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Local Probation Boards (Appointment and Miscellaneous Provisions) (Amendment) Regulations 2006

Volume 686: debated on Friday 3 November 2006

rose to move, That this House regrets the proposals set out in theLocal Probation Boards (Appointment and Miscellaneous Provisions) (Amendment) Regulations 2006 (S.I. 2006/2664) and calls upon Her Majesty’s Government to withdraw the statutory instrument and to enable consideration of the proposals contained in it by each House of Parliament in the context of primary legislation on the management of offenders [46th Report from the Merits Committee].

The noble Baroness said: My Lords, I do not support the proposals that the Government have set out in the local probation boards SI. It would be better for our criminal justice system if the Government withdrew them today so that both Houses can debate them constructively and effectively within the context of our forthcoming scrutiny of the Management of Offenders and Sentencing Bill.

These regulations are due to come into force on1 November—well, they have. That shows a measure of the problem for this House in scrutinising legislation and negative instruments when they are already law. They will significantly change the membership and governance of the 42 local probation boards in England and Wales. Yet when the Explanatory Memorandum to the statutory instrument was first published, it was opaque to the extent that it was misleading. That was poor practice.

The report of the Merits of Statutory Instruments Committee states that the memorandum gave no adequate explanation for the changes or how they would affect the rehabilitation of offenders and the service provided to the community. The committee therefore asked for better information. It is only as a result of their work that we have been provided with the supplementary information given by the Home Office to the committee. As a result of scrutinising that, I still do not believe that the Home Office has yet made a case for the regulations before us today.

The boards are a comparatively recent innovation, established by the Criminal Justice and Court Services Act 2000. Yet the Government now wish to rip them up and start again, without even carrying out any evaluation of the existing governance, as far as I can see. If they have, where is it? Why has Parliament not been allowed to see it?

In addition, there has been no formal public consultation exercise. Why? Because the Home Office says:

“we did not consider that one was required for this Statutory Instrument”.

The Home Office was wrong. They should have carried out an effective consultation on what constitutes a significant policy change.

Why make these changes now? If the Government intend to abolish the boards anyway as part of the National Offender Management Service Bill reorganisation, why not wait until that has been properly scrutinised by Parliament. What are they afraid of that makes them act with this haste?

At present, each probation board has up to15 members comprising a chair, the chief officer, a judge appointed by the Lord Chancellor, and 12 other members, of whom four, where practicable, should be magistrates and two elected members of a local authority. The quorum is seven. They were created to provide local accountability through the agreementof strategic objectives and the monitoring of performance.

The regulations make three main changes, all of which are unnecessary and will damage the quality of work carried out by the boards. First, the quorum will be reduced to five, allowing smaller boards to beput in place. Since 2001, probation has beenmoving towards increased local involvement with communities and the boards have drawn membership from a wide cross-section of the population. That has been beneficial. Therefore, it is obvious that if the Government now reduce that representation that must have a negative effect on the level and scope of local involvement.

The Government say that the new boards will be seen as businesses. What exactly do they meanby this? Many current members have extensive experience in private sector business, but they recognise that while they must run their services in a business-like fashion, when it comes to running a justice agency, many decisions are simply not primarily business decisions.

Secondly, it is intended that it will no longer be necessary for four members to be magistrates, but the primary customer of the service is the local courts, so that is also a retrograde step. Magistrates sentence on behalf of very local populations. I note that the Magistrates' Association is opposed to that change. I have read the letter that John Thornhill, chairman of the Judicial Policy and Practice Committee, sentto Richard Cullen at the National Probation Directorate. Mr Thornhill wrote:

“we are all dismayed at the suggested changes to the SI and bewildered at the suggestion within the context of stressing how much magistrate membership of Probation Boards is welcomed and valued”.

Thirdly, it is intended that two local authority members will no longer be necessary. Partnerships with the local police and local authority are at the heart of modern probation practice. It is increasingly necessary for close liaison, joint funding and joint planning through local area agreements. So it is not surprising that that change is opposed by the Local Government Association. Councillor Hazel Harding, chair of the LGA Safer Communities Board, wrote to Mr Cullen to express its opposition to it. She points out:

“Councillor members of Probation Boards are essential because they provide local accountability and strengthen partnership working, as well as bringing a range of skills from their experiences as councillors and their diverse professional backgrounds...Removing the requirement for councillor representation on local Probation Boards runs contrary to the recognition given by other parts of the HO of the need for local political leadership on crime and disorder matters”.

We have just witnessed that very focus from the Home Office in our discussion of the Police and Justice Bill, which has now successfully gone through this House. There, the Government drew back from some changes. They have reinstated magistrates as of right on police authorities and, at the request of the Association of Police Authorities, retained the authority of police authorities to make their own appointments. So there is recognition in other parts of the Home Office of the value of magistrates, local authorities and local councillors, yet here, we see the reverse happening.

