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Offender Rehabilitation Bill [HL]

Volume 752: debated on Tuesday 11 March 2014

Commons Amendments

Motion on Amendment 1

Moved by

1: Clause 1, leave out Clause 1

My Lords, I start by expressing my regret that I did not have the benefit of being on the Front Bench when the Bill was last considered by your Lordships’ House. It was of course my noble friend Lord McNally, whom I am glad to see is in his place, who had the privilege of debating the Bill with noble Lords. I have, however, read the Official Report of those debates very carefully. I am struck by the expertise and passion displayed by all noble Lords who spoke. I have myself sat as a recorder so I have some experience of the issues that offenders face when trying to turn their lives around. However, my own experience pales in comparison with the experience and careers of many who have been involved in the justice system who have spoken during the passage of the Bill. I am sure that the collective experience of all those noble Lords will inform today’s debate, just as it has informed previous debates.

Commons Amendment 1 returns to the issue that dominated discussion when the Bill was last in your Lordships’ House: the Government’s reforms to probation under the Transforming Rehabilitation programme. It may help if I briefly summarise those reforms. Their aim is to reduce our current high reoffending rates. Almost half the offenders released from our prisons, and around one-third of those serving sentences in the community, offend again within a year, and of course prisoners released from short custodial sentences, who have the highest reoffending rates, receive no statutory supervision at all. I pay tribute to the excellent work that is already done by the probation staff with offenders subject to supervision in the community. They do important and difficult work. However, I am sure all noble Lords will agree that there is much more that we could do to address the causes of that reoffending, whether that is housing, physical and mental health issues, substance abuse or literacy, numeracy or employment skills.

It is unfortunately the case that we have to do so in the context of financial constraints on government spending. We spend around £800 million a year on probation services, a significant part of the Ministry of Justice’s budget and one that cannot be exempt from these pressures. We have a choice: either to make cuts to the current system, which of course does not provide supervision to the short-sentenced offenders who need it most, or reform the system so that our resources can provide support to all the offenders who need it. The current Lord Chief Justice put this challenge well last week when he said:

“The starting point is that we must be radical in our thinking”.

The Transforming Rehabilitation reforms rise to that challenge. We are seeking to draw on the experience and expertise of a wider range of organisations from across all sectors to support low-risk and medium-risk offenders in the community. We want to give probation staff working in those organisations much greater autonomy to support offenders as they see fit and to encourage innovation. We are creating a new National Probation Service—the NPS—directly to manage all offenders with a high risk of causing serious harm, together with any other sexual or violent offenders subject to multi-agency public protection arrangements—MAPPA.

The efficiency savings that these reforms will generate will be reinvested in two major prizes that many noble Lords have long argued in favour of. The first is a through-the-gate system of support for everyone released from prison, so that the same organisation is working before their release and afterwards. The second is the extension of supervision after release to short-sentenced prisoners, which is at the heart of the proposals in the Bill and which will allow us to support some of the most prolific offenders in our criminal justice system.

It was clear at Second Reading and beyond that many noble Lords wanted a greater chance to scrutinise these changes that the Government are making to probation services. That is what I understand to be the purpose of the amendment tabled on Report by the noble Lord, Lord Ramsbotham, which Commons Amendment 1 would remove. I remind noble Lords that the Secretary of State’s powers to commission services from a wide range of organisations already exist in the Offender Management Act 2007. Those powers, which both Houses approved, do not provide for parliamentary scrutiny of the services that the Secretary of State commissions. Nevertheless, I understand why the House might have taken the position that it did in June last year. At that stage, while the Government had announced their intention to commission probation services from a wider range of organisations, we were still developing the detail of how the new system would work. Nine months on, the position is different.

The Government have published extensive information about the reforms. That includes full details of how the operational processes in the new system will work, a list of organisations that have passed the first round of the competition for rehabilitation contracts, and draft contracts. Copies of all those documents—they form a significant pile: I have them here—have been placed in the Libraries of both Houses. I have also discussed the detail of the reforms with a number of noble Lords in recent weeks and offered opportunities to meet to noble Lords of all parties. That information addresses, I hope, the many questions that noble Lords raised about the reforms in May and June last year. Let me summarise some of the most important of them now.

