Schedule 1

Offender Management Bill – in a Public Bill Committee am 5:00 pm ar 16 Ionawr 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Probation trusts: further provisions

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 5:15, 16 Ionawr 2007

I beg to move amendment No. 7, in schedule 1, page 22, line 13, leave out ‘four’ and insert ‘five’.

Photo of Peter Atkinson Peter Atkinson Ceidwadwyr, Hexham

With this it will be convenient to discuss the following amendments:

No. 8, in schedule 1, page 22, line 15, at end insert—‘(c) a magistrate.’.

No. 38, in schedule 1, page 22, line 15, at end insert—

‘(c) a magistrate for the area in which the probation trust carries out its functions; and

(d) a local councillor for the area in which the probation trust carries out its functions.’.

No. 27, in schedule 1, page 22, line 18, at end insert—

‘3A (1) The chairman of a probation trust shall be a judge of the High Court or Crown Court.

(2) The remaining members of a probation trust shall include at least one of the following:

(a) a District Judge;

(b) a member of the Police Authority local to the area in which the probation trust carries out its functions;

(c) a qualified psychiatrist from the Health Trust local to the area in which the probation trust carries out its functions;

(d) a member of the local authority to the area in which the probation trust carries out its functions.

(3) In appointing the members of a probation trust, the Secretary of State shall have a duty to ensure that the trust’s membership is, to the extent reasonably practicable, representative of the population of the area in which the trust carries out its functions.’.

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

We move to some of the more detailed provisions on the functions and operations of the probation trusts. I have some more general questions and queries on the schedule as a whole, Mr. Atkinson, but if I am able to catch your eye and if the debate does not wander too widely I hope to raise those in a stand part debate.

Amendment No. 7 would change the minimum number of appointees for the probation trust. To a large extent it is a probing amendment to find out how the Government arrived at the number of four and, more generally, to probe the constitution of the membership. It raises various questions. Under the Bill, a probation trust will have a chairman and no fewer than four members will be appointed by the Secretary of State. A chief executive will also be appointed, but we shall come to that role in due course.

It would be of benefit to the Committee and more generally if the Minister were to explain how the process is intended to operate. Will there be an automatic transfer of existing probation board members if, as the Minister said, it is intended to take a gradualist approach in converting the probation board to a probation trust, or is it intended to have a more general re-advertisement for its membership? What requirements will there be for the chairman and ordinary members to have expertise, training or other qualifications?

Although the Secretary of State will have wide-ranging powers to appoint the relevant members, it would not be unreasonable to ensure clarity and certainty by providing that members who are appointed should have relevant experience. The Bill seems to be silent on that matter, and I would be grateful if the Minister explained the Government’s thinking. The Minister may say that he wants as broad a range of people as possible—indeed, he has probably said so already—but it is obviously important to   understand the basis on which selection would take place and whether it is envisaged that qualifications, expertise, training or other requirements would inform the decision-making process. We have already touched on the question of diversity. I am sure that that, too, will be relevant.

The chairman and the other board members will be appointed by the Home Secretary. My question is about the pool of resources from which he chooses. The question was raised earlier this afternoon, and mentioned in debates last week, whether including specific lists in the Bill would be appropriate, and particularly whether it would restrict or frame the choices.

A specific issue needs to be addressed in the context of the relationship between the probation trusts and the magistrates and judiciary—a point to which hon. Members have already alluded in their more general comments on clause 4. None the less, it is worth examining the question in further detail. Turning Point highlighted the specific importance of magistrates in its briefing notes. It said:

“Magistrates currently play a central role in short prison sentences and the bulk of community sentences. The National Offender Management Bill proposes ending the statutory requirement for the judiciary to be represented on Probation Boards. However no alternative representation has been considered. If judges are not fully involved in the probation service, their confidence in alternatives to prison will decline.”

I know that certain changes have happened in this field, but that view highlights concern about the implications if there is not an established link between the activities of probation trusts and the magistrates. If a formal link is not intended, as in our amendmentNo. 8, what do the Government propose? What arrangements do they envisage to promote that consultation and, indeed, confidence between magistrates and probation trusts? When magistrates give community sentences, for example, they have a relationship with the probation trust and a confidence that services will be provided appropriately. Therefore, magistrates can have confidence in the decisions that they have made.

Some people have highlighted a concern about the relationship between community sentences and other forms of disposal. I am sure that the Minister would not be happy if an inadvertent consequence of the Bill would be to add to one of his other problems, such as the ever-burgeoning prison estate, which he is trying to manage. The overcrowding of prisons and, therefore, the need for community sentences to be viewed with confidence is key to the decisions that magistrates make—based on the facts before them—as to the appropriate disposal for a particular offence. That is assuming that the offence gets before the magistrates and is not dealt with in some summary way, but we will have that debate on another occasion and it may well not be ruled in order in this context.

Comments also touch on the need for confidence in the system in ensuring local and locally accountable solutions. Rainer made the point well in its briefing note:

“Rainer believes that both probation trusts and other providers contracted to carry core offender management should have strong links with the local community, criminal justice  system and particularly the judiciary. Probation Boards are currently required to include board members from amongst local magistrates and local authorities. Rainer believes that such links should be maintained and, indeed, widened to ensure that all agencies that have a core role to play in public protection and reducing reoffending are regularly involved in planning offender management. Trusts should appoint an advisory group composing representatives from key partners”— the note goes on to list them.

I note that the Minister is prepared to consider the concept of an advisory board. There is a need to ensure that there is some sort of direct link with the community. Although the Minister has said that probation trusts are intended to be wider in their viewpoint, they will not necessarily be linked to a specific geographical location. Indeed, they may be encouraged to partner with other probation trusts or to develop certain specialisations that might have wider application.

