Clause 4

Offender Management Bill – in a Public Bill Committee am 4:30 pm ar 16 Ionawr 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Power to establish probation trusts

Question proposed, That the clause stand part of the Bill.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 4:45, 16 Ionawr 2007

We move on to the power to establish probation trusts and the authority that is given to the Home Secretary by order to establish a probation trust, to alter its name and, ultimately, to dissolve it.

We seem to be continuing the theme of the top-down approach, in that this would see the Home Secretary acquire powers that are currently vested in probation boards. I hope that the Minister will be able to assist the Committee by answering my questions. If I understood him correctly this morning, he anticipates that the first probation trust will come into effect in April 2008. He mentioned the figure 42, which, I think,  was the total number of trusts. Will he clarify whether a maximum number is envisaged, how they will be set up and what sort of rolling programme he has in mind for their establishment?

One thing that is made clear in the explanatory notes rather than on the face of the Bill is the fact that it is not intended that a probation trust should be attached to a specific geographical area, which suggests that trusts will be nationwide rather than being anchored to a particular locality or geographical area. If that is the case, the Minister needs to explain how the system will operate. It has been suggested that there might be competition between probation trusts. Again, how will that operate if there is no geographical issue? And how will the framework or terms of reference be encapsulated with regard to how trusts are intended to operate? If there is no local link, which is what I understand by the reference to there being no geographical link, how will the locality issues be assumed within the system?

Many hon. Members have stressed the need for the provision of local services to maintain the positive aspects of rehabilitation and local input in the system. However, that does not seem to be assured in the Bill and the explanatory notes. The Minister might say that it could be stressed in the contractual arrangements or the orders establishing probation trusts, but the importance of local links is loud and clear, particularly for charitable and voluntary organisations, which are key players. Maintaining a permanent link is the glue of the system, which is important to its stability.

It has been said that the purpose of the trusts will be specified in the establishing orders mentioned in clause 4(1)(a). Those orders will include contracts for probation purposes, but not exclusively—subsection (2) states that they will include those purposes. Will the Minister explain what other purposes are envisaged for probation trusts? Will the purposes extend to prison services, so that we might have the reverse of the previous situation with the Prison Service being able to provide probation services? I look forward to the Minister’s response on that point.

Subsection (3)(b) mentions the possibility of other specified activities being carried out “anywhere in the world”. I wondered whether that was a new land grab by the Home Office to extend the extraterritoriality of its powers, but I understand that it relates to the “service courts” mentioned in paragraph (b)(i). Will the Minister confirm that that means courts martial or similar, or does it have another meaning? It is not a phrase that I have come across in this context, and clarification is needed of what is intended and whether those courts are why subsection (3)(b) refers to activities “anywhere in the world”. Are probation trusts to have that strange extended reach given to them?

There are various order-making powers in the clause, and subsection (4) contains the ability to restrict probation trusts in certain ways by prescribing limited activities for them. Will the Minister explain why that was felt to be required? One would have thought that the general flexibility of the clause would be sufficiently wide to give such latitude. Is the idea to  create a geographical or other framework? I look forward to confirmation of the intention behind the subsection.

On a technical note, subsection (5) states:

“A purpose so specified which relates to the making or performance of contracts includes the carrying out of any activities relating to a contract of a relevant kind (including activities taking place before it is made or after it is terminated).”

The explanatory notes state that that power is needed to allow probation trusts to bid for contracts and deal with post-completion issues. However, bids might not lead to contracts. A bidder does not know whether they will be successful, because they are tendering. The clause and explanatory notes seem to suggest that the power is needed because of activities occurring before a contract is made.

I have a technical concern—if a contract is not made, as will be the case for unsuccessful tenders, is there a gap in the wording? Should the provision refer to prospective contracts as well as contracts? We require clarification whether the additional power is needed by probation trusts in order to make bids. Whatever we may feel about the general nature of the issue, it would be odd from a technical perspective if a probation trust were to act ultra vires in connection with unsuccessful contracts, but were protected in relation to successful tenders. There are certain questions that relate to the clarity of the intention behind the clause. I look forward to hearing the Minister’s answer to my specific points.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

As in this morning’s sitting, I would like to ask the Minister two questions, each of which takes slightly longer than an intervention would permit.

