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I was also asked whether in effect the 42 trusts are simply going to be replaced by the 42 boards. I hope that, by talking about the tiered approach, I have made clear the expectation that by the end of the process the 42 trusts will be capable of being converted into probation trusts; but that depends on their being able to demonstrate that they meet the criteria for conversion. There are high-performing probation boards that one can envisage will do so with greater ease than others, and they are most likely to be in the first wave; those which are solid but perhaps still a little challenged might comprise the second wave; and the most challenged in performance, one can anticipate, may take a little longer and therefore are likely to be in the third wave. The boards will be awarded trust status when they have demonstrated their ability, but under these provisions, if they are not able to do so, we will be able to make appropriate changes to meet that eventuality.

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Lord Wallace of Saltaire: I thank the Minister for those reassuring words. Many on this side of the Committee welcome the commitment of the current Chancellor of the Exchequer to strengthening the role of Parliament in checking the Executive, and that is one of the reasons why we are not entirely sure whether we would wish to apply the predecessor example of the NHS in this area. Nor would many of us welcome the speed and extent of the structural churning of which the noble Lord, Lord Warner, appears to be so fond. The slow and proportionate process described by the Minister is therefore extremely welcome.

Last week I heard the current chairman of the Labour Party, a former Home Office Minister, give a powerful speech on the need to restore local autonomy and local democracy. There seems also to be a structural contradiction between the commitment of the current Government to that need and the idea that one sets up, abolishes or changes—sometimes for commercial reasons—bodies involved in the local delivery of services which are of direct concern to local communities, such as law and order. That is why we support pressing these amendments, and we are not yet entirely reassured by what the Government are saying.

Lord Ramsbotham: I should like to ask the Minister two questions. I am grateful for her clarification, but by what criteria will trusts be judged, and who will select boards to become trusts?

Baroness Scotland of Asthal: As I have indicated, the criteria for becoming a trust have been consulted upon. I shall certainly look to see what we can make available to assist noble Lords’ understanding. To the extent that I am able, I shall certainly ensure that that is done.

In the first wave, the eligibility of probation boards to become trusts will be assessed by examination of their performance against national targets and standards together with the inspection results. The inspection criteria are available. Suitability will be assessed through a combination of self-assessment, stakeholder surveys, audit reports and diagnostic assessment by commissioners in partnership with the delivery and quality teams in the National Offender Management Service.

The review panel will comprise two NOMS directors and be attended by the chief officer and chair of applicant boards. The panel will ask questions and provide challenges on the capability criteria. Application boards will be expected to answer questions on their self-assessment as well as all other supporting material forming the capability assessments, and to provide evidence where necessary. The review panel will decide the final outcome by endorsement of the Secretary of State and will be empowered to either approve, partially pass—that is, limited freedoms—or defer to the next wave the application if it is deemed that the probation board applying for trust status is not yet ready. Each of the phases is designed to provide a robust mechanism to measure boards against the capability criteria and to give feedback to unsuccessful boards to assist them in becoming trusts in the future.

We are looking at these issues in a concrete way. The assessment process that probation boards are going through is helping them to enhance their performance. As I said, although many boards are performing to a very high standard, others have found it difficult to rise to the challenge for some time and may therefore have greater difficulties.

Baroness Anelay of St Johns: The Minister was right to anticipate my support for government Amendment No. 129. That means, of course, that automatically my Amendments Nos. 55, 56 and 57 fall. So I address myself now solely to my concerns about the issues behind Amendment No. 59 and the lack of parliamentary scrutiny for the establishment and/or dissolution of trusts.

The Minister pointed out that the Government intend the introduction of trusts to be carried out in a cautious and measured fashion. She has put a little more flesh on the bones, as she put it, without the analogy becoming in the slightest bit obese; the Committee would like to see a little more fat and information on these matters. She has taken us a little way down the line but in a way that makes me even more concerned about the lack of parliamentary scrutiny for the establishment and, particularly, the dissolution of trusts when that might be necessary.

My real concern was to ask the Government for their justification in treating this aspect differently. The Minister repeated the rather brief argument that it was for commercial reasons. That is not a satisfactory answer. Parliament has a proper part to play in such scrutiny. The noble Lord, Lord Warner, prayed in aid what happens in primary care trusts. He was right not to push the analogy too far because we have been exploring in great detail over the first three days in Committee how we hope contestability might work within providers and probation trusts and we have not compared it like with like to the National Health Service. There are significant differences.