That said, I still take it from the Minister that, at least currently, the geographical link is intended to be maintained by way of the contractual arrangements. In principle, a particular probation trust may be responsible for probation services in a particular geographical area. Therefore, my hon. Friends and I think that there is a need to maintain some form of established link with the community represented—from within which the probation services are to be provided—to ensure accountability and to ensure that local conditions are properly reflected. Obviously, the most effective way of doing that is to have on the probation trust members of the community, who will reflect its needs and aspirations. That is reflected in amendment No. 27, in which we suggest that a probation trust should be chaired by a judge of the High Court or Crown court to maintain judicial integrity. It also suggests that the remaining members of the board should include at least one of the persons listed—a district judge, a member of the local police authority, a qualified psychiatrist from the local health trust or a member of the local authority.

That is not prescriptive; we are saying not that members should come only from that list but that at least one member should. That would ring-fence a local connection in a probation trust. There is no such latitude in the Bill and all we have had is an indication from the Minister that he will consider setting up some sort of advisory board or link. I am sure that we shall return to the need for a local connection again and again, and I hope that the Minister explains his thinking even if we do not agree on how that connection should be provided.

It is important that members of probation trusts have the widest possible experience of the justice arena and a local community background. Through the amendments we seek to promote such a structure and build confidence in the judiciary, and greater partnership and shared responsibility between agencies and relevant bodies to provide a better service within the framework of the Bill.

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

I want to discuss amendment No. 38, although I will take the opportunity to say that I am sympathetic to the amendments in the name of the hon. and learned Member for Harborough and his hon. Friends, not least because they touch on similar ground.

The amendment addresses the issue of magistrates and local councillors being members of the new bodies. That is important if local connections are to be maintained and confidence in the system is not to be lost. I do not wish to plead a special case for councillors and magistrates, although I confess that some of my best friends are councillors and magistrates. However, naming those two groups would guarantee that important local connections were maintained. The amendment would create a legal obligation for one member of a trust to be a magistrate for the trust’s area and another a local councillor.

Why is the amendment needed? As we know, probation boards have local councillors and magistrates on them, and as the Bill stands the trusts will not. To be fair, the Minister has given every indication that he wishes them to be inclusive and that no section of society should find itself excluded. Nevertheless, guaranteeing the involvement of locally elected representatives and magistrates would be a better way to achieve that objective.

The Home Office says that trusts will primarily be made up of business people. I know that the Minister has said that it is not his intention that they will be people without local connections, appointed from on high and from all over the place, but we must remember that they will not have to come from the local area. Local connections are valuable and we should not be keen to lose them.

It is at least controversial that a probation trust will not be required to include representatives of local businesses or of the wider community who would be in a better position to represent the wishes of the local community. The importance of the local community having faith in the probation services to help with rehabilitation, as I mentioned earlier, cannot be overstated. Does the Minister agree that we need to encourage the local community to engage on a much wider basis than hitherto with ex-prisoners to help in their rehabilitation process and encourage local voluntary groups—churches spring to mind—to get involved in this process if reoffending is to decrease?

Without that involvement, frankly, so much of what we might hope to achieve is simply a wish list. It is vital that those groups are involved if reoffending is to decrease as we all want. We need as many connections to the local community as possible to ensure that provision is community led. It is local people involved in the probation service who understand the needs of the service and who should be able to help form a service in their own area which works according to the needs of the area.

Why councillors and magistrates? We would probably all agree that local councillors, as representatives of their local communities, are best placed to ensure that the views of the local community are heard on the probation board. It seems that that would also create a level of local accountability in the probation trusts similar to that on probation boards. That will encourage the local population’s faith in the trust and encourage co-operation by the local community with the trusts.

Magistrates, as the hon. Member for Hornchurch said a few moments ago, play a central role in this process. We need to be careful to keep them fully involved and to ensure that the courts are not unwilling to give out community sentences. They need to be assured of the success and effectiveness of those community sentences. I should be interested in the Minister’s comments on that.

Finally, the probation service is and always has been linked to the magistrates courts. The service provides reports and information to magistrates and supervises people put on orders. The magistrates have always been a part of the local community and their membership has been drawn as widely and diversely as possible from those communities. Does the Minister therefore agree that it is essential that magistrates continue to have a lead role in the management of the probation service?

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 5:30, 16 Ionawr 2007

I am grateful to the hon. Member for Cheadle for the manner in which he spoke to his amendment. We are all trying to achieve the same objective. It is just a question of how we get there. Of course I agree that we have to involve the widest range of people to tackle reoffending. That goes to the heart of what I want to achieve. I often say that in my time as an MP and as a councillor, I never fully understood the impact of the criminal justice system on people inour communities. It was always someone else’s responsibility. I was concerned about employment, education, health and other major issues. The reality is that offenders are affected by all those issues. We must start seeing offenders for what they are—part of our communities. Offenders come from our communities. It is not someone else’s problem. It has to be tackled by our society and our communities. The reason for moving towards the trusts is to tackle that problem.

Much has been made of our proposed changes to the membership of the trusts. Quite reasonably, concern has been expressed about the size of the trusts and the removal of some of the member requirements. I shall try to demonstrate that those concerns are misplaced. The provisions in schedule 1 relating to the employment of trust members are deliberately designed to allow for flexibility and to afford the trusts greater independence in determining their own requirements. We want the trusts to be able to judge for themselves how they should best be constituted to meet those local needs. We want to be able to appoint the right people for the job, not to have to fill particular categories. That does not mean that we do not attach any value to the expertise that those categories represent. Of coursewe do.