The regulations will weaken local involvement in criminal justice, begin the process of centralising probation governance on Whitehall and remove the critical local partners on whom effective work with offenders depends. It will do all that even before Parliament has the chance to consider the proposals in the NOMS Bill—a rather inelegant title—which we expect to be published by the end of this month. It is wrong of the Government to take action to pre-empt that debate. The Government should think again. They should withdraw the order, engage in proper consultation, and listen to the views of Parliament when we debate the legislation in November, December, or whenever it reaches Parliament. Then and only then should they bring forward proposals to alter the structure and character of probation boards. I beg to move.

Moved, That this House regrets the proposals set out in the Local Probation Boards (Appointment and Miscellaneous Provisions) (Amendment) Regulations 2006 (S.I. 2006/2664) and calls upon Her Majesty’s Government to withdraw the statutory instrument and to enable consideration of the proposals contained in it by each House of Parliament in the context of primary legislation on the management of offenders [46th Report from the Merits Committee].—(Baroness Anelay of St Johns.)

My Lords, this is the second time within a week that proposals have been put before us that have been introduced with minimal consultation that is far short of what is required by the Cabinet Office code of practice on consultation.

The National Probation Directorate said in its response to the Merits Committee’s questions on the subject that it did not think that a formal public consultation was required, but it consulted informally a number of boards and board members. It does not appear to have consulted the Probation Boards’ Association, the Magistrates’ Association, the Local Government Association, NACRO and any other major organisation that is concerned with probation and its future. The Probation Boards’ Association has said that the regulations,

“will weaken local involvement in criminal justice, begin the process of centralising probation governance on Whitehall and remove the critical local partners on whom effective work with offenders depends”.

When the Government know that proposals they are going to introduce are controversial, it is only too easy for them to avoid criticism by picking a few consultees who can be cajoled into giving the right answers, while ignoring the leading players. I therefore suggest that there should be Cabinet Office guidance on these pseudo-consultations to ensure that the department at least asks for the official views of the organisations representing the persons or bodies principally concerned. I would be grateful if that suggestion could be referred to the Cabinet Office for its consideration and advice.

As a result of the useful work done by the Merits Committee, we now see more clearly what the real purpose of this exercise is. The Government pretend that they are offering greater flexibility, but this isin fact a preparatory step towards forthcoming legislation—the “nightmare on Marshall Street” legislation, which the noble Baroness, Lady Anelay, mentioned—under which boards are to be compelled to contract out 10 per cent of their services in 2007-08 and an increasing proportion in later years. Ultimately, programmes for the rehabilitation of offenders, including drug rehabilitation but not, apparently, alcohol rehabilitation, amounting to£250 million a year—about a third of their total expenditure—will all be farmed out, leaving the boards with direct responsibility for managing high-risk offenders in the community.

Mr Harry Fletcher pointed out to me this morning that the distinction between high, medium and low-risk offenders is artificial because, although 35,000 out of the 50,000 offenders under supervision at any time are classified as low-risk, this low-risk group accounts for about 80 per cent of repeat offenders. I was reminded of the work of Professor Jean Floud many years ago on dangerousness, in which she found that there was no reliable scientific method of predicting the propensity to commit serious offences. Giving the easy cases to the private contractors and leaving a core probation service to deal with the hard ones simply will not work, because so many of the offenders will need constantly to be transferred between one category and another.

The argument behind the order is that the boards will need expertise primarily in commissioning and contracting out the services, and that they will not need to have much of a clue about how to deal with low-risk offenders. However, they will still need to cope with the 1,500 high-risk offenders, and—perhaps the Minister can confirm this—with the 13,000 offenders who are classified as medium-risk. Presumably, whenever a low-risk client commits a serious offence, his case will be taken from the private contractor and given back to the probation service. However these matters are to be dealt with, it is hard to see how the boards will discharge their functions if they are composed entirely of businessmen—I take it that they will be mostly men—without experience of the criminal justice system or, indeed, of the mental health or local authority services. Nor is it clear from the response to the Merits Committee who, underthe new system, will have responsibility for the rehabilitation of offenders with alcohol problems, and it would be helpful if the Minister could say something about that when he replies.

We are not against the proposition that requiring four members of the board to be magistrates may be too prescriptive, but we note the Government’s apology for saying in the Explanatory Memorandum that there was substantial evidence that many magistrates and local authority members did not possess business skills. That is entirely in order because there was no evidence for this lack of skills among magistrates. I certainly hope that, as a result of this order, boards will not lose all knowledge of the criminal justice system now available to them from their magistrate members. That point has been made forcefully by NACRO, which is also among the bodies with which the Government did not bother to consult.

Eliminating the requirement that two members should be local councillors is opposed by practically everyone I can think of, including the Probation Boards’ Association and the LGA. They point out that partnerships with the local authority and the police are at the heart of modern probation practice and are necessary for close liaison, joint funding and joint planning through local area agreements. NACRO says that the probation service needs to be closely linked with housing and education, since they are both crucial to the resettlement of offenders and the reduction of reoffending. The direct input from local authority representatives on the boards is a valuable way to ensure that these connections are strong and productive, and that probation services complement and reinforce the activities of local authorities in reducing crime. Napo has been told that it will no longer be necessary even for a member to live within the probation area, let alone be a member of the local authority.

