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Resolved in the negative, and amendment disagreed to accordingly.

5.18 pm

Clause 3 [Power to make arrangements for the provision of probation services]:

Baroness Anelay of St Johns moved Amendment No. 4:

The noble Baroness said: My Lords, I shall also speak to the remaining amendments in the group, which are all consequential on Amendment No. 4. I am grateful to the Probation Boards’ Association and the National Association of Probation Officers for their support, and I thank noble Lords who have added their names to the amendments. We return to the major bone of contention between these Benches and the Government that we were unable to resolve in Committee. We firmly believe that the power to commission probation services should be in the hands of local probation boards and trusts. My amendments seek to make that happen.

The government system puts the power at the centre, with the Secretary of State. That denies the localism that we believe should be at the heart of service delivery. In Committee the Government sought to reassure us by arguing that most services would in fact be commissioned locally by lead providers operating within a framework agreed with the regional commissioner. The noble Baroness, Lady Scotland, said there was not as much between us as I thought. I have looked very carefully at everything she

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said in Committee and at the speech made by the noble and learned Lord the Lord Chancellor recently at the probation conference, but the gulf between us remains.

The Bill clearly puts the power to commission services into the hands of the Secretary of State alone. He may delegate that power to others, but it is his choice, his power, to exercise as and when he chooses. There is no guarantee that he would delegate that authority, when he would do so or that he would do so in an appropriate manner which meets local needs. There is no guarantee that he will use his centralised power only if it can be shown first that local probation boards or trusts have failed in their own commissioning to ensure the satisfactory provision of probation services.

All the Minister’s assurances about delegation by the Secretary of State cannot disguise the simple fact that the Bill vests the power to commission services centrally, in the Secretary of State’s hands. I was nearly caught out there, still thinking that this was one of the powers in the Home Office now moved to the Ministry of Justice. Let us see what powers remain at the Home Office tomorrow. Perhaps that will go too. Perhaps, like the DTI, it will go “poof” into thin air. Let us see what happens.

We have redrafted our amendments since Committee to make our intentions even clearer. My amendments would vest the power of commissioning services in the local boards and trusts, but they ensure, too, that the Secretary of State would have a backstop power of commissioning where services would not otherwise properly be provided—or, of course, he could provide the services himself. I hope that that will meet the concerns expressed earlier on Amendment No. 2 by the noble Baroness, Lady Howarth.

Our proposed new clause to require probation trusts and boards to prepare plans also contains a scrutiny and backstop power for the Secretary of State. The trusts are required to produce a plan setting out what services they consider need to be met during the forthcoming year, who will be commissioned to provide them and at what cost. If the Secretary of State considers that the trusts will not make sufficient provision of probation services, he can modify the trusts’ plan.

We believe our amendments give the right balance between the importance of local commissioning and the need to give the Secretary of State the backstop power to step in if things go wrong. They would not hinder the roll-out of contestability; they would empower local probation trusts and boards to commission services that meet local needs. We prefer to see local decision-making wherever possible. In the context of probation provision, we believe it is both possible and preferable. I beg to move.

Lord Filkin: My Lords, I regret delaying my noble friend on the Front Bench but this is an important amendment on important issues.

Perhaps I may start where there is substantial agreement, if not unanimity, across Front Benches and around the House. We are agreed that it is

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important that action is taken to reduce reoffending and better protect the public. I do not think that any of us—I hope none of us—is content with where we are; change is necessary. I think there is agreement, certainly with the main opposition Front Bench, that we need a wider diversity of supply and we need contestability in the system if we are to get better outcomes and results. I hope there is agreement that that requires innovation about how we deliver these goals. This will not be achieved by just doing more of what we are doing at present. Therefore, if there is substantial agreement, at least with the opposition Front Bench, on those elements of what the Bill needs to be about, the debate becomes one about means rather than ends: how do we get to a system that is better at protecting the public and at reducing reoffending by better harnessing the diversity of supply and contestability and creating a culture where the existing deliverers rethink what they are doing to get better outcomes and better results?

