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The noble Baroness said: I shall speak also to Amendments Nos. 56, 57 and 59. My amendments deal with two objections to the drafting of Clause 5. The government concession in Amendment No. 129 in the same group addresses one of our concerns but leaves the other untouched. Clause 5 gives the Secretary of State the power to establish probation trusts. It is a wide power. He can establish a trust, alter its name or purpose and he can dissolve it. The area to be covered by the trust is not specified and will not even be specified in any order that establishes a trust. The Secretary of State can decide that himself, as and when he draws up contracts for trusts.

Clause 5(3)(c) provides that the purposes of a probation trust may also include any other purposes specified in regulations made by the Secretary of State. That is another extraordinarily wide power. What parliamentary scrutiny is to be given to these orders and regulations? None. As drafted, the orders under Clause 5 are not statutory instruments and not subject to any parliamentary procedure.

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The Government have of course agreed to put that right for one part of Clause 5, but not the other. When the Delegated Powers and Regulatory Reform Committee of this House reported on the Bill, it considered that it would be desirable for the Bill explicitly to restrict the purposes which may be added under regulations to probation purposes as defined in Clause 1, especially in view of the negative procedure applying to the statutory instruments there. While the committee accepted that there must be an implied limitation of some sort to the apparently open-ended extent of Clause 5(3)(c), the Bill does not confine the purposes which may be specified to those which contribute to the achievement of any purpose mentioned in Clause 2(1). The inter-relationship of Clauses 1 and 5 causes so much confusion and difficulty in trying to read the two together.

The committee recommended that if an express limitation of this sort were included in the Bill, the negative procedure would be sufficient. If the Government refused to do that, however, the committee considered that the affirmative procedure should apply. The route that the Government have chosen to adopt in their Amendment No. 129 avoids any express limitation but allows the affirmative procedure for orders under Clause 5(3)(c). In other words, we will now have the affirmative procedure for orders dealing with the purposes of a probation trust, but still, apparently, no parliamentary scrutiny for their establishment or dissolution.

When the Delegated Powers and Regulatory Reform Committee reported on the Bill in its seventh report, it stated in paragraph 23 that the Government’s memorandum suggests that it is appropriate to have no parliamentary scrutiny,

The committee said that it was not persuaded by this justification, and I agree. It said:

The committee recognised that the provision in the Bill might not be inappropriate but, because it had no information on the likely size and number of trusts, it could not make a recommendation. It therefore drew the matter to the attention of this House so that the Minister might be required to justify the lack of parliamentary procedure in Committee. That is why I have tabled my amendment. I ask the Minister to give the Committee the Government’s justification today, if they have one. I beg to move.

Lord Wallace of Saltaire: I support the noble Baroness’s amendment. We are moving towards a series of amendments discussing what a trust is, what its duties are and how its work fits in with those with which it co-operates. I say to the noble Lord, Lord Warner, in particular, that those of us who accept the principle of the mixed economy are concerned that it is well designed and functions for the purposes for which it was intended. In an earlier debate, I mentioned the example of the privatisation of the railways, in which an inappropriate model of piecemeal contracting and subcontracting was developed for railways maintenance, with extremely damaging consequences.

We all understand that offender management requires active co-operation between a number of agencies—some public, some private—which require long-term trust and co-operation. As set out, this clause does not tell us enough about the difference between a board and a trust, and exactly what a trust will do. I note from the noble Baroness’s letter of last week that probation boards are key members of local criminal justice boards, but we want to know exactly how trusts will operate in those circumstances. We do not know whether trusts will have the same geographical boundaries or whether the disappearance of chief probation officers locally will affect them. There is a host of unanswered questions here. We consider that the speed of the transition under the legislation offers a high level of risk. I declare my suspicion of the new Labour approach to many of these things. It is, “If in doubt, change the structure and certainly change the title of anything because that does something”. The National Probation Service was created six years ago, a range of changes has been set in train since 2004 and here are further changes, not yet fully explained or understood—perhaps the Government have not made up their mind about them yet—but we are asked to take them on trust; trust with a small “t”, in this instance.

We are entitled to know a little more. What is a trust? How does it differ from a board? Later amendments will discuss the composition of trusts in more detail. What sort of regulatory framework will these trusts have? How far will they be the lead providers of services? Will regional offender managers be able to go around them and commission lots of other services, which would make co-operation much more difficult? What will the transitional arrangements be? We do not have answers to these questions at present, and these amendments, and some of the following amendments, will probe them. Before we get to Report, we deserve more detail from the Government about what is intended.