We view with apprehension the upheaval which will ultimately sweep away the National Probation Service with the introduction of commissioning and contestability at regional level, of which this order is a precursor. We agree with the noble Baroness,Lady Anelay, that separating consideration of the composition of the probation boards from the foreshadowed primary legislation is wrong in principle. It deprives Parliament of its right to amend the proposals to reverse the damaging loss of the ties between the boards on the one hand, and the magistracy and local authorities on the other, while approving the greater flexibility of appointment periods and a reduction perhaps of the quorum, although I noted that the noble Baroness was not in favour of that either.

We agree also with Napo that moving towards a regional or national model will undermine the public protection work undertaken with partners in the courts, the police, health services, particularly mental health, sentencers and the voluntary sectors. We have not been able to identify a single organisation which is in favour of the upheaval that the Government are planning to inflict on the probation service, apart from the incumbent of No. 10, who will be leaving shortly—we hope. Is it too much to hope that with a regime change in the offing, there could be a moratorium on the harmful changes coming down the track for the probation service and that, as a sign of hope for the future, this order will now be withdrawn?

My Lords, if a week is a long time in politics, a fortnight can prove to be an eternity. Only a fortnight ago, I expressed my unreserved thanks to the Minister, who sadly is not in her place today, to which she characteristically and generously responded, for saving that endangered species—the magistrate—from exclusion from police authorities. How quickly time passes. Now I find myself adding my voice to echo the concerns, which were so ably detailed by the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Avebury, about the effect of these new regulations, again in so far as they will apply to the magistracy. I should declare that the Magistrates’ Association is of course against them.

Although I totally absolve the Minister from what I now have to say, the probation service has been the whipping boy of Governments of whatever colour over recent years. I recall the theory prevalent in some quarters not so long ago that shortages in the probation service could easily be filled by recruiting ex-warrant officers and the like from the Armed Forces, because it was a task to which they were well suited because of their experiences there.

Next came the wheeze—I think that that is the right word—of denying probation officers the chance to study for a degree because such high aspirations were deemed to be unnecessary for such a humble calling. Indeed, I remember being part of a delegation to the then Home Secretary headed by a distinguished former head of the Home Office, my noble friend Lord Allen of Abbeydale, who is sadly unable to be here today, where we managed to achieve a smart turnabout in government policy on this issue.

I apologise for a slightly extended preface, but the remainder of my remarks will be brief. I am sure that the Minister would rightly affirm that he has nothing but praise for the laudable achievements of the probation service. From my experience as a magistrate for 27 years, I can say only that I valued its contribution to my work immensely and can think of only a minuscule number of times when I disagreed with what it had to say. However, in my view these proposals will be damaging to that capability and will be unlikely to succeed in their objective of securing seamless offender management and disposal.

There is also much evidence that the consultation process—as I regret is so often the case nowadays—has been inadequate. It is also not entirely clear on what evidence the various assumptions in the original Home Office paper were made. The removal of magistrates and local government representatives from the boards some two years ahead of the establishment of the trusts is not a fully thought-out initiative, particularly in view of the appointment of so many new probation board chairs in the new year. Surely what the newcomers will want as they settle in will be know-how and experience to guide them through areas with which they may well be unfamiliar. Casting all that expertise aside at this time and in what I can only call such a sneaky way will be counterproductive in the end and make this very much more difficult.

I am also concerned that what is now an integrated system will be split into a number of unconnected operations. To cite an example, nowadays a sentence can contain several different requirements such as a curfew, supervision and perhaps even a course of treatment for anger management. Is it the case that each of these separate but closely linked requirements could become the responsibility of three separate enforcement bodies in the future? If so, there is more than an even chance of bureaucratic muddle and confusion lying ahead.

Finally, I have to say that the additional costs involved in these ill advised changes would be far better deployed at the coalface where they are very much needed, and would present a far better chance for securing the reduction in reoffending targets which this Government very properly seek but I fear will not get with these proposals.

My Lords, being a member of the Merits Committee of your Lordships’ House provides a special interest in statutory instrument practice. If, in a somewhat technical way, I go beyond the comment made in the committee’s 46th report,those views are my own. We have before usStatutory Instrument 2664, with its Explanatory Memorandum, along with the department’s letter set out in the 46th report, and now we have the draft of an amended Explanatory Memorandum, as promised in the department’s letter. I will concentrate on board membership, the terms of appointment and the change from seven to five for a quorum.

As always, we are involved in a paper chase. Asmy noble friend Lady Anelay said, Schedule 1 to the 2000 Act confers the power to regulate and sets the minimum board membership at seven. Shortly after the Act came into force, Regulation 2 of Statutory Instrument 2000/3742 stated:

“A local probation board shall have a maximum of15 members”.

That is the position today, and it is not proposed to change it in the statutory instrument we are considering. As the department tells us, most boards operate at 15 members.