To respond to the hon. Member for Hornchurch on the point about remuneration for members, that would be done as set out in paragraph 5. Members of existing boards are paid attendance allowances, and that will continue for trusts. Board chairs receive annual salaries, and members get pro rata amounts for attendance. Similar arrangements will apply to trusts. It is also intended that there will be continuity of chairs and members, but that the Secretary of State will reserve the right to not appoint if there are outstanding issues. As I said earlier, I am heartened by the high calibre of participants and the range of abilities that was demonstrated when we recruited the new chairs  of boards. The good thing is that there was an overwhelming choice—people wanted to come forward.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

It would be helpful if the Minister were to clarify how many probation trusts he envisages us ending up with. I do not expect him to give us an exact number, but at the moment we have 42 probation boards. I am not clear whether the intention is that, at least initially, each of those boards will transform itself into a trust or whether there will be a significant change in the number at an early stage. The number does matter—a small number means bigger areas, and that in turn has implications for local representation and local accountability, which becomes more and more difficult the bigger the area that the trust has to cover. For instance, it would be enormously difficult to try to have representation across the whole of London.

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

I understand my hon. Friend’s point. We have no magic figure in our heads about the number of trusts. I have also said that if all the boards want to become trusts and they meet the criteria that we are going to develop on consultation, we will be happy. That is why we do not want to restrict the make-up of the trusts by prescribing who can or cannot sit on them. It might help my hon. Friend if I go through the amendments; then he can see how he feels about my explanation.

Paragraph 3 states:

“A probation trust shall consist of a chairman and not less than four other members appointed by the Secretary of State; and the chief executive”,

and amendment No. 7 proposes increasing “four” to “five”. As I said, there is no science underlying the proposed figure. I fully accept that in many, perhaps most, cases, trusts will need to have more members than that. We are merely setting a minimum. Our intention is to allow the size of the trust to match the work that it will carry out, and to adapt to any change that might occur over time. In practice, it is likely that the trusts will have more than the minimum number of members, but they will not be required to do so if that is not necessary. Having too many members would increase costs and slow down decision making. The key point is that the number for an individual trust will be a policy matter to be agreed between the chair and the Secretary of State. It is worth noting that 36 of the current 42 probation boards have sought to reduce board membership as a result of the opportunities that exist under recent changes.

Amendment No. 27 proposes that the trust chairman should be a judge of the High Court or the Crown court. Boards already have a close relationship with the judiciary, which is valuable and needs to be maintained, but requiring judicial members to sit on trusts is not the right way to do that.

In October 2005, we published a consultation paper seeking views on our proposals to enable other providers to deliver probation services and to create probation trusts. In response, even those members of the judiciary who expressed concern about our proposals acknowledged that in a world of multiple  providers it would not be appropriate for judges to be appointed to probation trusts. It would be particularly inappropriate for them to chair trusts; indeed, I doubt that many of them would have the time or the inclination to take on such a role.

Photo of Rob Flello Rob Flello PPS (Rt Hon Lord Falconer of Thoroton QC, Secretary of State), Department for Constitutional Affairs

Does my hon. Friend agree that a couple of the positions on a board of this nature should be taken by housing experts, given the connection between housing and offending, or by drug experts, given the connection with drug misuse? Those are the sort of people who should be welcomed on to such boards.

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

I entirely agree with my hon. Friend. That goes to the heart of the point that we were discussing last Thursday—where do we stop when it comes to saying who has to be on the board? I certainly see the bodies that he mentioned being represented as a crucial element of resolving the problems that we face. That gives me an opportunity, because I forgot this morning to answer a point that the hon. Member for Hornchurch made about the involvement of the learning and skills councils in the education service. He will be pleased to know that more than 10 per cent. of adults who gain basic skills gain them in prison, which is a useful statistic about what goes on in our prisons. Employment on release from prison is up by 10 per cent. from 10 years ago to 37 per cent. A new service called the Offender Learning and Skills Service—OLASS—has been established and probation boards are represented on local commissioning boards that operate in that area.

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

I am grateful to the Minister for coming back on that point. The clarification that I sought was about the joint commissioning and the seamless service that would need to be provided given what he has said about the importance of basic skills, improving rehabilitation and reintroducing offenders back into the community.

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

There would clearly be a crucial role for the commissioners in helping offenders to stop reoffending through the educational skills that they need. The commissioner would have to consider that and I am sure that local discussions would take place with local bodies.

I want to nail the issue of local support and approval. Yes, the commissioners are regional offender managers, but, as I have already pointed out, in the duties that forthcoming local government legislation places on the probation service for local area agreements, we wanted to avoid the duplication and further development of the number of bodies that consider those issues. It is entirely sensible to concentrate on the existing structures, such as the local strategic partnerships and the local area agreements. We have already set up the crime and disorder reduction partnerships and we have the local criminal justice boards. There is a great deal of local representation on all those, and that would be the route by which we would try to achieve the best outcomes in offender management.

I also talked about the links between NOMS and sentencing, which will remain vital. We are creating local forums for sentencers, NOMS and probation providers to discuss all the issues of local concern. Regional commissioners will have links with sentencers at a regional level via protocols that will inform decisions about which services are commissioned. Amendment No. 8 states that in addition to a chairman and a chief executive, the five or more other members of a trust should also include a magistrate. Amendment No. 39 would add a local councillor to that requirement. As I said, I have many friends who are local councillors. Amendment No. 27 goes on to propose that other members of a trust should include at least one of a district judge, a member of a police authority, a psychiatrist or a member of the local authority. Individuals from all those categories are likely to have something to offer, but so may many others, as my hon. Friend the Member for Stoke-on-Trent, South pointed out.