First, there is the crucial issue of engaging with and supporting those already working in probation—what the noble Lord, Lord Ramsbotham, described at Report stage as “taking people with you”. We are working closely with probation trusts to make sure that probation staff have the information and support they need while these changes take place. We are committed to treating staff fairly during this period of transition. I am pleased to say that we have reached agreement with the trade unions and the employers’ side over a national agreement for staff transfer, which will protect the terms and conditions of staff transferring to new rehabilitation companies or the NPS.

There is then the important issue, raised at Second Reading and beyond by the noble Lord, Lord Beecham, and my noble friend Lady Linklater, of making sure that rehabilitation providers and the NPS work effectively together. In particular, there is the need to avoid offenders whose risk category changes falling through the cracks. In the autumn of last year we placed in the Library details of how the new system will prevent that. Once an offender has begun to be supervised in the community by the NPS, that offender will continue to be supervised by it, even if their risk of serious harm decreases later in their sentence. Responsibility for low or medium-risk offenders whose risk escalates to high will transfer to the NPS, but the transfer will happen in a way that minimises the risk of destabilising the offender. For example, the rehabilitation provider will generally continue to be involved in delivering some interventions to the offender, even though the overall case responsibility has moved.

There is the important issue of the skills and training of staff supervising offenders, raised in particular by the noble Lord, Lord Ramsbotham. The NPS will continue to use the probation qualifications framework—PQF—to ensure staff competence. For the new rehabilitation companies there will be a contractual requirement to maintain a workforce with appropriate levels of training and competence. They can use the PQF or—for cases where there might be an excellent member of staff such as an ex-offender, who has gained skills from a non-traditional route—an alternative framework to evidence that. I am sure noble Lords will agree that we should not lose particularly valuable experience just for the sake of a qualification, provided that those who are responsible are satisfied that those who are unqualified have the ability, experience and skill to perform the relevant function. The Government are also supporting probation representative bodies to establish an independent probation institute, an idea raised by my noble friend Lord Marks at Second Reading. That will help to promote the development of innovation and share good practice across those working in the NPS and the rehabilitation companies.

There is also the need, raised by my noble friends Lord Dholakia and Lady Hamwee, to ensure that we have a diverse market and that bigger organisations do not crowd out smaller voluntary or community groups. Thirty bidders have now been shortlisted as lead providers, covering 50 organisations from a wider range of sectors, including 10 probation mutuals. A further 800 organisations have expressed an interest in playing a role as part of the wider supply chain, with more than 550 voluntary sector organisations among that number. We have published a set of market stewardship principles that demonstrate our commitment to ensuring that these organisations are treated fairly by larger providers.

Finally, there is the question, raised by the noble Lord, Lord Ponsonby, in Committee and on Report, of how the new rehabilitation companies will take part in existing statutory and non-statutory partnerships. I can now confirm—this is set out in clause 3 of the draft contract which he may well have seen—that they will be contractually required to participate in the relevant statutory partnerships. For example, companies will be designated as a responsible authority under Section 5 of the Crime and Disorder Act 1998 and as such will be subject to the associated statutory requirements with regard to community safety partnerships. They will also be contractually required to engage in non-statutory partnerships aimed at protecting the public from harm and safeguarding vulnerable adults.

All of what I have just described is set out in extensive detail in the documents the Government have provided to both Houses. It builds on nearly 20 hours of debate on this Bill in your Lordships’ House and 26 hours in the other place, much of which focused on the detail of the Transforming Rehabilitation reforms, and there were four votes in the other place in support of the reforms. We will, of course, continue to make more information available to Parliament as the reforms progress. This will include final versions of contracts, a revised version of probation national standards and details of the organisations which are successful in winning contracts.

I conclude by stressing again that the position now is different from that in June last year when the House last debated this issue. The probation reforms are being implemented under powers that both Houses agreed as long ago as 2007 and which are settled law. While those powers do not require parliamentary scrutiny, the Government have stuck to their commitment to provide extensive information to both Houses about the reforms. We have acted on the concerns raised when the Bill was last in this House, for example, through supporting the establishment of a probation institute and by publishing a consultation on the statutory and non-statutory partnerships that rehabilitation providers should be required to participate in. The elected House has made its support for the reforms clear.