First, I remind the Minister of the debate about consultation that we had on Thursday. I asked whether NOMS and the local management trust ought not to be required to make arrangement for an advisory board of some sort, which could be drawn from a pool of organisations provided by the Bill. Will the Minister consider whether clause 4 would be the place to make the requirement for an advisory board? It could just about be suggested that schedule 1 is the place for that, but this is a bigger issue for the main body of the Bill, rather than a schedule. I ask the Minister for clarification on that point.

Secondly, probation trusts may be set up by an order under clause 4. What role does the Minister see for Parliament in the scrutiny of an order that might be made to set up a trust? My reading of the Bill is that three kinds of order are contemplated. The first, with which we are all familiar, is the affirmative procedure order, whereby a draft is produced and both Houses have to vote positively for the order. The second type, with which we are also familiar, is the negative procedure, whereby the order must be published and Members can pray against it—there may or may not be a debate and a vote on it later. The third kind is a purely administrative order made by the Minister. In clause 28, in which the orders are explained, the order that is crucial to the whole Bill falls into the third, administrative, category, which I have just described. It is on a par with a commencement order in that the Minister has only to make it for it to take effect. Given the concerns that hon. Members have expressed about  the lack of detail in the Bill on the big changes thatare being made, and the desire of hon. Members to scrutinise the Executive, should the order not be subject to an affirmative procedure, rather than an administrative process?

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs)

I shall focus my remarks on clause 4 and the specific provision for the creation of probation trusts. I will advance a couple of thoughts as to why I am not convinced that it is the right way forward, and I look forward to the Minister’s response. I have two main areas of concern. The first is the disruption to the service that might ensue from the creation of probation trusts, and the second is the equally important consideration of a lack of local accountability.

I will deal first with the potential disruption to the service. A number of hon. Members have already referred to the fact that NOMS has been established for only a relatively short time, since 2000. There is an argument that it has not had time fully to establish itself before being changed again. Although there is no general dispute that some improvement is required, we have concerns that the wholesale changes in the Bill could result in an increased reoffending rate, rather than the opposite effect, which it is designed to achieve.

There is also the possibility of even more people going missing while on probation, thus adding to the general confusion. With an already high reconviction rate among those on probation of 53 per cent., we cannot afford to risk creating even more confusion.

There are more effective ways of effecting change without unnecessary bureaucratic shifts. We have heard from hon. Members about the practice in Scotland, where community justice authorities of local elected councillors produce plans on how co-operation will be realised and how service delivery can be improved and enhanced.

We are still not clear about how probation trusts will differ from probation boards—I hope that the Minister will address that—except that, according to the papers, they will be more “business-led”. It would be helpful if the Minister could say how business people will be recruited to sit on the trusts and whether there will be some remuneration for the individuals involved. The case for replacing boards with business trusts has not yet been made. Probation boards should be community-led and should be a public service, with the public interest in sight at all times, not their wallets. The move away from probation trusts will stop that from happening.

On the lack of local accountability, probation boards had locally elected councillors and magistrates on them, whereas, according to the proposals, probation trusts will not. We need as many connections with the local community as is practically possible to ensure that the provision is community-led. Replacing boards with trusts will, I fear, mean that there will no longer be any local accountability over how they are run. Local people will no longer have any influence over the probation service or how probation services in their local area are run. I am sure that the Minister and right hon. and hon. Members agree that it is hugely  important that the local community should have faith in its probation services, in order to help with the rehabilitation of ex-prisoners and their acceptance into the community after their sentences have been served.