We believe that we need the freedom to be able to appoint individuals on the basis of their skills and expertise and on how they relate to the needs of a trust at any given time. Even today the needs of boards differ according to their size or location. That variation may increase in future and we need to be able to respond accordingly. The recruitment exercises to replace members of the probation boards are showing diversity in the skills offered by applicants.

Amendment No. 27 would also require that as far as possible members should be representative of the local population. We remain committed to diversity in the selection of trust members and have a good record in that area. In 2000, Her Majesty’s inspectorate of probation carried out a thematic inspection of race equality in the probation service and the follow-up report in 2004 noted that 16 per cent. of probation board members came from a minority ethnic background. We do not believe that we need any additional legislation to maintain that record, and it is hard to see in practical terms how what is envisaged in the amendment would help. That amendment and others add nothing of substance to the Bill or they add inappropriate restrictions that would hinder, rather than support, the effectiveness of public sector providers. I therefore hope that the hon. Member for Hornchurch will ask leave to withdraw the amendment.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 5:45, 16 Ionawr 2007

This has been a helpful and informative debate, which has re-emphasised the need for good community and local links to probation trusts to ensure that they properly reflect their communities, giving them the best opportunity to rehabilitate offenders and to provide services that take account of local conditions and the wishes of the local community.

A number of interesting points have been made in the debate. I take on board the need for representation to be as wide as possible and for the Committee to consider the issue more generally. The intervention by the hon. Member for Stoke-on-Trent, South was helpful in reminding us of the issues that offenders must address if they are to turn their lives around. Often their dysfunctional lifestyle, a lack of family support, a lack of housing, mental health problems, drug problems or other issues in their background lead   to criminal behaviour or are a factor in that behaviour. I want the probation trusts to have a greater involvement with those sorts of issues, if they are subsequently established within the framework in the Bill.

That does not rule out the opportunity to be more specific in respect of certain requirements that would be expected of probation trusts. The Minister is clearly not persuaded by the argument for including a more formal structure in the schedule. I will reflect on what he has said and consider what further action may be taken to establish an advisory relationship alongside a probation trust. We will think about whether it would provide a sufficient connection to make or preserve local links and ensure that services are delivered in the way in which we would expect. As we discussed this morning, local authorities have a key role.

The Minister talked about local strategic partnerships, CDRPs and local area agreements between various central and local governmental agencies to ensure that improvements are made in key indicators and outcomes. That framework must be considered in terms of the structure of the probation trusts and their membership.

The Minister has referred to regional offender managers. Again, he made a plaintive request that we believe that this is not a top-down approach and that it is about local delivery. Again, I have heard what he has said, but he will not be too surprised to learn that I have not been persuaded by his arguments. However, in the context of what he has said about a further review of this particular aspect of the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

I beg to move amendment No. 35, in schedule 1, page 23, line 15, leave out

‘are for the Trust to determine’ and insert

‘shall be determined by the Secretary of State’.

Photo of Peter Atkinson Peter Atkinson Ceidwadwyr, Hexham

With this it will be convenient to discuss amendment No. 36, in schedule 1, page 23, leave out lines 22 to 29.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

The amendments concern the part of the schedule that deals with the terms of employment and pay of the people who will work for the probation trusts. Paragraph 7(2) states that the terms of employment of any employees are for the trusts to determine, which will inevitably lead to variations in employment between different trusts. Paragraph 8 contains a caveat that pay, pension and other allowances will require the approval of the Secretary of State. A further caveat allows the Secretary of State to decide not to use that power. The effect will be the disappearance of national collective bargaining on pay and conditions, which has been in place in the probation service for more than 60 years. Instead, we will end up with multiple providers and multiple negotiations over conditions of service, which is not a recipe for a service that will operate well.

I have seen something similar happen in my previous area of employment, when further education colleges, which used to be subject to national collective bargaining under the control of local education  authorities, became independent corporations. The effect has been to break down national negotiations over a number of years, which has led to varying terms and conditions in different institutions. That approach does not work well, and multiple negotiations do not help. It is not only the 42 probation trusts that will be affected, because there will be multiple other providers, too. As negotiations on pay and conditions are broken down into smaller and smaller units, there will inevitably be employers who are poor at negotiating. I have seen it happen: the result is unnecessary disputes, because some of the people conducting the negotiations do not have a clue what they are doing. I am concerned that we are going down that route.

Photo of Rob Flello Rob Flello PPS (Rt Hon Lord Falconer of Thoroton QC, Secretary of State), Department for Constitutional Affairs

Does my hon. Friend share my concern that, in an area such as my constituency, where wages are below the average for the wider west midlands, officers who are doing exactly the same job as those in other parts of the country will be paid considerably less, despite the fact that they are equally professional and good at their job?

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

The concern is that we will move in that direction. If staff are transferred from one provider to another when a new provider comes in, they will have the protection of TUPE. There are also the two-tier work force regulations, so there is some protection to help people who are transferred. It is not only a question of what happens in the initial stages, but of what happens in the longer term as new providers come in which are not simply transferring staff from the existing national service. All the evidence from the experience of the Prison Service is that the terms and conditions for staff in private prisons are significantly lower than in the public sector. It is a question of not only pay, but conditions—the Bill specifically mentions pensions and allowances.

What will happen to people’s career development? A national structure, as now, certainly helps if a probation officer moves from one area to another. Continuity of service and how that counts towards pay, grades or pensions, or how that relates to service entitlements such as annual leave, are not at issue. That is all simple and straightforward with a national structure and with the national professional career structure that follows from that. The fragmentation of that national structure, which will be the consequence of the schedule as it stands, is going to cause problems.