At Second Reading, the noble Lord, Lord Ramsbotham, drew on the words of Caliban in “The Tempest”, fearing—inverting his words, I think—that the Transforming Rehabilitation reforms would,

“give hurt and delight not”.—[Official Report, 20/5/13; col. 664.]

I cannot promise the House a thousand twangling instruments, but if I may turn to the words of Prospero to conclude my remarks, I hope I can,

“promise you calm seas, auspicious gales, and sail so expeditious”.

I hope that the commitments and reassurances I have set out today have calmed the tempest of noble Lords’ concerns and urge the House to agree with Commons Amendment 1.

Amendment to the Motion

Moved by

As an Amendment to the Motion on Amendment 1, at end insert “, and do propose Amendment 1B in lieu of the words so left out of the Bill”.

1B: Insert the following new Clause—“Probation servicesProbation reform: Parliamentary approval(1) No alteration or reform may be made to the national structure or the provision of probation services unless the proposals have been laid before, and approved by resolution of, both Houses of Parliament.(2) For the avoidance of doubt, nothing in section 5 of the Offender Management Act 2007 (power to establish probation trusts) shall be interpreted as granting power to the Secretary of State to make structural changes to probation provision unless the conditions of subsection (1) have been met.”

My Lords, I have to admit that I have been seriously concerned about the Transforming Rehabilitation agenda ever since the White Paper and this Bill were published at the same time as its announcement in the Queen’s Speech last May. That may seem perverse when, like, I suspect, every other noble Lord, I also admit that I have no quarrel with the Government’s intention to do something about the group of offenders with the highest reoffending rate—namely, those sentenced to less than a year’s imprisonment without any subsequent community supervision—the previous Government’s announced plan for doing this having proved unaffordable.

My concerns began with the consultation that preceded the White Paper. As in too many other Ministry of Justice consultations, I have come across no one whose contribution has been acknowledged, nor any evidence of any notice being taken of any expressed concerns. Following that sham, neither House has been given an opportunity to debate the White Paper because its agenda is not the subject of this Bill. When I tabled an amendment asking for that to be rectified, the noble Baroness, Lady Hamwee, pointed out quite rightly that my wording was faulty because the Offender Management Act 2007, already quoted by the Minister, which the Government claim allows them to alter probation provision in any way they wish without consulting Parliament, did not mention “the probation service” but rather “probation services”. I pressed my amendment to a vote because I thought that my error could easily be corrected and I hoped that the House would understand that I was seeking an opportunity for it to exercise its constitutional duty. Secretly, I hoped that the Justice Secretary, if he was as confident of the viability of his proposals as he made out, might be happy to debate them, first, because he would feel that he need not fear any query and, secondly, because of the legitimacy that such a process would give them. I hoped in vain. Since then, an increasingly long list of subsequent happenings have served to increase my concern that the Ministry of Justice would be unable to deliver what was being announced without prejudicing the ability of probation services to protect the public.

When the previous Government brought before Parliament their proposal to change responsibility for the national structure and provision of probation services from counties to trusts in the 2007 Act, I remember the debates about what would happen should a probation trust fail. Ministers said that the Bill gave the Justice Secretary the power to dismiss a failing trust and make other arrangements for the provision of probation services in its area without having to come back to Parliament. However, that power was limited to “a probation trust”—words used several times in Section 5 of the Act, quoted by the Minister in another place. I submit that for the Government to press ahead asserting that “a” means “all” is a wilful misinterpretation of the Act, not least because, had there been any indication that that was what the previous Government had intended, I am sure that the point would have been vigorously debated in this House.

My concerns are not about the intention behind the Bill but the practicalities of delivery and the denial of any opportunity for either House to scrutinise them. If the proposals go horribly wrong, the public, whose protection will suffer, will rightly blame Parliament, and I can just imagine the ministerial blame-dodging that will follow—not least following the leaked internal Ministry of Justice assessment of the high risk of launching something so far-reaching but as yet unproven, a disclosure resented but still not refuted by the Government. Parliament has every reason to seek discussion of its potential position. As the late Paul Goggins MP, a former Prisons and Probation Minister, said in the other place on 3 December:

“Our electorate expects us to ask questions, not simply to take at face value the kind of proposals that are being offered to us”.—[Official Report, Commons, Offender Rehabilitation Bill Committee, 3/12/13; col. 225.]