What is to be changed is the composition of the boards. The four local magistrates and the two local authority members, as we have been told, who have taken six places out of 15 as a result of Regulation 5(2) of 2000, are to go. No convincing explanation is given for this change. Indeed, the latest version of the Explanatory Memorandum states that the changes to be made will mean that,

“boards can be more effective in addressing local circumstances”.

Is it really suggested that magistrates and local authority members do not understand local circumstances? Although at first it was said that magistrates did not have the modern skills needed—what an abused, Humpty-Dumpty word is “modern”—this was rapidly withdrawn. Nor can anyone argue that there is not room within a board of 15 to include business acumen, human resource experience and knowledge of finance, diversity and competition, curiously angled and incomplete though this department list is.

As there has been no consultation and we do not have an ex-post evaluation of the six years of the boards working under the Act, we can only speculate as to the true reasons for the proposed change. Is it just a dislike of magistrates? Most probably so. No doubt the Minister will tell the House. When he does so, will he also tell your Lordships why there is no reference to the work of Her Majesty’s Inspectorate of Probation?

We are also told that there are “sleeping” members of the 42 boards who,

“make up weight for the quorum”,

as if to say in a board of 15 only seven can be expected to turn up—two of whom, with the chairman’s permission, may sleep. Indeed, the department says that most boards struggle to achieve a quorum of seven. This is given as the reason for reducing the quorum to five. What evidence does the department have for this most serious governance assertion? Has it been taken up with board chairmen and what has been their response?

There is also the matter of the terms of board appointment. Regulation 6 of Statutory Instrument 2000/3342 states:

“A member of a local probation board shall be appointed for a term of three years and shall be eligible for”—



This is to be changed by Statutory Instrument 2006/2664 to,

“a term not exceeding three years”.

This means that a board member has no security of tenure whatever. What is the reason for this change? If, as has been said, it is to pre-empt Parliament because of intended legislation, that really will not do. If it is to change public appointments practice so that board members are wholly at the mercy of the Secretary of State, this is completely at odds with repeated assurances that bodies such as local probation boards are to be strong and independent. How can anyone be strong and independent if they have to keep looking over their shoulder, given the arbitrary power conferred on the Secretary of State?

The practice followed to date has not been in accordance with the Government’s declared policies for better or less regulation. The Minister needs to withdraw this instrument and think again. Second thoughts this afternoon are not enough.

My Lords, I join the other Members of the House who have spoken following the very competent and comprehensive outline of the reasons for this Motion given by the noble Baroness, Lady Anelay. Three words spring to mind when thinking about this problem—“perverse”, “shoddy” and “unnecessary”. Those three words were emphasised by the fact that when I collected this piece of paper from the Printed Paper Office, I found that it cost £3. I was extremely glad that I was entitled to a free copy. I am not surprised that the Merits of Statutory Instruments Committee said that it required more explanation than the very thin Explanatory Note included in the instrument.

If I were the Minister responsible for the National Probation Service, I should be seriously alarmed about the various measures that I and my Government had been involved with since 1997 which have seriously undermined the morale of that service.

The service started life 100 years ago. Its raison d’être was very much the aftercare of offenders in the community; now it is told that its first priority is punishment. It was told that it was going to be a national service; then it was told that it was going to be merged with the Prison Service; then it was told that it was going back to being a county service; then it was told that it was going to be a regional service; and then it was told that parts of it were going to be privatised. It really does not know whether it is coming or going.

Other Members have spoken of various changes that have happened in the service, such as the disastrous reduction in training, of which the service was justly proud. Giving a university basis to the education of probation officers meant that they understood probation in the broad, not just in the narrow. Therefore, announcing in 2001 boards which are structured to link with and contain members from the community with which the service is working was welcomed within the service. That has been dashed, and now Ministers wish to see a change in competencies, human resources, finance, diversity and competition. That has nothing to do with the management of offenders; it is all to do with the management of the management of offenders, which is totally different.

The guts of the proposal are contained in the intention of the Secretary of State to deliver probation services himself. That does not seem sensible, which is where “perverse” comes in. Thedrift of where the Government say they wantthe management of offenders to go is into the community. Youth offending teams, which the Government formed and which are a success, are run by local government. They include representatives of all the agencies which can deal with offenders. Why, then, suggest that you should take away from the governance of probation the very people who are looking after young offenders? At the same time, Green and White Papers are delegating responsibility to local government for looking after child and youth matters. Why not the probation service as well?

If I were a member of the Home Office, I should be alarmed that a thin piece of paper such as this was going out in my name. Having been accused of being dysfunctional by my Secretary of State, I ought to do everything possible to dispel that image, and get myself thought of as someone who could think things through. Yet a statutory instrument is coming out before a Bill in which the whole subject of which it is a part is to be discussed. I can think of nothing more inappropriate to be brought before this House. It is extraordinary that it should be rushed through at this time, without consultation or due consideration. Therefore, I agree entirely with the noble Baroness that the regulations should be withdrawn as quickly as possible.