At the moment, the staffing levels of the national probation service are currently about 21,000, which is a relatively small number of people to negotiate on a collective bargaining basis. If we split that 42 ways or more, in some cases we will have a very small number of people negotiating about pay and conditions, which I do not see working. That will cause problems. The NOMS briefings issued by the Home Office state that there are no plans to move away from collective bargaining, but they specifically do not mention national collective bargaining. There is an important difference between “collective bargaining” and “national collective bargaining”.

I do not understand the need for sub-paragraphs (2) and (3) of paragraph 8. The provision in sub-paragraph (1) that the determination of the terms of employment—remuneration, pensions, allowances—

“requires the approval of the Secretary of State” seems to be there as a safeguard, which should ensure that an individual provider is not able to shift pay and conditions a long way from the norm, particularly not downwards, which would be the obvious fear. However, the rest of paragraph 8 then gives the Secretary of State the power to ignore that. He can just say that, for the time being, he will decide that that will not apply. He might decide that that is not going to apply to an individual trust or even across the board. In what circumstances does the Minister think that he might wish to do away with any safeguards that he is putting in place on pay and conditions, which is the total effect of paragraph 8?

That is the almost inevitable consequence of the fragmentation that we are likely to see, if the Bill goes through in its present form. If we end up with large numbers of relatively small providers in the business, particularly in the private sector, then ensuring that national collective bargaining, national pay rates and national terms and conditions apply will be very difficult. We do not want to see a situation where two people doing identical jobs, maybe just a few miles apart, are on completely different terms and conditions of work, pay and pensions. That is where the schedule will lead us, if it stays as it is. I hope that my hon. Friend the Minister will reconsider it and explain why he believes it necessary to take away the safeguard of requiring the Secretary of State’s approval of pay, pensions and allowances, which will be an important issue for people who might wish to work in the service.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 6:00, 16 Ionawr 2007

I rise to speak briefly on the amendments. I heard clearly what the hon. Member for Walthamstow said, and the Minister might be interested to know that I do not particularly want to dwell on the private grief on the Government side of the Committee.

My normal criticism of the Government’s top-down approach might not be so appropriate in this case, given that the schedule provides some discretion at local level. If the Minister is going down the dynamic, competitive route of promoting innovation in services and their delivery, the probation trusts, even if they are intended to compete against each other, will need flexibility in relation to the manner in which they operate if that model is to be effective.

On career development, a relevant question is how standards will be maintained in the system through training. The Minister addressed the importance of that this morning and said that the contractual framework would ensure certain standards of training and provisions on meeting the cost of training. When we discuss the designation of officers of providers of probation services under clause 6, we will ask how that will be measured and what standing the individuals in question will need to have. My concerns about the standards to be applied may well be dealt with then.

I will listen with interest to the Minister’s response and see whether he is able to square the circle of the points raised by his hon. Friends.

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

I am grateful to my hon. Friend the Member for Walthamstow for raising serious points. I know that he will accept that the present Government have done more for the protection of employment rights than any previous Government. Prior to my role in the Home Office, I was happy to be the Minister responsible for employment relations and rights and employees’ terms and conditions. In fact, I have had some interesting ministerial roles: I was also the Competition Minister, so I fully understand competition. We part company from the official Opposition because they believe in the free market whereas we believe in fair markets and in establishing rules and regulations that create fair market conditions.

My hon. Friend paints a picture of doom and gloom. Are we engaged in a race to the bottom? Are the proposals about devaluing the role of probation officers and providers, getting things on the cheap and thereby affecting the quality of the service? I say to him that they are not. I said earlier that I fully understand the role of the trade unions and their desire to protect their members’ terms and conditions.

Paragraphs 7 and 8 of the schedule deal with the arrangements for trusts to employ staff. Paragraph 7 states that the terms of employment

“are for the trust to determine.”

Paragraph 8 allows but, importantly, does not require the Secretary of State to approve the terms of employment determined by trusts. AmendmentsNos. 35 and 36 would restrict that flexibility by requiring the Secretary of State to determine terms of employment. The current provisions in schedule 1 are designed to allow flexibility for the long term and to leave sufficient room for manoeuvre to respond to circumstances that we cannot yet foresee. I believe we should never say never, so we should not rule out for all time the possibility of trusts determining their own pay and conditions at some point in the future. If, at that point, it becomes appropriate for trusts to set their own pay levels, surely it would be wrong if primary legislation prevented that from happening.

However, I assure my hon. Friend that that is not what we have in mind. We do not think it is appropriate for individual trusts to set their own terms and we have no plans to change the current arrangements whereby pay, terms and conditions are negotiated nationally. I hope my hon. Friend will agree that the provision is sensible. I acknowledge the seriousness of the issues he raises, but it would be wrong to prevent us from ever taking that opportunity. There are currently no plans to do so. I know from the strength of representations from the trade unions involved that they would resist the Government if our intention was to go down that route—but it is not.

As I have said, my hope is that the public sector will rise to the challenge and that the probation trusts will be public sector-led, but in the spirit of trying to be dynamic and to open up the opportunities in the Bill, I hope that my hon. Friend will accept my assurances and withdraw the amendment.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

The Minister has made some helpful comments about there being no plans to change the current arrangements on national negotiation. As far as I can see from the schedule, that would apply to pay   and pensions and so on, but not necessarily to other terms of employment. Paragraph 7(2) states specifically that

“The terms of employment ... are for the trust to determine”.

Although the Minister has gone some way in dealing with pay and pensions, he may not have dealt with some of the other aspects.