Lord Ramsbotham: I found it interesting that in an earlier answer the Minister said that there is a requirement to give a degree of certainty. One of my concerns about this whole business of trusts is that this clause is all about the contractual details of the trust. I do not argue with that because we are all agreed that there has to be contracting and commissioning. We are not arguing with that at all. However, my concern is that, when reading the Bill, when trusts are mentioned for the first time, one would think that they are for contracting purposes only. In fact, they are not; they are part of the future governance of the Probation Service. Rather than giving certainty, they give uncertainty because the way that probation areas that are due to have a trust will be governed will be different from the way in which probation areas with existing boards are governed.

I find this process confusing. I can see the logic of the Secretary of State being at the pinnacle of the National Probation Service, which this Government set up, in exactly the same way as he is at the pinnacle of the Prison Service. He works downwards through a system to the probation officer on the ground or the prison officer on the landing. He does that through his chief probation officers or through a Prison Service chain that I hope we will have time to discuss. However, the chief probation officer is responsible and accountable for the delivery of probation services. It does not matter whether they are commissioned from the public, private or voluntary sector provided they are the best available. However, the chief probation officer needs to have a commissioning authority—whether called board, trust or whatever—that is also in the chain, but if a trust is to be by itself, and according to the legislation it is, he reports to the trust. We have to go back to the certainty required by the people on the ground who are doing the job.

This Bill is all about managing offenders; it is not about managing contracts. That is why I so agree with how the noble Baroness, Lady Anelay, has put the amendment in pointing out the need to have more clarity on the whole process, which includes the developing trusts.

Lord Warner: I understand the points made by the noble Lord, Lord Wallace, about seeking more clarity on how the trust will operate. I have no quarrel with that. However, the nub of the amendments—leaving aside the government amendment—is that they require the Secretary of State to secure the agreement of both Houses of Parliament when they set up, alter the name of or dissolve a probation trust, or amend an order in any way.

I suggest that that provision is unnecessarily restrictive and out of kilter with the way that Parliament has authorised the Executive to operate in a number of other areas of public policy. The one I know very well, and the one to which the Delegated Powers and Regulatory Reform Committee draws attention, is the area of NHS and primary care trusts. I do not want to push too far the comparison between probation trusts and primary care trusts, but primary care trusts are bodies that handle a substantial amount of public resource. They receive directly from the Secretary of State the money for commissioning healthcare services in their area. They currently spend about £60 billion of public money each year.

There is no requirement on the Secretary of State for Health to lay an order when he or she dissolves a primary care trust or to consult both Houses of Parliament on that order. He simply makes the orders to abolish, to change the name of and to establish primary care trusts. It is not as though Parliament did not consider informing the legislation whether that should happen. It did not happen by accident. Parliament decided that when you change strategic health authorities, the supervisory body for primary care trusts, an order should be laid before both Houses of Parliament and that there should be a process by which Parliament approved that set of changes. Therefore, Parliament has consciously allowed the Secretary of State the authority to make an order without scrutiny by Parliament but admittedly after a process of public consultation, which is good practice anyway, to change those primary care trusts.

I have to confess to the Committee that as a Minister I made orders last year abolishing about 200 primary care trusts and establishing about 50 new ones. That was done after a process of public consultation and in accordance with the wishes of Parliament. I suggest to the Committee that there is a reasonable comparison between primary care trusts and probation trusts. Admittedly, we have had that kind of delegated autonomy for health for a longer period possibly than we have had with probation. Nevertheless, primary care trusts spend an enormously greater amount of money than probation trusts. They commission a diverse range of services which affect the individual citizen. So there are some reasonable comparisons there.

Baroness Linklater of Butterstone: I rise to support both what my noble friend has said and the amendment of the noble Baroness, Lady Anelay. I am interested in what the noble Lord, Lord Warner, said because obviously the other trusts we know about are primary care trusts. I wonder whether the degree of vagueness and lack of any kind of detail of what these trusts are—a matter we are discussing today—applies also to primary care trusts. Indeed, I would say that the vagueness and lack of clarity on the nature of these trusts, their likely size, number, geographical distribution and their composition or way of working, which are all entirely undefined, coupled with the lack of parliamentary procedure to establish them, appears extraordinary.

