are from the public, the private or the voluntary sector. As these robust safeguards are already in place, we simply do not believe that the amendment is necessary, although we understand why it has been tabled and why it is necessary for me to repeat these assurances.

Amendment No. 51B seeks to add the management of approved premises to the list of restricted services. Currently there are 104 approved premises in England and Wales, including 14 which are run by voluntary management committees and one by a private sector organisation, so we already have a mixture of management in that regard. As noble Lords know, they are used primarily to supervise high risk of harm offenders on release from custody. Clause 10(5) specifically clarifies that the Secretary of State may use his powers under Clauses 2 to 6 to commission the construction and/or operation of new approved premises. The approach suggested by my noble friends would, with respect, take us backwards from where we are now. The amendment would exclude the private sector while ensuring that the number of voluntary sector providers remains permanently as at commencement. I am not sure that I completely understand the position and I cannot believe that that is what my noble friends want. Their dislike of us using the private sector inappropriately is absolutely clear, but it is not justified on our experience to date. Where we have engaged with the not-for-profit sector and the private sector, we have a number of examples of doing very well indeed—not for ourselves, but for the people for whom we care.

Public protection will be our overriding priority in commissioning all services. That will be especially the case with regard to approved premises, given the types of offenders they contain. Approved premises will continue to be used primarily to supervise offenders released from custody on licence who are assessed as presenting a high or very high risk of harm to the public. I am conscious that the noble Baroness, Lady Howarth, is not in her place—

Noble Lords: She is.

Baroness Scotland of Asthal: The noble Baroness was not there when I last looked, and I am greatly relieved because on the last occasion in Committee she told us powerfully about the role of the Lucy Faithfull Foundation in relation to the management of sex offenders. We have relied on the voluntary sector, which has developed a high degree of specialised expertise in certain areas, to help us in times of difficulty. Moreover, the Probation Service has been extremely grateful for such help and support in the past and I am sure that the service will continue to wish to secure it in the future. So those managing and working in approved premises will monitor offenders’ compliance with their licence conditions, including curfew, enforcing hostel rules and acting upon any evidence of concern as regards offenders’ behaviour. They will need to work closely with offender managers and with partners such as the police within the multi-agency public protection arrangements. Because of this, we will ensure that contracts to run approved premises are awarded to those who can demonstrate that they and their staff are competent in managing high risk of harm offenders. That will be the case whether the provider is from the public, private or voluntary sector.

As I have said, we intend to proceed cautiously. The public sector will continue to take the lead role, and provided its performance meets the requirements, the probation trust will be the lead provider in the probation area. The lead provider will concentrate on the delivery of offender management while sub-contracting much of its intervention work to other providers. But to achieve this, we need a system in place that is sensitive enough to respond to local needs, one that allows every provider to play to their strengths and robust enough to ensure that this vision becomes a reality. The Bill and the commissioning system to be introduced will allow for this. With that in mind, I hope that my noble friends will feel more confident about withdrawing the amendment, conscious as I hope they will be that that which they wish to see is actually going to be done.

The noble Baroness, Lady Anelay, raised the issue of a timetable. There is no timetable for lifting the Clause 4 restriction. The three years refers to the non-legislative commitment on wider offender management work. I hope that will enable the noble Baroness to feel more comfortable about where we are and that I have been able to give the clarity the Committee seeks.

3.45 pm

Baroness Anelay of St Johns: Before, as I anticipate, the noble Baroness, Lady Linklater, moves to withdraw the amendment, perhaps I may say that the Minister has assisted me today and achieved some further clarity. However, there is still illogicality in her position in regard to Amendment No. 51A. She appears to be arguing that the amendment relates to the same kind of work as is covered by Clause 4 but that it is not going to be given the same legislative protection under this Bill as the other work in Clause 4 because it may be covered by other protections elsewhere. I have some unease about the logicality of the Government’s position, but that is for others to argue.

I am interested in the manner in which the Minister argued in defence of Clause 4. As I understood it, she said that those matters in Clause 4 would be exposed to contestability as and when private companies and voluntary organisations demonstrated their ability to take on that work. We all agree that that is the only reason why there should be an opening of the gates, but the gates, surely, should be opened wide only if those bodies can demonstrate that there is no conflict of interest.

The Minister went on to say that it is not the Government’s intention that there should be a conflict of interest. Is she saying that in the future when contracts are awarded once Clause 4 protection has gone—or before that for advising the Parole Board because that is of more immediate interest—no contract will be issued where the person bidding for the contract to provide advice has within their business portfolio any other business that might benefit from the provision of probation services that might be taken up as a result of that advice being given to the Parole Board?

Baroness Scotland of Asthal: All those issues will have to be looked at. Let us not consider this from the point of view of the voluntary sector or the business sector; let us look at the innate conflict that those two sectors may argue the public sector currently has. The public sector can currently say, “We are going to advise the court that it should only ever place people in the public sector and not in the voluntary sector or the private sector. We believe that we should maintain a monopoly in relation to those issues”. We are taking all of that argument away and saying that there are certain objective outcomes which we should ask of all those who seek to do this work.

There are certain conflicts of interest that we all need to bear in mind in determining how these will be phrased. We can do that through the contract by setting clear targets in terms of outcomes. What outcomes do we need to see? What training should the people undertaking this work undergo? What probity should these individuals demonstrate? If we take it away from private, public and not-for-profit voluntary and ask what are the criteria—criterion if it is singular—that each of these competing entities needs to satisfy in order to get the commissioned contract, that would give an objectivity which would enable us to get the best from all sectors.