I am not predicting a race to the bottom. Some of the people involved in probation boards now, who may well be involved in probation trusts in future, are not unreasonable people who would behave irresponsibly, but the more fragmented the system becomes, the more likely it is that somebody, somewhere—a trust or employer—will see the provision as a way of driving conditions down.

The word “flexibility” always worries me; almost every time it is used, it seems to indicate that something nasty that I would prefer not to happen will happen. The Minister said the measure may be used “at some point in the future”. I hope we do not get to that point, because it will not be a particularly efficient way of dealing with pay, pensions or that sort of issue. To have multiple negotiations with multiple providers does not seem the right way to go. When that has happened in other places, it seems to have led to completely unnecessary disputes that could have been sorted out if the matter had been dealt with at regional or national level.

I accept the assurance that the Minister gives about there being no plans to change the present position. I do not wish to press my amendment to a vote at this time, but will think again about whether we might wish raise the matter on Report. For the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 9, in schedule 1, page 25, line 1, leave out sub-paragraph (3).

We now move on to paragraph 14 of schedule 1, on the duty to comply with directions. Paragraph 14 states that

“A probation trust must comply with any general or specific directions given to it—”

Photo of Peter Atkinson Peter Atkinson Ceidwadwyr, Hexham

Order. I am a little confused. Is the hon. Gentleman talking about amendment No. 9? He seems to be talking about amendment No. 10.

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

Thank you, Mr. Atkinson. Amendment No. 9 would remove sub-paragraph (3) of paragraph 14, which is the paragraph I was quoting. I hope that I can explain the relevance of what I was saying in the context of that sub-paragraph. Paragraph 14 starts:

“(1) A probation trust must comply with any general or specific directions given to it by the Secretary of State”.

It continues:

(2) In particular, a probation trust must provide the Secretary of State with any information relating to the performance of its activities”.

Sub-paragraph (3) states:

“Different directions may be given under this paragraph for different purposes and in relation to different probation trusts.”

Amendment No. 9 would delete that sub-paragraph.It is a probing amendment to give us a better understanding of how paragraph 14 will operate as it seems to state that different directions may be given to different probation trusts for different purposes. How will compliance with general requirements fit in? If there is a general requirement for a probation trust to act in a particular way, it seems strange that under sub-paragraph (3) certain probation trusts might not be required to comply with that more general requirement. In what circumstances might some sort of waiver or exclusion be appropriate?

There is a general point in relation to paragraph 14 and the power relating to general or specific compliance by a probation trust. There may be circumstances in which there are separate contracting arrangements that may sit below the probation trust. For example is it envisaged that the Secretary of State could order that a particular subcontractor’s contract be terminated? What would happen in those circumstances in relation to any potential liabilities or damages that may accrue? That sort of exclusion may be what was intended in sub-paragraph (3). Some sort of confirmation of the intent of paragraph 14 and the exclusions that might apply is needed.

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

I rise to speak only briefly on amendment No. 9. I support the argument made by the hon. Member for Hornchurch. The crux of the matter is found in what could be considered to be a fairly vacuous phrase:

“Different directions may be given under this paragraph for different purposes and in relation to different probation trusts.”

In effect, that means that the Secretary of State can act differently with different trusts, as he sees fit. I, too, look forward to hearing the Minister’s comments. The key issue, at least for some of us, is the amount of power that we invest in the Secretary of State. We may not always be as fortunate as we are now with the occupant of that office.

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs) 6:15, 16 Ionawr 2007

I thought that the hon. Gentleman would recognise that I was being ironic. There is an important issue about not just considering legislation in the context of the here and now, and the current occupants of such offices, but being aware of other possibilities in future. For that reason, and because too much power is already vested in the Secretary of State—with little indication of counterbalance by way of public accountability, as was said earlier—it is important that the Minister gives serious consideration to the amendment. I look forward to hearing what he has to say about it.

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

I do not know whether it is the time of day, but hon. Members are becoming more suspicious of the powers of the Secretary of State. I hope to reassure them that those are entirely appropriate.

As the hon. Member for Hornchurch said, paragraph 14(1) of schedule 1 requires a probation trust to

“comply with any general or specific directions given to it by the Secretary of State in connection with the carrying on of any of its activities.”

Paragraph 14(3) states that different directions may be given for different purposes and in relation to different trusts.

Although the wording is slightly different, the effect of that paragraph is the same as that of existing legislation, as applied to local boards in paragraph 14 of schedule 1 of the Criminal Justice and Court Services Act 2000, so there is nothing new at all in what we propose. Paragraph 14 does not restrict the types of direction that might be issued, but sub-paragraph (2) gives an example of what we have in mind, namely directions requiring a trust to provide information relating to its performance. The effect of the amendment will be to cast doubt on the ability of the Secretary of State to issue different directions to different trusts for different purposes.

As I have indicated, that will be more restrictive than the existing law, and it will be particularly inappropriate for a future world in which there is likely to be greater diversity between trusts and a greater need for different directions to be issued. At the outset, we expect to treat all the trusts the same, but that might not always be the case. For example, in future, not all trusts will necessarily deliver the same range of services, so if a particular direction is relevant to only one area of service provision, it will be pointless to issue it on a blanket basis to all trusts. We might, in due course, decide to allow some trusts that are performing particularly well greater autonomy than others. We have no specific plans in that regard at the moment, but it would be foolish to rule out such flexibility for the future.

We need to strike a balance between retaining appropriate controls over what will continue to be public sector bodies and avoiding excessive bureaucracy and unnecessary interference from the centre. The appropriate balance may evolve over time and in different ways for different trusts. I hope that hon. Members will accept the need for flexibility, that they will believe that there is no need to be so suspicious and that they will not press their amendments.