My Lords, I support the noble Baroness, Lady Anelay, wholeheartedly and am very grateful for the interventions of the noble Viscount, Lord Eccles, and all the other speakers. This measure seems to be based on a profound misunderstanding of what makes probation successful. The Government’s policies on probation have slowly but inexorably moved it away from its base in local communities and diminished its relationship with the magistrates’ courts, yet those two relationships are crucial for its success. It is important to remember what probation has to offer to those whom it aims to supervise, control and reintegrate into society. It actually has nothing to offer except for its skills, persuasiveness and contacts. It cannot provide someone with a GP or a roof over their head; it is not an education provider and it cannot give anyone a job. It does not have the resources to sort out a family problem—that is the job of social services. It has no mental health or drug treatment.

Rightly, those services are all provided by various local agencies, most by the local authorities and some by the health service. Some are obtainable only through good local knowledge and local connections. Without that local knowledge, those local connections and some local legitimacy at a time when resources are under pressure, probation officers can do nothing for those whom they supervise except listen to them, advise them, assess their risk and redirect them elsewhere for what they really need.

Similarly, there is the relationship with the magistrates’ courts, which is even more extraordinary. The relationship between the probation service and the courts is crucial; it has to be one of considerable trust, built up over time. Never has it been more important—and I am sure that the Home Office understands this—that probation officers should be able to make recommendations for community sentences that the courts have confidence in. How else are the Government going to deal with the massive overuse of prisons?

Over the years, the magistrates on probation boards have been vital supporters of probation and made its case with their colleagues on the Bench. They have been supporters of the probation service in the wider community. Magistrates are respected figures in local communities, with considerable legitimacy. How will a probation board with no magistrates or local authority representatives establish the relationships that it needs?

There are other issues of legitimacy and propriety. Probation officers exercise considerable powers over the liberty of the subject. They can recall someone to prison on their own initiative. The person can stay there for weeks or even months before the Parole Board gets round to looking at the case, because, as I understand it, the Parole Board is swamped with such cases. Should these powers be exercised by a body whose governance contains no judicial persons—unless the Minister tells me that judges are to continue to sit on boards, even when they have begun to be described as businesses?

Finally, I echo other speakers in asking: is it appropriate that this order is being debated on a Friday afternoon by this process? It is a vital matter of the governance of an organisation that last year spent £0.9 billion on its work and it is of considerable importance to whether or not people can live safely in their communities. Should such changes not be debated properly by Parliament? Is this not rather an unacceptable way in which to sneak in somechanges? I wondered whether the word “sneak” was appropriate to use in this House but, having heard it used by my noble friend Lord Tenby, I am sure that it is. Surely this is a sneaky way for the Government to try to get through a part of a much larger plan, for which we have not yet seen the legislation.

I hope the Government take note of the strengthof feeling expressed here and the opposition of the Magistrates’ Association, the Local Government Association and all organisations that know anything of how the probation service works to make our society safer. I hope that the Government will reflect on the damage that they are doing here today, or that they did on 1 November. I support the Motion of the noble Baroness, Lady Anelay.

My Lords, I rise briefly because I am concerned by this clear breach of the expected procedures on consultation and so on that we are clearly seeing here. That breeds a lack of trust in the bona fides of a few, but very powerful, people in the Executive. The trouble is that we then have to reflect on other legislation that is being passed. How can we believe the assurances that we are given, that what we are told is what will actually happen, when we hand over to the Executive huge amounts of power to make the rules that will control citizens’ lives?

In legislation that has recently gone through in statutory instruments, I have had discussions with other branches of the Home Office. They have given lots of assurances that they will not abuse some quite loosely worded powers that they are taking. Can I now trust those assurances?

I have always said I was worried about passing legislation that could be abused five or 10 years down the road. I think we have done that recently in some statutory instruments. Looking at the behaviour today, we were probably wrong to trust the Executive last week and the week before. That concerns me hugely.

The other minor point is the use of the word “risk”. There is a huge risk that these people will reoffend. Or are they talking about the risk of danger to the life and limb of the public? In this case, they should be talking about categories of “dangerousness”, not of risk.

I would have thought it was almost time to send a signal to the Executive, to tell them they cannot get away with this sort of behaviour. If they wish to divide the House, I think we should throw the statutory instrument out for rethinking. Perhaps that is going a little far, as the usual channels will hate it, but maybe they should be shown a signal too.

My Lords, as a former member of a probation board committee and subsequently of a probation board, I suppose I ought to declare an interest, although my service is quite a long way behind me now. I had not really intended to speak, but I want to emphasise my absolute support for the speeches that have come before.

It is extraordinary to suggest, at this point of the legislative procedure—or at any time—that the membership of, for example, magistrates on probation boards is not essential. The magistrates are able to explain to the many members of the boards how the magistracy works, how it is trained, how it sentences and what the interaction is between the probation service that we are running and the magistrates who are receiving our services. One ofthe recipients of the services of the probation service is of course the magistrates’ court.

There has already been an enormous amount of change in the service, and several people have spoken of that already. The only thing that really matters in the probation service is the probation officers. They are the key to the success of the service. You cannot keep on reorganising, refocusing, re-reorganising and re-refocusing those small bodies of people upon whom the delivery of an essential service depends.