I am sure that there is also broad agreement that magistrates need to be fully involved in the process to ensure that courts are not unwilling to give out community sentences. They need to be assured of their success and effectiveness. I should be grateful if the Minister would address those concerns in his response.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 5:00, 16 Ionawr 2007

I welcome you to this afternoon’s proceedings, Mr. Atkinson. I acknowledge the contribution that the hon. Member for Cheadle has made to the debate. I should point out to him that there is no confusion in relation to the Home Office—no matter how many times he says it, that does not make it right. It is clear what we are about and what we are trying to do. A number of problems are a cause for concern and need to be addressed, but there is no confusion—we are very clear. In July, the Home Secretary set out where we were heading in the reform of the Home Office. The hon. Gentleman will be pleased to know that we are making good progress, despite the odd hiccup.

The hon. Member for Hornchurch tried to claim that the issue is about top-down processes and centralisation, but it is not about that, although I know that I did not convince him in the debate on clause 3 and that he remains sceptical. We all agree that we want to achieve the same target, which is to reduce reoffending, and we also all agree that we should adopt a whole-community solution to offending. Tackling the problem is not just a matter for the criminal justice system or the probation service. We must adopt a whole-community solution if we are to deal with the issue adequately.

This morning, I talked about the cost to the economy of reoffending. I say that in the context of our debate about what clause 4 does. As has been said, local probation boards will cease to exist in their current form. Clause 7, which we shall come to later, makes the formal provision for that. Under clause 3,

“The Secretary of State may make contractual or other arrangements” with a range of providers, including the voluntary, charitable and private sectors, as we have said, but that does not mean the end of the public sector. Duringthe break between Committee sittings, I met representatives of the trade union Amicus and its members from the probation service. They were firmly of the view that this was all about privatisation. I was pleased that I could reassure them that that was not the case; we then got down into a detailed discussion about the direction of travel.

The proposal certainly is not about getting rid of the public sector—far from it. Clause 4 gives the Secretary of State the power to establish probation trusts as the public sector provider with whom he may make these arrangements. This will be done, as was said, by an order that 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. There is no grand plan to take over the universe; it is about making sure that there is also local accountability. However, the  order will not limit their activities to that area. So, a trust with particular expertise in one aspect of service delivery might deliver that service in another area as well as its own. The detail of this will not be specified in the order, but will be a matter for the contracts.

Clause 4(1)(c) also enables the Secretary of State to dissolve a trust by order. There are two main sets of circumstances in which that might happen. The first is if a trust failed to secure contracts, and the second is if two or more trusts agree together that they would be more effective by merging their operations. We would expect that sort of initiative to come from the trusts themselves, and I make it clear that there are no plans for mergers from the centre—they would have to be from discussions between the trusts.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman says that, but as we go on to debate the criteria we believe that there may be opportunities. However, they will have to be identified by local communities and probation trusts in consultation with the wider community.

Clause 4 then goes on to give more detail about what the purposes of a trust may include. The main purpose, as subsection (2) makes clear, is

“the making or performance by the trust of contracts with the Secretary of State” for the delivery of probation services. Subsection (3)(a) confirms that the purposes may also include the making or performance of contracts with another trust, or any other party, for the delivery of probation services.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I have been reflecting on what the Minister has said about mergers and so on. It brings to mind the plan for police mergers that was eventually withdrawn after the most enormous amount of lobbying and effort. Can the Minister assure the Committee that there will be no plans from the centre for mergers of probation board trusts, and that any representations for changes in structure will come from the bottom up, not the top down?

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

I am grateful to the hon. Gentleman for his intervention. He will know of the evidence heard at the Home Office by the new Home Secretary. Having listened to the representations made, we have not proceeded down that route of amalgamations—although discussions are taking place about how we can get greater effectiveness and efficiency. As for the merger of probation trusts, we would expect that to come from the bottom up—the trusts themselves. However, we are clearly creating the framework for that opportunity to occur.