Lord Warner: Can the noble Baroness explain why there is such a difference, when primary care trusts have both a provider and a commissioning role? A probation trust may be in both those relationships. There seems a considerable analogy between the two in terms of functionality, even though the services are different.

Baroness Anelay of St Johns: The noble Lord, Lord Warner, would have a stronger point if the Government had not conceded already by Clause 4 that they are in trouble and have had to ring-fence some of the original services. So I do not take the strictures of the noble Lord, Lord Warner, in that respect.

The existing parliamentary scrutiny of the formation and dissolution of probation boards was helpful. As we move into a new area, which I hope will be very successful and wish well, parliamentary scrutiny is important. I am always aware that if we casually discard the right of the two Houses to exercise parliamentary scrutiny, we never get it back again. It is with that in mind that, while I shall withdraw Amendment No. 55, I give notice that I will seek to press Amendment No. 59 to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 58 not moved.]

Baroness Anelay of St Johns moved Amendment No. 59:

The noble Baroness said: I beg to move.

5.10 pm

On Question, Whether the said amendment (No. 59) shall be agreed to?

Their Lordships divided: Contents, 140; Not-Contents, 126.

Division No. 1


Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Blaker, L.
Bowness, L.
Bridgeman, V.
Brougham and Vaux, L.
Campbell of Alloway, L.
Carlile of Berriew, L.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Cox, B.
Crathorne, L.
Darcy de Knayth, B.
De Mauley, L.
Dear, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eames, L.
Elton, L.
Falkner of Margravine, B.
Flather, B.
Fookes, B.
Fowler, L.
Freeman, L.
Fritchie, B.
Gardner of Parkes, B.
Geddes, L.
Greengross, B.
Hamilton of Epsom, L.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
James of Blackheath, L.
Jones of Cheltenham, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Low of Dalston, L.
Luke, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Moser, L.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Parkinson, L.
Patel, L.
Pilkington of Oxenford, L.
Ramsbotham, L.
Redesdale, L.
Renton of Mount Harry, L.
Roberts of Llandudno, L.
Roper, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selsdon, L.
Sharp of Guildford, B.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Skidelsky, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Sutherland of Houndwood, L.
Teverson, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Williams of Crosby, B.
Williamson of Horton, L.
Willoughby de Broke, L.
Young of Hornsey, B.


Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Best, L.
Billingham, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Drayson, L.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones of Whitchurch, B.
Jordan, L.
King of West Bromwich, L.
Kinnock, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lewis of Newnham, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Marsh, L.
Mason of Barnsley, L.
Maxton, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Soley, L.
Strabolgi, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Uddin, B.
Varley, L.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.21 pm

Clause 5, as amended, agreed to.

Schedule 1 [Probation trusts: further provisions]:

Baroness Anelay of St Johns moved Amendment No. 60:

The noble Baroness said: In moving the amendment, I shall speak also to Amendments Nos. 61 and 64. In doing so, I welcome government Amendment No. 63, which goes a little way to satisfying our concerns, but not far enough. That sounds like an echo of my comments on the last group.

The Government have conceded the point that one of the members of a probation trust should be a member of a local authority, which brings a guarantee of better local input and accountability than is in the Bill as currently drafted. However, the Government have so far refused to accept that one of the other members should be a magistrate. Magistrates currently sit as members of probation boards.

Schedule 1 sets out some of the detail of the membership of the probation trusts and how they should follow good practice in their proceedings. Amendment No. 60 would change the minimum number of appointees for the probation trust from four to five, but it is simply a probing amendment to ask the Government to explain how they intend to fill the new posts. When we debated Amendment No. 14, we heard that the Government have already started to recruit chairmen and members, even though the Bill has not completed its passage through the House. On what basis is the selection taking place and what expertise will be required? The method of selecting chairmen is particularly important, as the Minister in another place said—in Standing Committee, at col.111 on 16 January—that it would be up to the Secretary of State and the chairman between them to decide how many members there should be on any given trust.

Why do I believe that magistrates should continue to serve on local probation organisations as of right—where boards, now trusts? If I am not too careful, I will be in danger of repeating at length the arguments I gave during the passage of the Police and Justice Act last year as to the merits of having a magistrate as a member of a police authority, so I shall resist the temptation to go into too much detail.

The Minister will recall that she reconsidered her position after a report on that Act last year and agreed that a magistrate should indeed be a member of the authority. That was a welcome development. I hope that she will take the same opportunity today to signal a change of heart with regard to the membership by magistrates of probation trusts. I strongly consider that magistrates should remain as a category of membership in their own right, not least because of the valuable expertise that they bring to the local criminal justice system. Magistrates have invaluable local knowledge—a prerequisite of their appointment as a magistrate to their local bench. Many of them are business people but all of them have a business-like attitude. They would not survive as successful magistrates these days if they did not. It is important that they should remain members of trusts as of right rather than being left to the melting pot of selection among all applicants who are swept up in the reference to “other members” in paragraph 3(1)(a) of Schedule 1.