To prove that I am not alone in my concerns—some of which are set out in a list of 50 questions that I have given to the Minister and will willingly share with any noble Lord who is interested—I will cite a number of recent happenings. Last November, three chief executives of probation trusts took the bold step of writing open letters to the Justice Secretary asking for delay. Last December, the Chief Inspectors of Prisons and Probation published a damning report on offender management in prisons, doubting whether it could deliver future NOMS expectations. They believed that the current position was no longer sustainable and should be subject to fundamental review as part of the transforming rehabilitation agenda. That was without the addition of offender supervisors employed by community rehabilitation companies responsible for sentence planning both in their contract package areas and in resettlement prisons.

The Justice Select Committee in the other place, having already drawn attention to the inability of the Ministry of Justice to manage contracts—witness high-profile cases involving G4S and Serco—said in its interim report on the proposals, dated 14 January that,

“there is a lack of systematic information about the risks they might encounter during implementation and full operational conditions and the steps that they will take to mitigate those risks. They also do not appear to have devised clear contingency plans in the event that the competition fails to yield a viable new provider for a particular area … We wished to examine the affordability of the reforms … but we have been unable to determine whether sufficient funding is in place on the limited information that the Government has provided. Furthermore, a key question for the Government is how the focus on reducing reoffending will be maintained while the restructuring of the market that is necessary to create the desired efficiencies takes place”.

The lack of funding information includes how much it will cost to supervise 50,000 short-term prisoners per year. The Government refuse to publish their estimate because they claim that to do so would inform those who might be bidding for contracts. Informed estimates by people who know the current cost of supervision are that it will cost between £75 million and £130 million a year. Is it realistic to expect that such a sum will be raised from the competition to provide probation services? If it is, it appears to anticipate a pretty hefty profit margin. Bearing in mind its track record and how long such things take, is it also realistic to expect the Ministry of Justice to satisfactorily let 21 community rehabilitation company contracts in two months? Four days ago, the National Audit Office, in a landscape review of probation, said:

“Although organizational changes can be implemented relatively quickly, implementing deeper changes to working practices, system developments and cultures will take months and years. In addition, if the system is to achieve real efficiencies and planned cost savings, then departments, agencies and local criminal justice partners need to implement as a priority an agreed and coherent plan to address problems with the flow of information”.

On information flow, the National Probation Service currently operates some 2,000 separate IT programmes which require co-ordination. What faith can one have in the ability of the Ministry of Justice to do that, when only last Thursday it announced the collapse of a £1 billion tagging scheme launched by the Justice Secretary last August as the start of a revolution in how we supervise offenders? The preferred contractor said in response that the Ministry of Justice had wanted the development of a project that did not yet exist and went on to say:

“The MoJ have been an extraordinary diversion of much of our resources for two years now and this cannot continue, and we are excited for the prospects of the business now we are free of this unproductive and frustrating relationship”.

Finally, I will quote from one of the many letters I have received from senior probation officers, who are now leaving in worrying numbers:

“It would be a deep personal bereavement to leave probation behind, but both the new National Probation Service and community rehabilitation companies look so bleak, so awful in prospect, and neither constitute that to which I committed my career and loyalty”.

I am most grateful to the Minister for two long meetings with him and the Prisons Minister, and for the amount of paperwork that he has given to me and placed in the Library. However, I must say that while long in aspiration, it is short on proof that the proposed revolution is achievable without damaging the provision of probation. For example, quality assurance arrangements are still missing from the draft services agreement, as is ICT and data management from the latest version of the target operating model. However, far more serious is the total lack of any evaluation of how long it would take to implement all these reforms were they not under the cosh of the admittedly aggressive timetable imposed by the Justice Secretary.

Surely someone, somewhere was told to work out such details. Before taking and announcing decisions, responsible Ministers, convinced that their changes are for the better, must know how long it will take to bring about sustainable change. The facts that there are so many questions about the achievability of the published timings, and that the Justice Secretary has already been forced to impose one two-month delay, suggest that this essential process was ignored.