The amendment is flawed because it will not lead to the shift of culture, thinking and role that is required to achieve these ends. It will not lead to significant use of the voluntary sector. It will not lead existing delivery bodies to realise that they have to think about how and when to use other suppliers, nor that their current processes may not be the most perfectly designed to get the required results. I say that for two reasons. First, we know it if we look at public service reform over the past 20 years. That is what happens to institutions; when they are required to make a significant shift, they usually do the minimum necessary to comply. It is as if the opposition Front Bench had said to local government in the 1970s, “We won’t have compulsory competitive tendering but we will have voluntary competitive tendering. We might do something about it if we thought what you did was unsatisfactory”. Nothing much would have happened, and not enough would happen in this context if we passed an amendment like this. People would do the minimum necessary to avoid intervention by the Secretary of State. That matters a lot, because it would not reduce reoffending.

Secondly, it would not be possible to have regional commissioning. I would have thought it was self-evident to most of us that there are a limited number of occasions when regional commissioning is in the interests of reducing reoffending. They will be few and far between, but there are occasions when you want to commission on a wider scale than the local, and you certainly want to be able to commission across the prison gate. The amendment is not likely to make that happen.

The fundamental argument is the one of shift of culture. We would get incrementalism. We would get, largely, the status quo, and there would be lots of legalistic arguments about when the Secretary of State was justified in intervening. We will not shift culture, and I fear that this is in part a wrecking amendment, disguised in the seductive clothing of localism. For that reason I do not find it persuasive.

Baroness Carnegy of Lour: My Lords, the noble Lord has put the Government’s case very well: the system is not working well, so we will give it to the

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Secretary of State to do and then it will work. However, the National Association of Probation Officers makes the point that crime is mostly local, and people expect the solutions to come locally. They will trust a local system much more than a central one. In fact, very often the local system works better; of course it does—we know the problems at the moment—but my noble friend’s group of amendments includes a fallback position for the Secretary of State. She has pointed out that, if the right thing does not happen, the Secretary of State can go into action. Give the local system a chance, then bring in the Secretary of State.

I do not want to keep referring to Scotland, but there is a basic assumption in the Scottish legislation that everything happens locally because the functions of the Probation Service are carried out by a department of local government, the social work department. There is no thought in Scotland of a central solution like this. That is much more likely to work. I see what the Government are trying to do; it is rather characteristic of them: “If we give it to the Secretary of State, who, after all, is operating on behalf of the people, everything will be all right”. I do not think it will. My noble friend has made a good compromise, in a way, in her group of amendments, giving the Secretary of State a fallback position. I hope the House will support this.

Lord Warner: My Lords, we have to understand why things are being changed. Local services have had plenty of opportunities over the years to do all these things. There has not been a great deal to stop them undertaking some of these changes. Some loosening-up changes were undertaken by the previous Government, who made provision for probation to commission more services from outside. We have to ask why it has not happened. We also have to consider—as I considered very carefully—when the noble Baroness, Lady Anelay, thanked her supporters, that they would say that, wouldn’t they? It is worth bearing in mind that some of these amendments look to some of us, who have been down this track in other areas, like classic public-sector protectionism. However one wraps it up, they have an underlying presumption, I suggest, in favour of public sector providers, rather than having the best person to do particular jobs.

5.30 pm

If we could have relied on the existing arrangements for providing the most appropriate service provision for offenders, we would not need this legislation, which will enable the best available provider to be obtained for meeting local needs. In meeting those needs, it may well be necessary to commission some specialist services—a good example would be for sex offenders—over an area that is much wider than that covered by the local trust or boards. These amendments would make that extremely difficult so that, through going local, we would actually be denying offenders access to some services.

We should be clear about what this Bill represents. It reflects a good deal of—some would say profound—dissatisfaction with the current arrangements, which

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restrict the range of service providers required to tackle offending behaviour effectively. As in other parts of the public service, we need more contestability. The noble Baroness acknowledged the need for contestability, but her amendments would make that less likely and a wider range of service providers less likely.