Amendment No. 64 is probing in nature. It explores the membership of trusts but goes wider and asks why the Government are not including in that membership representatives of the judiciary, police authorities and health experts. If they are not members, how do the Government intend that their expertise should be utilised?

It will remain important for members of probation trusts to have the widest possible experience of the justice arena and a local community background. Magistrates fulfil that requirement admirably. I beg to move.

Baroness Scotland of Asthal: I thank the noble Baroness for raising this issue as it enables me to deal in part with government Amendment No. 63. A vigorous debate on these issues occurred in the other place and gave rise to the government amendment.

I shall outline our response, but I say to the noble Baroness that I am almost timorous in doing so because she has said on a number of occasions that the Government have given in on something and that means that they must be giving in on everything. I add a word of caution as that might tempt us to think that it is not worth giving in on anything if that is the response.

Baroness Anelay of St Johns: I am grateful to the noble Baroness for giving way. I was trying to give her credit and say that, on occasion, the Government accept a logical argument. The logical argument here is that we are discussing a similar local organisation whose knowledge of and expertise in criminal justice should be valued. Therefore, I hope that she will be able to exercise the same acumen as she did last year.

Baroness Scotland of Asthal: I thank the noble Baroness for her compliment, which I take in the spirit in which I always take compliments from her, as they are so genuine and heartfelt.

The amendments address a number of separate but related issues. It may therefore be helpful if I set out the background before I discuss the individual amendments in turn. When probation boards were first established under the Criminal Justice and Court Services Act 2000, there was a requirement for boards to include a Crown Court judge appointed by the Lord Chancellor, four magistrates and two local authority councillors. The requirement for a Crown Court judge is in the 2000 Act; the requirement for magistrates and councillors was in secondary legislation.

In November 2006 we amended the secondary legislation to remove the requirement for councillors and magistrates. We did so because 36 of the 42 probation boards had indicated that they required a reduced quorum to operate effectively. The previous arrangements would have prevented that taking place, as well as constricting our ability to recruit probation board members who suited the needs of their particular locality. It was for the same reason that, when we published our proposals for restructuring probation in November 2005, we made clear that we did not intend to apply any of these statutory requirements to the membership of probation trusts.

As for the judges, we felt that since the new arrangements envisage greater diversity of providers of probation services, it would be inappropriate for the Lord Chancellor to appoint a Crown Court judge as a member for just one type of body. Consultees, including the judges themselves, accepted this.

The rationale for magistrates and councillors was slightly different. We want the new probation trusts to be local bodies with a greater degree of independence from the centre. This means, as far as possible, letting them judge for themselves how they should be constituted according to their local circumstances and not being overly prescriptive from the centre. As now, members of probation trusts will be appointed by the Secretary of State, but chairs will be fully involved in the recruitment process.

During the Bill’s passage through the other place considerable concern was expressed about the importance of the role of local councillors. On reflection, we conceded that councillors, as locally elected representatives, have an important and very specific role to play in ensuring that accountability. Amendment No. 63, tabled in my name, gives effect to that commitment.

5.30 pm

However, I emphasise that we have made that change because of the very specific role that councillors can play in ensuring local accountability. I pray in aid the new position that we have in CDRPs, the local strategic partnerships, et cetera, where that interplay will be important. Amendments Nos. 60 and 61, tabled by the noble Baroness, Lady Anelay, seek to further restrict our ability to determine who is needed to deliver services most effectively in a given area. The amendments were discussed during Committee in the other place, but I am more than happy to set out again our thinking on these matters.

As the noble Baroness explained, Amendment No. 60 proposes that the minimum number of members in a probation trust should be raised from four to five. Amendment No. 64 proposes that each probation trust be chaired by a High Court or Crown Court judge, that the extra member proposed by Amendment No. 60 be chosen from a list of four eminent professions, and that the membership of a trust is representative of the population of the area in which it carries out its functions. I hope that I have already addressed the proposed requirement for the chair of the probation trust to be a judge of the High Court or Crown Court. Even the judges who disagreed with our proposals agreed that it would be inappropriate for them to be a member of a trust, let alone the chairman. This is not something to which they have given their assent. I know from the past that the noble Baroness would be the last person to say that they should be obliged so to do.

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