I draw the attention of the House to item 8 in the paper, which says,

“A Regulatory Impact Assessment has not been prepared for this instrument as it has no impact on business, charities or voluntary bodies … The impact of this Order is purely internal to the Probation Service so there is no further impact on the public sector”.

We have been hearing a great deal about the collaborative nature of the work of the probation service in the whole context of the delivery of local government, and I know quite a lot about it myself. Those two sentences show how very little the Home Office seems to understand its own service.

My Lords, I am grateful for the attention and interest that the issue has aroused in your Lordships’ House. I thank all those who have contributed to the debate. I felt as if we were debating a Bill that has yet to be announced and is probably yet to be drafted; it has certainly not yet seen the light of day. However, it is anxiously anticipated. We shall probably debate at length many of the issues that were raised when and if—many of your Lordships expect that this will happen—a Bill on the National Offender Management Service is introduced.

I shall try to restrict my comments to the matter before us and to the Motion that the noble Baroness, Lady Anelay, has properly brought forward for our consideration. Everybody who contributed to the debate was aware that the regulations were subject to comments in the 46th report of the Merits of Statutory Instruments Committee, which was published last week. Before I explain the background to the regulations, I express my sincere apologies that the standard of the Explanatory Memorandum fell below that expected by the committee, and that it did not contain sufficient background detail. I apologise unreservedly for that. The Home Office has taken steps to remedy that and has put more information in an expanded memorandum. I hope that those who have had the opportunity to study it consider that the extra information is valuable. It was certainly intended to be. It was not in any way the Home Office’s intention to show disrespect to the Merits of Statutory Instruments Committee or to sell people short, as it were, in providing the information that was properly required.

That said, it is important to put the regulations in context. The purpose of the amendments is to ensure that from 1 April 2007 the regulations governing the membership of probation boards match the competencies and skills that will be required for boards to deliver in an environment of public value partnerships, mixed economy and competition. They amend the period for which a board chair or member can be appointed from three years to a period not exceeding three years and reduce the number of board members required for a local probation board meeting to be quorate.

While this statutory instrument does not seek to pre-empt any future legislation in respect of the National Offender Management Service, it seeks to ensure that boards have the skills they require to operate in the current increasingly complexand competitive environment. Although these amendments have the advantage of preparing probation boards for the transition to the envisaged probation trusts, we obviously wish to address immediate improvements in performance through the regulations.

The recently published Public Value Partnerships document requires probation boards to focus on public protection and the management of high-risk offenders. As part of this strategy, boards will be required to increase their level of subcontracting to10 per cent in 2007-08. That means that boardswill require extra expertise on purchasing and commissioning standards. It is essential that boards are able to fulfil that function successfully. Skills in business acumen will ensure that boards have the necessary expertise to move forward confidently to meet future expectations and challenges.

I do not think that should simply be read as meaning that we want those boards to be just like a business; that is not the intention. What we are after is adding something to the current range of skills that are quite properly contained in those boards. We certainly acknowledge that the boards have performed well; but in this era of expanded commissioning and the development of a more mixed economy in terms of service provision, added acumen must be an important feature of those boards.

Each House of Parliament will, of course, have the opportunity fully to consider primary legislation in the proposed Bill relating to the National Offender Management Service and the future of probation boards. The proposed legislation will create probation trusts, which will be public sector providers subject to competition and contestability. Should legislation be successfully passed, the Government do not envisage a “big bang” move to probation trusts, but a phased approach over a period of years. The regulations address the period from 1 April 2007, with, at the earliest, some boards converting to trusts in 2008. That change is obviously reliant on legislation, but it is seen as part of a longer-term process. The regulations will allow boards to develop their skills and expertise, not just to meet the requirement of the Public Value Partnerships document, but to allow them to be effective public sector providers in a future of mixed economy, commissioning and contestability.

I will give noble Lords some brief background to why we seek to make the changes. When the statutory instruments governing the formation of probation boards were written in 2000 and 2001, they took into account the previous funding arrangements between central and local government, and they were intended to be a bridge between what had gone before and the new wholly centrally funded boards. It was therefore decided that each board would, where practicable, have four magistrate members and two local councillors. I wish the House to be quite clear that the regulation in respect of magistrate and councillor members does not minimise the value that we place on their contribution to probation boards. It is clear that each board will wish to retain magistrate and councillor members wherever possible, but we also need to ensure that they bring with them an understanding of the needs of greater business sensitivity to improve the performance of the probation service.

Why are we seeking to introduce these regulations now? Board chairs and members are appointed to hold office for a maximum of two three-year terms, and thus a substantial number of chairs and board members who were appointed in 2001 will come to the end of their terms of office on 31 March 2007, and a major campaign is under way to recruit their replacements. The regulations allow flexibility in the length of appointment of up to three years, rather than a fixed period of three years. When this recruitment exercise was initially discussed, several boards identified an opportunity to reduce the quorum of board meetings, leading to smaller, more effective boards. Legislation requires that probation boards have a membership of between seven and15 members. Some 36 of the 42 boards have opted to reduce the number of board members, and that is most easily achieved if we reduce the present quorum of board meetings from seven to five. It is a positive message that local boards want smaller boards anda reduced quorum at meetings. Now, with the recruitment campaign under way, this is the right opportunity and environment in which to make the changes outlined in the regulations.