To effect the changes, the Secretary of State’s powers should not be fettered by these amendments. It is not a question of centralism versus localism. This is about the machinery that is more likely to effect change in circumstances about which there is a lot of dissatisfaction. It is naive to believe that, if this were left to the 42 local trusts, they would all embrace equally, firmly and enthusiastically the concept and principle of a mixed economy of providers. I am surprised that the party opposite, which has accepted contestability in other areas of public service provision, such as the NHS, seems here to be halting and inhibiting that development in criminal justice.

A lot of honeyed words have been used during the passage of this Bill about the work of the Probation Service. I support much of its work and the way that many of its staff do an excellent job in extremely difficult circumstances. I spent two years as a Home Secretary’s special adviser and five years as a chairman of the Youth Justice Board. That has given me an opportunity to see up close—and not always comfortably—the culture of some parts of the Probation Service. My noble friend Lord Filkin rightly drew attention to the issue of culture. That is at the heart of this matter. There is a tendency in some parts of the Probation Service to look inwards defensively, and then turn aside from involving outsiders. Some of us have actually seen that in action. It is a sad fact of life.

I find it interesting that ACEVO supports the model in this Bill. The voluntary sector has sometimes been on the receiving end of that culture where it has got—and, in some cases, has developed—good services that will benefit offenders but has been thwarted in its attempts to make them available. That is in a culture of localism.

This is not an attack on the Probation Service, but it is a strong urging to leave the structure of the Bill as it is on commissioning if we really want to see a mixed economy of providers which will deliver the kind of services that we all acknowledge many offenders need.

Lord Wallace of Saltaire: My Lords, we now see the extent to which we are debating a key issue. We heard from the noble Lord, Lord Warner, that central government are clearly far more efficient than local providers and that, since localism does not produce anything, we need clearer central control. We heard from the noble Lord, Lord Filkin, a remark which, in terms of what I understand our new Prime Minister to believe, is rather anachronistic—the seductive clothing of localism. I rather thought that our new Prime Minister believed that we needed a restoration of local innovation and diversity.

Lord Filkin: My Lords, I am sorry to make a habit of interrupting when I feel that the noble Lord, Lord Wallace, has misquoted me. I was saying, as a strong localist, that the localist argument is being used to

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defend what is at heart a substantial wrecking amendment. One must have a sophisticated ability to support localism and to recognise that one cannot, in a grown-up world, leave everything to localist decision-making, otherwise there will be problems. Any party which has been in government would know that.

Lord Wallace of Saltaire: My Lords, I have followed with much interest the public service reform of the past 20 years. I was glad to hear the noble Lord, Lord Filkin, confirm that the new Labour Party has taken up a Conservative programme of public service reform, which indeed it did. I am old enough to remember when local authorities had enough autonomy to provide innovation—the West Riding County Council was one of the best experimenters and innovators at the local level. Part of the thrust of government policy through successive Governments over the past 30 years has been to remove autonomy and the power to innovate from local authorities and give it to the centre. I hope that we may be shifting away from that centralist drive to a period in which local interests and diversity are allowed. If we are to move to a wide diversity of supply—to quote, I hope accurately, the noble Lord, Lord Filkin—we need the diversity of supply which comes from partnerships with local voluntary organisations, and I stress the word “local”. This is a very important amendment, and we on these Benches support it strongly.

Lord Adebowale: My Lords, I declare an interest as chief executive of Turning Point, an organisation that provides services to many ex-offenders. I cannot support the amendments. They have a slight whiff of “if it ain’t broke, don’t fix it” about them, but we have agreed that the system is broken and needs fixing in some fundamental ways.

The point was made at Second Reading—and I think I made it—that it is not about localism or big government. The solution is not either/or but and/and. We cannot have a mixed economy unless that balance is correct. I do not accept that localism will produce the intended consequences that have been set out in the amendment. My organisation, along with many others in the voluntary and third sector, would be concerned if the amendment were to be accepted, as the noble Lord, Lord Warner, has pointed out.

The amendments include a presumption in favour of the public sector which, coming from the Conservative Benches, surprises me. Probation boards and trusts would have no incentive to approach other providers, which is a critical part of the shift—the changing culture—that is required to get the mixed economy necessary to change a system which needs some support.