I return to subsection (3)(a), which we believe is important because, as indicated previously, we arekeen that providers develop partnerships between themselves, and that not all contracts are held directly by the Secretary of State. We want to have that innovation, and for people to work with each other. Subsection (3)(b) clarifies that a probation trust may  deliver probation services to service courts “anywhere in the world” in the same way that probation boards do now. The hon. Member for Hornchurch is quite right about the service court martial. It is, in fact, a military court and the naval courts have that facility. Meanwhile, subsection (3)(c) confirms that the purposes may include other purposes set out in regulations.

Subsection (5) makes it clear that a trust’s purposes may include activities before and after a contract is in place. In other words, a trust may be established to bid for a contract in the first place, and may continue in existence after a contract has ended for as long as is necessary to wind up the businesses appropriately. It is worth pointing out here that the Bill does not require all trusts to be created at once; that is not what we intend to do. As I said this morning, this is no big bang and we will not rush these reforms in overnight. We want a measured approach, balancing the need for urgent improvements with the system’s ability to cope with change.

The hon. Member for Hornchurch asked me to confirm that the first trusts would be in place after April 2008. I am happy to do that. The others will follow in phases thereafter. We will shortly launch the consultation on the selection process and the criteria to be used in determining which board will move first to trust status. We want to work closely with the service and with our key stakeholders throughout that period. The process will be open and transparent.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The Minister has kindly confirmed that it is intended that the first trust willbe established on 1 April 2008. This morning, he mentioned the figure 42. Can he confirm the basis of that figure, and whether it is intended to cover all the probation trusts that he has in mind?

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

That is the number of existing boards, and they will have to meet the criteria if they want to become trusts. This is about innovation, and if all42 boards want to become trusts very quickly, I shall be very happy. There is nothing to prevent that from happening, but the likelihood is that they will develop over time. Their growth will depend on their performance, on the criteria that we have set out and on the skills that they develop.

The hon. Member for Cheadle asked who will be on the trusts and quoted a document that talked about their being business friendly. We aspire to involve business in the context of the wider community, not to prevent people from joining trusts. When I took over this role, I was concerned that there seemed to be a view abroad, particularly within the Probation Boards Association, that we were trying to prevent people from sitting on trusts and that all we wanted were sharp-suited business people who would take the service over. We do not see that as a solution.

We are trying to ensure that trusts are fully representative of local communities, so when we talk about who is to be on them, we are not trying to prescribe who should be there by saying that there is a list of those who must be on them. We want to offer the widest possible opportunities. We have just recruited the next set of chairs and vice-chairs. They represent a  strong and wide-ranging field—councillors, business people and people from the voluntary sector—and I am happy about that, because it adds to what we want to achieve through the trusts.

My hon. Friend the Member for Stafford has discussed consultation, which he also mentioned the other day. I said that I would consider the idea of the advisory board, because I have some sympathy with it. On scrutiny, he asked about the order-making power. He is right to say that it is not there but that it is, as he set out, similar to the commencement orders, which are absolutely necessary for the contractual arrangements. There might be commercial reasons for not wanting to go back through the parliamentary process, but the scrutiny is in place in so far as the Secretary of State has to report back to Parliament. I would ask my hon. Friend to let me think about the issue in a bit more detail, because I am not entirely convinced by my own arguments or by the notes that I have received.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

Just to give an example from this very debate, hon. Members have asked the Minister to give an assurance that mergers will not be forced from the centre in the future. What if an order were made in future to dissolve a couple of probation boards in order to force through a merger? I think that Parliament would want to be able to say that that was not what the Minister said at the time. The way to consider such a proposal would be through the statutory instrument procedure, which we will not have if this measure stays as it is.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

That further emphasises the point that I want to go away and consider. I am aware of the commercial problems that might occur, and I want to balance them in deciding the way ahead. I am happy to find out what, if anything, can be done, and will let the Committee know my decision so that we can return to the matter at a later stage, if necessary.

We are not denying people the ability to serve on trusts. In fact, we want to encourage the right cross-section of people to do so. We believe that the orders set out in clause 4 are appropriate. With that—

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

That is the word I am looking for; I am grateful to my hon. Friend. With that reassurance, I hope that the Committee will support the clause.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.