Given that the probation boards are shortly to disappear, it is no wonder that the future is being viewed with such consternation and anxiety by the profession. From the government side, it may seem perfectly normal, but if one is to put oneself into the mindset of people in the Probation Service, it is extremely worrying. As the noble Baroness, Lady Anelay, said, even the timing of the conversion from individual boards to trusts is not clear, nor are the criteria that will have to be met for the transition to be made. Given the extremely important role of the trusts, it is surely critical that such basic issues are clarified.

Can the Minister give the Committee some idea of what criteria NOMS will be using in the integrated performance framework—which we understand it is developing to inform all decisions about public probation services—for those transitions? Will it consult the boards about that and make its thinking public before any vital decisions are made?

Boards will need to know what are the criteria against which decisions will be made about conversion—how trust status is both gained and lost. They will need to know that to plan and to be able to decide whether to apply to be a trust in the first place. As a starting point, there should be much more detail in the Bill to give the process a proper judicial framework. The Probation Boards Association is also concerned that there should be an independent regulator while the process is under way to assess whether the criteria for trust status are met. It must be made quite clear that such decisions are independent of NOMS.

Although it has already been agreed that courts services and core offender management will be reserved to the Probation Service, the timing of the proposed three-year period for offender management is still unclear. Presumably, it will be from the moment that a board achieves trust status, but that needs clarification. Can the Minister give us that clarity?

If we can assume that the lead provider model is to be adopted by the new trusts—something on which the boards are basing a lot of their thinking—for commissioning, perhaps the new trusts will have greater freedom than have boards hitherto in both practice and multi-agency working. The proposed, partially deregulated environment could be productive. They need clear assurances from the Secretary of State that there will be consultation on the new freedoms to innovate and become efficient.

It is clearly vital that the essentially local nature of the commissioning by trusts is maintained in conjunction with the co-operative working that currently exists with local criminal justice boards. These are complex, interdependent, multi-dimensional arrangements and are working well. Regional commissioning on a collaborative basis with other boards is also practical and desirable. It follows that the boundaries of the new trusts must not be so different from the old boards if chaos is not to ensue when provision is fragmented. Otherwise, everyone loses out, especially the offender and the public.

If the Secretary of State himself makes contracts directly with providers, that should be for services that cover more than one trust boundary, but should not undermine the local lead provider model. In contracting out, it is also vital that national standards are maintained and put on a statutory footing, so that the delivery of services through the contracting process does not vary from area to area. In turn, they should be backed by statutory duties for the ROMs to sustain the standards applied to the boards.

Ultimately, what matters is, whether restricted or contracted out, the service to the public is effective and offenders are rehabilitated. There must be clarity, openness and consultation throughout, so that everyone is in the loop and knows what the issues are. At present, however, the thinking is so shrouded in mystery and lack of clarity that it is very difficult to plan or contribute to a workable new way of working.

Baroness Scotland of Asthal: I hope that I will be able to give the noble Baroness, Lady Anelay, the clarity that she seeks, and the noble Lord, Lord Wallace of Saltaire, reassurance. I suppose that I should not be surprised by the degree of scepticism and concern, but I reassure the noble Lord that what we are seeking to do is proportionate and, I would argue, well thought out. I hope that I will be able to explain to him how it will work. We had the opportunity to put quite a lot of flesh on the bones during earlier Committee sittings, where I tried to detail how the trusts would work, but I am very happy to take this opportunity to put even more flesh on the bones. I hope only that no one will think that the analogy will be obese by the time I have finished adding to its substance. The amendment of the noble Baroness, Lady Anelay, gives me an opportunity to do that.

Under the Bill, as noble Lords are aware, local probation boards cease to exist in their current form. I entirely accept that that has caused anxiety, as the noble Baroness, Lady Linklater, says. Clause 8, however, makes formal provision for this. Under Clause 3:

a range of providers, including those from the voluntary, charity and private sectors. That does not mean, however, that we are privatising the Probation Service, which is one of the things that has been feared and talked about in the past. Far from it, because, as the noble Baroness pointed out, Clause 5 gives the Secretary of State the power to establish probation trusts as the public sector provider with which he may make these arrangements. Provided that their performance meets the requirements, probation trusts will become the lead provider in their probation area, acting under contract to their regional offender manager. Chief executives of probation trusts will no longer be line-managed by the director of probation in the National Offender Management Service headquarters, but will, under this construct, be managed locally by the chairs of the probation trusts. A degree of local autonomy in that regard will therefore be retained.