There is a lack of clarity about the circumstances that are referred to when sufficient provision by the probation services is not being made. In what circumstances would it be appropriate for the Secretary of State to intervene? I am also concerned that it would be difficult for very local probation

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boards or trusts to think strategically. This point has already been made but there are examples that I may highlight later about innovative specialist services, particularly those provided by the third sector, which often go beyond what the noble Lord, Lord Wallace, referred to as local. We come back to the point about referring to the third and voluntary sector as though it exists only locally. It can exist locally and nationally, as my organisation can testify. These specialist services often need to be delivered on a more regional basis and we need to allow for that. They could be delivered on a regional, or in some cases, national level.

In this debate, there has often been a tendency to talk as if what matters is the sector that an organisation comes from. People have enthused about the private sector and public sector ethos and mentioned the third sector and the voluntary sector in terms of our ability to engage with service users. While there may be some evidence to support some of the characteristics present in those sectors, such an approach is far too simplistic. Each sector is very diverse with organisations demonstrating good and bad practice. Commissioners need to have the strength and freedom to commission services from the right provider for the job, no matter what sector they come from. Any presumption in favour of one sector limits that freedom, which would therefore mean that the best service for the offender and the public is not necessarily being commissioned. Public services are just that: services for the public.

What matters is getting the best service to reduce reoffending, not which sector provides it. Often, the right approach is to work in partnership across the sectors to make the most of all the talents. In case there is any doubt about where I stand on this, I want to place on record my respect for the excellent work undertaken by probation officers who work for the Probation Service, many of whom already work in partnership with my own staff at Turning Point and other organisations throughout the third and voluntary sector providing substance misuse services as part of community sentences in places such as Somerset and Sheffield.

I understand that some concerns have been raised about the ability of the third sector and voluntary sector to deliver what is required of it. I want to finish with some examples so that we can move on from the issue of the third sector and voluntary sector as part of a mixed economy. They show what is already being achieved by my own organisation and others from the voluntary sector that are working in partnership with probation services throughout the country to deliver substance misuse treatment as part of sentences.

My own organisation is working in partnership with Serco and the Rainer Foundation to deliver employment support for offenders in the south-east. The charity Nacro is providing basic skills training alongside Sussex Probation. The organisation Pecan’s Workout project is also providing an employment service for ex-offenders throughout the country where innovative commissioners have worked with the third sector and voluntary organisations that have stepped

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up to the plate and which recognise the need to reduce recidivism and turn around a system that is not working for the public.

Unfortunately, the way in which services are currently structured means that the third sector has often played a rather limited role in the provision of probation services. The amendments would retain those limits rather than allowing commissioners the freedom to get the best service for the offender and the community. The third sector is not asking for special treatment. Third sector organisations should have to prove alongside other organisations that they can do the job as should statutory and independent providers. Nevertheless, to get the best and most innovative services, commissioners need to look at every sector, and all providers should have the opportunity to demonstrate what they can do to improve the system.

Lord Ramsbotham: My Lords, I have listened with a certain amount of incredulity to what has been said because every single person who has spoken has spoken in support of what the amendments are trying to achieve. I am also confused, and always have been, about the criminal justice system in this country. Nobody knows the costs of imprisonment or probation. Therefore, we are all talking in riddles, because we do not know what we are talking about.

What do I mean by that? We have said time and again what ought to be done with offenders, but nobody has actually costed that. Therefore, if you do not know how much it will cost to provide what you say you want to provide, it is no good deciding who will do what because you do not know whether you will have the resources to do it.

5.45 pm

I am sorry to go back to my previous Whitehall experience in the Ministry of Defence, but every year when there was a White Paper or a list of tasks, they were costed. We passed the costs upwards to the Treasury. Usually, the Treasury did not give enough to provide what was needed to match those tasks. You went through what was called a basket-weaving exercise where you looked at all these tasks and at what was desirable, essential or nice to have to do them. You then presented Ministers with a series of options, explaining that because this was the only resource that you had, these were the options. You asked, “Which ones, Oh Minister, are you going to take and which are you going to give up?”.

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