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

I hear the Minister’s counsel not to be suspicious, but if we are to do our jobs, it is appropriate for those on this side of the Committee to be suspicious of powers that are vested in the Secretary of State. We have already debated this afternoon the greater control and the focus on what we see as the top-down approach, with more power being ceded to and vested in the Secretary of State. That always makes me suspicious, whatever the context in which it arises.

I note the Minister’s comments on the amendment. It is important that reporting is done, and that information on compliance with contractual provisions and performance criteria that might be applied to a particular probation trust are provided in a timely and appropriate fashion, given that we all agree that the protection of the public has to be a paramount requirement, and that it is appropriate in certain circumstances for the Secretary of State to require that information be provided to ensure that a fundamental underpinning obligation is being appropriately and  adequately met. In the context of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendmentNo. 10, in schedule 1, page 25, line 2, at end add—

‘( ) A probation trust must comply with the duties set out in sections 10 and 11 of the Children Act 2004 (c. 81)’.

The amendment is intended to re-emphasise the importance of compliance in the Children Act 2004. Probation boards are included under section 10, which places a duty on agencies that provide services for children to co-operate with local children’s trust arrangements to improve the well-being of the children and young people in the relevant local authority’s area. Section 11 places duties on specific agencies, including probation boards, to ensure that they discharge their services

“having regard to the need to safeguard and promote the welfare of children”.

That point has been highlighted by the Standing Committee for Youth Justice. In its view, it is vital that those duties are effectively transferred to the new probation trusts.

The amendment is intended to elicit greater information and clarification on the specific obligations and requirements in the 2004 Act that the probation boards currently meet and comply with. Perhaps that needs to be examined in the context of the Act itself; an amendment to it might be required to reflect the changed situation and the arrangements contemplated in this Bill.

In any event, the protection of children is an extremely important aspect of what is before us. As we have heard, education is key, but public protection of children at risk, who may be in vulnerable situations, is also extremely important. The Committee should restate that this afternoon. It is imperative that the Minister state the situation to ensure that nothing will be lost and that the obligations and requirements of the 2004 Act will be maintained, adhered to and followed through, whatever arrangements we end up with as a result of our consideration of the Bill.

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

I want to say a few words about the amendment, although most of the ground has been covered by the hon. Gentleman. I want to talk from my own perspective about the amendment’s importance and what it is designed to achieve. We have heard several times about the importance of protecting children, which is crucial to what we are trying to do. However, the amendment would place a duty on probation trusts to co-operate with local children’s trust arrangements as set out under section 10 of the 2004 Act and to ensure that they discharge their services with regard to the need to “safeguard and promote” the welfare of children under section 11.

As we know, that includes co-operation with the local authority, its relevant partners and other agencies that conduct any work relating to children—a district council, police authority, youth offending team, strategic health authority, primary care trust, learning and skills council and other bodies that provide services under section 114 of the Learning and Skills Act 2000.

There are five important considerations: the physical and mental health of the individuals and their emotional well-being; protection from harm and neglect; education, training and recreation; the contribution made by them to society; and finally, social and economic well-being. I am sure that the Minister will want to address such concerns in his response.

Why is the amendment needed? Probation boards were included in sections 10 and 11 of the 2004 Act as agencies that provide services to children. They therefore need to co-operate with the local children’s trust arrangements. That duty needs to be transferred to the probation trusts so that they can effectively co-operate with the agencies to ensure that the care and management of young offenders is co-ordinated and is consistent with their services in other areas. That will help to create good end-to-end management, which I know that hon. Members from all parties agree is important, especially when children come into contact with many different agencies through schools, care homes and the like. It is important that those groups have the necessary information to ensure that the well-being of the child is looked after consistently.

Co-operation also includes transferring information between the different agencies and organisations. Both that and the joined-up projects between Government agencies could help to stop young people, especially those in care, from getting into trouble to start with. It would certainly help with rehabilitating young offenders back into the community. I look forward to the Minister’s comments on those concerns.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

May I preface my remarks by thanking the hon. Members for Hornchurch and for Cheadle for their points? They are extremely important and there is no division in the Committee when we talk about the importance of the Bill leading to greater public protection. When we start to talk about the protection of children in particular, it becomes even more real to us all. I thought that the way in which the hon. Gentlemen made their points added to the consideration of the Bill by the Committee. From the perspective of the Government, there is no difference between any of us on the point. We expect to see sections 10 and 11 of the Children Act 2004 applied as rigorously and as fully as they are at present to the whole range of operation of any new system.

I want to make some remarks with specific reference to the amendment. The references to local probation boards in the 2004 Act are just two examples of many references to local probation boards throughout the statute book. Many of those references place duties on local probation boards to carry out certain functions, and often they concern joint working with criminal justice and other statutory agencies. Let me make it clear, as I said at the beginning, that we remain committed to maintaining the position of probation in all those areas. We recognise that all the statutory references will need to be updated to take account of the fact that probation boards will ultimately cease to exist. However, the way to do that is not simply to place on probation trusts the requirements that apply to probation boards, which is the effect of the amendment.

We need, too—I hope that the hon. Gentlemen will accept this—to take account of the fact that in future probation trusts will work alongside other providers to whom those statutory provisions might also need to apply. Although a consequential amendment is therefore necessary to sections 10 and 11 of the Children Act, I do not think that that needs to be set out in the Bill in this way. In due course we will table a consequential amendment to ensure that the relevant duties continue to apply when probation boards cease to exist. In light of my comments, I hope that the hon. Member for Hornchurch will feel able to withdraw his amendment.