To facilitate the preferred reduction in the size of boards, we need to rebalance the board profile. In addition to the chair, the chief officer and the judge appointed by the Department for Constitutional Affairs, the board would lack balance if it were to maintain the block of four magistrate and two councillor members. This inflexibility regarding membership creates a lack of local choice. A number of Members have already referred to the importance of partnership, and we place a very heavy reliance on that because we see it as having great value. We believe in the importance of local choice; and that is what we want to ensure in the future.

With no reduction in the current arrangement, there would be a board of nine—the chair, the chief officer, the judge, four magistrates and two councillors—and if a board wanted to reduce its total membership from 15 to, say, 12, that would allow for only three lay members. We do not think that such a position is sustainable, as we feel that boards need to have a more balanced and broader membership.

We entirely accept the argument made by a number of noble Lords about the value of rooting probation boards in local communities, and we have sought to retain and enhance localism in the current recruitment campaign. The local response to the campaign has been excellent, with more than 3,000 applications, and the interview process is now under way. As part of the recruitment process, Ministers and officials specifically wrote to, among others, MPs, the Local Government Association and the Magistrates’ Association, encouraging locally based individuals to apply for board membership.

These regulations meet the needs of today’s probation boards and will allow them to be more effective and responsive, providing them with more local discretion and the ability to meet more closely local circumstances and needs. We consider the regulations as essential to the development of probation boards, and that is why we wish to introduce them now, thus allowing the challenges to be met in the interim period between now and the introduction of probation trusts.

I listened very closely to what was said about the value of the local magistracy and local councillors. I assure the House that we do not in any way devalue the contribution that those members make to the work of probation boards. It is not our intention to force them out and eliminate their representation on boards. I was an elected member of a local authority for some 16 years and I know the value that local councillors can add to other local services. Indeed, I think that over a considerable number of years my authority regularly appointed members to probation boards, and many of them were, as ever, involved in the work of the magistracy. I know, too, from my work in local crime and disorder reduction partnerships that a broad mix of people has to be involved in the localist aspect of criminal justice. I bring that flavour to this debate, and I know that it is a view much shared by Ministers in the Home Office.

Noble Lords made a number of specific points and raised concerns. The noble Lord, Lord Avebury, was concerned about the position of alcohol services. That will be the subject of contestability withinthe new arrangements, as with many of the other probation programmes. However, I think that the noble Lord was probably more generally concerned about outsourcing. As is the case now, there will be a variety of providers, from which I think the service is benefiting, so that expertise can be focused on the service that is required. That is one reason why, in a nutshell, we need a broader range of membership on the boards. We need to develop the ability to manage contracts and ensure effective supervision of the different providers.

The noble Lord, Lord Ramsbotham, was, as ever, very concerned about morale in the service—a matter that he has raised in connection with other services, not least the Prison Service and the Prison Service inspectorate in recent weeks. It is obviously an important issue. It is worth saying that, as we have been in government since 1997, we have put significant funds into the probation service and there has been a large increase in the number of people employed in it. The statistics that I have tell me that the number of those employed has risen by some51 per cent. When we came into government, I remember hearing much criticism of the previous Government over the way in which it was thought that the probation service had been run down. I make no comment other than that. It was during the previous Government’s time that the ability to fund trainees on degree courses was taken away.

I know that Paul Boateng, one of our early Ministers for the probation service and prisons, reinstated that in 1997. The attrition of probation staff—the rate of turnover—is much lower in comparison with other areas of public service. Our feedback shows that the service is developing well; it is responding to different pressures within the criminal justice system; and it is meeting those challenges with confidence.

There was some criticism of the consultation process that was conducted prior to this statutory instrument. I willingly place in the public domain and confirm points made by the noble Baroness, Lady Anelay, and the noble Lord, Lord Avebury, and others that there was no formal public consultation exercise because we did not consider that one was required for this statutory instrument. That is not to say that we do not recognise the importance of consultation, because we do. However, we have consulted informally with a number of probation boards and probation members. We have sent correspondence to local authorities, to the Local Government Association, the Magistrates’ Association and the Probation Boards’ Association, in which we clearly trailed and explained the changes and actively encouraged councillors and magistrates during the application process to apply for positions as members of boards as part of the continuing recruitment exercise.

My Lords, on consultations, could the Minister answer my question about whether the Government will refer to the Cabinet Office to see whether a set of rules can be devised to cope with instances, such as this one, where a full consultation is not considered necessary? At least there could be reference to the heads of organisations whose members are principally affected by the changes proposed.

My Lords, I was about to say that I thought the noble Lord had raised a very valid point. I had jotted that down in my notes. There would be some value in me referring the issue to the Cabinet Office. I know it is quite properly concerned about the way in which consultation operates across government. That point is very valid and I shall refer it forward. We need to give it some further thought.