Perhaps I may take this opportunity to remind the Committee of what our view is as a result of the empirical data that we have. We believe that in order to meet the needs of the individual offender and the individual victim, it is likely that you are going to have to have a partnership response, which may in part be public, in part be private and in part be voluntary, because that will respond best to the identified needs of the individuals with whom we are faced. This is not about the Probation Service, it is not about the private sector and it is not about the voluntary sector. It is about the needs of the individual people we are supposed to be serving, and any structure which meets those needs is the structure that we want.

Baroness Linklater of Butterstone: I have listened carefully to the Minister. I share with the noble Baroness, Lady Anelay, a sense of lack of clarity. Perhaps when we have read and dissected Hansard it will become clearer. I reiterate that our position is that the restricted advice and assistance that the Probation Service will be giving the courts is also inextricably linked to the ongoing review of people who are then going to have their situations referred back to the courts for further assistance and further guidance. It is hard to distinguish that area of work from what the Government have already agreed should be the province of the public sector Probation Service.

I remind the Committee of the wise words of the noble Lord, Lord Judd. We have in mind a clear fundamental objective: how best to rehabilitate offenders. I contend that there is a simple thread of logic running through what we are trying to say. We on these Benches have no problem with a variety of providers in the appropriate area of need. I drew attention to that, as the noble Baroness recognised, and there are many other examples. For the time being I am not going to press my amendment, but will very likely come back to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 51A and 51B not moved.]

Clause 4 agreed to.

[Amendment No. 52 had been withdrawn from the Marshalled List.]

Baroness Gibson of Market Rasen moved Amendment No. 53:

(a) shall by order specify factors, relating to the quality and value for money offered by the other person, by reference to which such decisions shall be made;(b) shall not set minimum targets for the amount of probation provision to be made by persons within the private or voluntary sectors.

The noble Baroness said: The proposed new clause is simple and clear. Again, it seeks to clarify. It places a duty on the Secretary of State to ensure that factors of quality and value for money are taken into account when contracts are agreed. It also places a duty on the Secretary of State to ensure that a report is published that gives the reasoning behind any decision that is taken. That makes sure that the process is transparent and can therefore be questioned, which in turn brings discipline to the whole process. It is also in line with commitments made in the other place by the Home Secretary, Dr Reid, at Third Reading on 28 February, to the effect that probation work would no longer be put out to contract on an arbitrary percentage basis and that such a report would be presented. I beg to move.

Baroness Turner of Camden: I support my noble friend in moving the amendment. It is as well to remind ourselves that Clause 3(2) says that the Secretary of State may make contractual or other arrangements with any other person for the making of probationary provision. It seems to be in the general public interest to ensure that in making such arrangements there should be value for money and a certain number of constraints placed on those arrangements, including the necessity to report back and explain the basis on which decisions are made, in order to give effect to Clause 3(2). That is sensible, and I hope my noble friends on the Front Bench will be prepared to accept it.

Lord Ramsbotham: I have added my name to the amendment. Subsection (1)(b) states that minimum targets shall not be set for the amount of probation provision by the private and voluntary sectors. I am concerned that that could conflict with the two terms the noble Baroness referred to—“quality” and “value for money”. The Minister has been saying that it is important that we have the best. It follows that it does not matter where the best comes from, and we should not bind ourselves with targets that might interfere with that very important decision.

The Earl of Listowel: I support the amendment. I listened carefully to what the Minister said previously about involvement of the voluntary sector. I recall Dame Suzi Leather visiting the Cross-Bench group some time ago and speaking about the Government contracting out work to the voluntary sector. She reported that three-quarters of the contracts were inadequately funded, which is a great cause for concern. I recognise the important step forward the Government are trying to take, but we all know how very difficult it is to get commissioning right. It is an extremely complex business, and we have not been good at it in the past. It is therefore important to insist in the Bill that contracts have as their starting point value for money and good quality instead of, as is often inadvertently the case, being the cheapest deal one can find. That we must avoid at all costs.

Baroness Stern: I support the amendment, to which my name is attached. I appreciated hearing what the noble Lord, Lord Warner, said in response to a previous amendment about contestability bringing in lots of people such as family doctors. I speak as someone involved in an inquiry under the Joint Committee on Human Rights into the protection of the human rights of elderly people in health and social care. There may be another way of looking at this. We have discovered a widespread situation in homes for elderly people run by the private sector. Staff who are paid the minimum wage go off at 5 o’clock to do another job, coming back on duty eight hours later, because the salary that people who run such homes can offer is very low. I warmly support the amendment; if we do not have quality and value for money written into the Bill, it will be very difficult to avoid lowering standards when cheapness becomes the prevailing value.

Lord Warner: I rise, not quite so quickly, to oppose the amendment. It is an unnecessarily bureaucratic way of dealing with what is essentially a contracting issue. I hear what the noble Baroness, Lady Stern, says about shortcomings in particular providers outside the public sector in other areas of public policy. We could all trade examples of failures of public, voluntary and private providers of public services. That is what regulators and inspectors are there to help deal with. That is not the issue here; it is whether we should, as the amendment proposes, tie up a Secretary of State over the detail of a contracting process for alternative ways of providing services to the traditional probation service. Telling a Government how to draw up a contract in primary legislation, as the amendment would, seems absurd; then requiring them to publish a report on a set of individual decisions on these contracts is going over the top.

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