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

I thank the Minister for the manner in which he has responded to the amendment and for his reassurance that the issues will remain a high priority in how services are undertaken, whoever they might subsequently be carried out by. The Minister made the point that the arrangements could lead to other providers becoming involved in service provision. We need to contemplate that point. His point about the amendment is fair and justified, and we will review the amendment that the Minister has promised to table on the matter. On the basis of that commitment and because our amendment does not properly address the wider aspects discussed in this debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the First schedule to the Bill.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 6:30, 16 Ionawr 2007

Before we leave the schedule, I would appreciate clarification on a few technical points. Paragraph 1(1) states:

“A probation trust is a body corporate.”

I assume that it is intended to establish the probation trusts as companies limited by guarantee rather than as any other corporate structure, but I would appreciate the Minister’s confirmation of that point.

Paragraph 1(2) states:

“The name of the trust is that specified in the order establishing it.”

Will the Minister consider tabling an amendment to include any subsequent order amending it? Clause 4(1)(b) states that the Secretary of State

“may by order...establish a probation trust for purposes specified in the order”,

so in those circumstances, the name would be as stated in the subsequent order rather than in the establishing order.

Paragraph 2 states:

“A probation trust is not to be regarded as the servant or agent of the Crown”.

The Minister might recall, although maybe notwith fondness, our discussions on the Corporate Manslaughter and Corporate Homicide Bill. I would be grateful if he were to confirm the status of probation trusts under that Bill and in connection with any associated liability.

Paragraph 4 deals with the removal of an appointed member. It would be helpful for the Committee if the Minister were to clarify the circumstances envisagedfor the removal of a member, so that it would not be done peremptorily or unreasonably, given that those members’ functions might sometimes include raising issues about the maintenance of probation services, which might make Ministers or the Government uncomfortable. We need to ensure openness and dialogue without fear of removal.

I come to paragraphs 6(2) and 8. We have debated general employees, but in connection with the chief executive, probation trusts might have issues attracting suitable members and executives to drive them forward. Particularly if we enter a competitive and dynamic situation in which other providers try to muscle in on the market, it is important not to leave probation trusts at a competitive disadvantage by allowing the Secretary of State to refuse certain arrangements. Some clarification on the specific issue of chief executives in addition to our wider debate on general employees would be helpful.

Paragraph 12(2) states that a probation trust “may not hold land”. Will the Minister confirm that that includes land in its broadest sense, and that the provision is in no way intended to fetter the probation trust’s ability to hold leases, to have other holdings, to provide its services from such properties or, indeed, to have offices at such properties? The paragraph mentions managing “land held by another”, but I would appreciate clarification to ensure that that will not be an unnecessary fetter.

Is the statement of accounts required by paragraph 13(1)(b) the same—assuming that the probation trust is a company limited by guarantee and established under the Companies Acts—as the requirement to file accounts? Will the accounts be one and the same, or will two separate sets be prepared on a different basis? If there is to be duplication, why is it necessary? And will there be a requirement for a separate financial statement to be audited, as later paragraphs of the schedule suggest?

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

I am grateful to the hon. Gentleman for asking those questions about this schedule, which goes to the core of the Bill. He is quite right to do so, and I shall do my best to answer his questions. If I miss any, I shall ensure that he gets the answers in writing.

On the hon. Gentleman’s first point on probation trusts as corporate bodies, it is clear that trusts will not be companies limited by guarantee. They will be normal bodies corporate, with no change from the legal status of the current boards. Most of the schedule is based on existing legislation, and many of his questions are covered by those provisions. The key difference is that we are seeking greater flexibility to give the trusts greater independence from the centre. He keeps saying that it will be a top-down system, but we are trying to give trusts the flexibility and freedom to do a good job.

I am pleased that the hon. Gentleman has recognised that we are the first Government to move on Crown immunity, and the probation trusts will be covered by the provisions on the Crown acting as employer, which he will remember from the discussions on the Corporate Manslaughter and Corporate Homicide  Bill. They will be in the same position as any other Government service. The holding of land will be the same as it is now—as one would expect, trusts will not be prevented from holding leases.

I wish to spend some time discussing the role of the chief executive, because the hon. Gentleman made a fair point in saying that there will be a change in line management and the relationship with the chief officer. Both the chiefs and chairs of the probation boards will be appointed by the Secretary of State, which will create a lack of clarity about the lines of accountability and the relationship between the chief and the chair. As the hon. Gentleman has said, paragraph 6 provides for the chief executive to be appointed by the trust itself, which will clarify accountability and give the trust greater independence to run its own affairs.

Paragraph 6(3) makes a transitional provision by allowing, though not requiring, the appointment of the first chief executive of a trust to be made by the Secretary of State. That will facilitate a smooth transition between board and trust status, so that an existing chief executive can be transferred from one to the other without a fresh appointment round. Once appointed, whether by the Secretary of State or the trust, the chief executive will become a full member of the trust and provide an executive presence on the governing body. His employment status will remain  different from that of members appointed by the Secretary of State, who will retain the power to determine the chief executive’s terms and conditions and to dismiss him, if appropriate.

The removal of members will be by a procedure similar to the current one. It will be about removing not people who disagree but those who act inappropriately. As one would expect, there are clear procedures in place for people to be removed and to have the opportunity to appeal. The chief’s employment status in that regard will be the same as that of other staff. The schedule gives us an opportunity to create flexibility, but it does not stray too far from the principles agreed in the 2000 Act.

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

I rise briefly to add that I asked a couple more questions on accounts and the names of the trusts, but I take on board what the Minister has said about sending me a letter on those points.

Question put and agreed to.

Schedule 1 agreed to.

Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at twenty minutes to Seven o’clock till Thursday 18 January at Nine o’clock.