I have explained the recruitment process. As I understand it, the current exercise is to replace the30 board chairs and around 300 board members who complete the second of their three-year terms on31 March next year. That exercise should ensure that a broad range of interests is represented on the boards; that we have the proper focus on business continuity; that we bring in that added element to the board’s range of expertise; that we reflect on the value of the current magistrates’ appointments and counter-appointments; and that that experience is part of the broader board membership.

The overall aim is simply to achieve a rebalance while retaining in membership those with sentencing and other valuable local experience. That is a very important strength. Early indications on the recruitment exercise are that a large number of councillors and magistrates have applied to be board chairs and members. The early sifting reveals an apparently very high standard of applicant. We should take great heart from that.

I know “modernisation” is a word that many noble Lords do not greatly love, but this is a programme of modernisation and reform of public service and the probation service is part of that. It will require more partnership working and a greater familiarity with competitive and business environments within which they operate and skills in commissioning and contestability. By rebalancing the membership of the boards, improving their range of skills and competencies, we think we will improve the delivery of probation services. I would have thought that we could all sign up to that in order to prepare the service better for the challenges that it faces.

I understand the concerns that have been raised. We shall reflect on the voices raised on all sides of your Lordships’ House where a diverse group of noble Lords has been present today. The concerns and issues that have been raised will surface again when we debate the fundamentals of what is likely to be in the next legislative programme. I place on record my thanks to noble Lords who contributed to this debate and our thanks for the contributions of noble Lords who serve on the Merits Committee, take an interest in the probation service and are as passionate as I and our Ministers are to ensure that standards within the service continue to improve.

My Lords, as always, I begin by thanking the Minister for setting out the Government’s stall. During this debate, he will have felt that there was a signal lack of support for him in the Chamber. There is strength of feeling, and it was expressed with military succinctness by the noble Lord, Lord Ramsbotham, who said that the regulations are “perverse, shoddy and unnecessary”. The noble Baroness, Lady Stern, who has professional expertise in these matters, said thatthe regulations were based on a profound misunderstanding of what makes probation services successful. I agree with the noble Lord and the noble Baroness. There was concern about the lack of formal consultation. All noble Lords echoed the belief that magistrates and councillors are of such value that they ought to be on probation boards rather than the vague “maybe, maybe not”. Such people bring local experience to the criminal justice system and probation boards will be much poorer without them. We also focused on the issue of time.

While the debate was going on, I reflected on the procedure with regard to statutory instruments, which was raised by the noble Earl, Lord Erroll, and by my noble friend Lord Eccles. This instrument was subject to the negative resolution procedure. When primary legislation goes through the House, we anticipate that the negative resolution procedure will be reserved for essentially non-controversial matters, technical matters or matters that been fully rehearsed in the legislation upon which they hang. Therefore, it can be said that when the House passes primary legislation it gives permission for what will follow that is foreseeable at that time. The trouble is that when the Criminal Justice and Court Services Act was passed in 2000, the way in which these regulations are now being used was not foreseen. Therefore, it cannot fairly be said that the House gave its permission then for this kind of development. That throws up what could be a matter of concern in our scrutiny of what should be left to the negative resolution procedure in future legislation. I will be very happy to discuss that with the noble Earl, Lord Erroll, on future occasions.

The Minister stated the Government’s argument about having a flexible board that responds to modern needs. Probation boards are not trying to be inflexible or wilfully to prevent the delivery of effective service. They are trying to deliver an effective service, but the Government are trying to steer them in a different direction by the way in which their membership will be set up. On the size of boards, the Minister said that the Government are trying to add expertise, but they are doing that by removing the right of magistrates and councillors to be on the board. There are a lot of contradictions here.

I find these regulations extremely unsatisfactory. In Lords’ language, that means I wish I could tear them up and throw them out. I have been tempted to do just that by one or two noble Lords who have asked about a Division today. I am not the usual channels, and I do not want to risk their wrath just yet; I would like to live a couple of days beyond the Queen’s Speech. Of course, it would be gross discourtesy to the House if I were to call a Division without giving prior warning of so doing, although by doing so, I could perhaps have had even more supporters for my Motion today.

The serious reason I do not wish to divide the House today is that I take consultation seriously. These matters need to be thoroughly discussed in the context of the new management of offenders Bill, when we ought to see whether the Government's premise today is as flawed as I believe it to be, or whether they can come up with any credible arguments.

I know that the noble Lord, Lord Avebury, was worried that if we allow these provisions to go through, the door is closed. I looked at the original drafting of the Bill that we saw two long years ago when it drifted through this House briefly at First Reading, received a Second Reading date and was then abandoned by the Government. I am advised that under that original drafting—if we see that Bill back again—we might find a way of tabling an amendment within scope that could rid this place of these regulations. We should be able to give this House a proper opportunity to discuss them then. So, only against that background and my future hope of ripping these provisions up do I leave them not quite in shreds, but beg leave to withdraw the Motion.

Motion, by leave, withdrawn.