We want public sector probation services to step up to the challenge of making a real success of end-to-end offender management in probation and prisons. Probation trusts will concentrate on the delivery of offender management while commissioning much of their intervention work from other providers, based on what is most effective and who is best placed to deliver in their local community. As we have always made clear, we want to introduce these changes cautiously and in a measured fashion. Some have suggested that we are being too cautious and too measured, and that we should go much faster. I hear that even before it is said, but we think that this proportionate stance is the better way forward. Our aim is to provide the right mix of challenge and support to enable all probation boards to become probation trusts, in the next three years if possible.

We see this as a collaborative process, which is why we will invite—I emphasise “invite”—probation boards that meet the criteria on which we have just consulted to apply to become probation trusts. The criteria will combine assessments of each probation board’s performance with consideration of its underlying capability. The first wave of probation trusts will come into being in April 2008. The second, much larger wave will follow in 2009-10, with the final wave following in 2010-11. We imagine only a very small number of probation boards making the transition to become probation trusts in this first wave. With public protection and the reduction of reoffending at stake we have to get this right. We will aim to select a geographically representative range of probation boards, with a mixture of urban and rural, and large and small. We will prioritise applications from probation boards which can demonstrate how they would use their status as probation trusts to deliver real improvements to service delivery. As this is all about partnership working, we will want to see how they would disseminate their learning in order to support further waves.

We believe that that is a cautious and sensible approach. There will inevitably be lessons to be learnt from establishing the first wave, but under our approach these can be readily incorporated into the later stages. This gradual approach will also allow areas performing less well sufficient time to improve their performance prior to becoming probation trusts.

Clause 5 enables us to establish probation trusts by order, which will set out the name and purposes of the trust. It is envisaged that trusts will continue to be linked to and named after their local area, but the order will not limit their activities to that area. So, for example, a trust with a particular expertise in one aspect of service delivery might deliver that service in other areas as well as its own. The detail of this will not be specified in the order but will be a matter for the contracts that will be delivered in due course.

Clause 5(1)(c) also enables the Secretary of State to dissolve a trust by order. There are two main sets of circumstances in which this might happen. The first is if a trust fails to secure contracts. The second is if two or more trusts agree that they would be more effective if they merge their operations. But we expect such an initiative to come from the trusts themselves; there are no plans for mergers from the centre. Subsection (6) enables the order establishing a probation trust to be amended by a subsequent order.

These order-making powers are not subject to any parliamentary procedure. Perhaps I may pray in aid what my noble friend Lord Warner said about how this is done. There is a real business case for doing it with a facility, particularly in the circumstances I describe, where a probation board may come forward saying, “We are ready to do this. We would like to become a trust”. It would seem incredibly burdensome and arduous to demand in that situation that we go through the parliamentary process.

We believe that this is appropriate because a trust may need to be established also for commercial reasons; for example, to bid for a contract or because a contract is lost. As the Delegated Powers and Regulatory Reform Committee acknowledges in its immensely helpful report, for which I would like to take this opportunity to extend my thanks, this is similar to the procedures for establishing NHS trusts. It has asked for more information on how probation trusts will work in practice. Now that I have had the chance to set this out in more detail, I hope that noble Lords will be satisfied that the arrangements relating to establishing and dissolving probation trusts are subject to the appropriate level of scrutiny. I hope that the noble Baroness, Lady Anelay, and other noble Lords who have spoken, particularly those from the Liberal Democrat Benches—the noble Baroness, Lady Linklater, and the noble Lord, Lord Wallace of Saltaire—will think that this is an appropriate way forward.

I thank the noble Baroness in advance for her implicit assent to Amendment No. 129, tabled in my name. Clause 5(3)(c) gives the Secretary of State power to establish trusts by order, which must set out the purposes for which the trust is being established, and Clause 5 sets out what those purposes should include but gives the Secretary of State power to extend the purposes in regulations. The power to make regulations is currently subject to the negative procedure. As the noble Baroness indicated, the Delegated Powers and Regulatory Reform Committee has recommended that this power should either be limited in the Bill or subject to affirmative resolution. On reflection, we are persuaded by that and happy to accept the recommendation. For that reason, Amendment No. 129 will apply the affirmative procedure to this power.

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