I end with another quotation from the late Paul Goggins, who on 26 November said:

“Surely it would be sensible for the Minister to unite this Committee and unite the House by running a pilot, with the support of the Opposition, to prove whether or not he is right. If the Justice Secretary is right, and the result is that the pilot works, we would all have to hold up our hands and accept that”.—[Official Report, Commons, Offender Rehabilitation Bill Committee, 26/11/13; col. 33.]

Hear, hear to that. However, because public protection is as stake, not only would it be sensible, but it is essential that the Government’s proposed changes to the structure and provision of probation services are united with confirmation of their achievability by allowing them to be scrutinised and approved by both Houses. I accept that that will entail delay, which could have been avoided had the agenda been debated at the start. However, surely measured evolution is a more responsible approach to a duty to protect the public than the avoidable upheaval of an enforced unproven revolution. I beg to move.

My Lords, at this stage in the Bill, I shall be brief. I feel strongly about the probation reforms being proposed by my noble friend, but particularly those for offenders who have served less than 12 months. I say this having served in the Home Office and having spent some time looking at some of the rehabilitation programmes needed for problems such as drugs and alcohol. Many people suffering from these problems had been in custody and—particularly those with drug addictions—had contributed to the figures that we cite in this House. I quote only one: 58% of adult offenders released from sentences of less than 12 months reoffend. Governments in the past have not addressed this. There is rightly a lot of focus on those who have served longer sentences for more serious crimes. However, if my noble friend now wants to address reoffending after shorter sentences, we have learnt in both the Ministry of Justice and the Home Office that if you can find the methodology to address something at the beginning, when it is low level, you can prevent it becoming something much worse. Although in this House we often talk in terms of statistics, we are talking about lives. We are talking about the lives of victims, and in this case about the life of someone after discharge from prison. Finding a way in which we can bring people from short prison sentences to taking their place in society and reducing the recidivism that often goes with such offenders is worth while.

I listened carefully to the noble Lord, Lord Ramsbotham, whose experience we all respect. It seemed from what he said that a lot of information unavailable when this legislation was introduced is now available. However, he has concerns about government contracts. He particularly mentioned those issued by the Ministry of Justice, but I think that over many years people in both Houses would put a question mark over their confidence in government contracts of many kinds. We have all seen that they do not always deliver as promised. As somebody who has served on the Public Accounts Committee for six years, I am only too well aware, having dug into many government contracts, just how badly some of them have turned out. That applies to Governments of all political persuasions.

I wonder if there is some way, in responding to the concerns of the noble Lord, Lord Ramsbotham, and to the House, in which my noble friend can make sure that a light shines on those contracts that can be followed by Members of this House after the legislation is passed. Clearly, payment by results is built into these reforms, which in itself will give a very factual account of how successful they are. However, if I have understood the noble Lord, Lord Ramsbotham, correctly, he is looking for something that happens earlier than that, before we get to the end of the process. He is looking for reassurance that the process itself is as robust as it can be.

I say respectfully to the noble Lord that preventing the legislation progressing as it should is not perhaps the only option that the Minister could consider in making sure that those in this House who are interested in not only the outcome but the process have an opportunity to have much more information available to them. That is not to say that any process will be perfect from start to finish, but I think the noble Lord is trying to say to the Minister that we should pick up any problems earlier rather than later. If that is what he is saying, it is a very valid point to make. Could my noble friend find a way to look at this so that, if the legislation progresses as my noble friend has outlined, we could be particularly careful that the process that is followed is transparent, notwithstanding the fact that, as we all understand, commercial confidentiality is in place when contracts are initially awarded?

I hope that my noble friend will accept from me that I believe that this is a very worthwhile reform for the probation service. Many years ago, long before I came into politics, I undertook a course with the probation service and worked with it in a voluntary capacity. As a Member of Parliament, I had a great respect for, and often had to call on, the probation service on behalf of constituents. So I am somebody who values its work greatly, and I would hate to see the proposals for reform that my noble friend is bringing to the House today in any way undermined by a delay in their implementation. I am sure that he will have heard what the noble Lord, Lord Ramsbotham, said, and I hope that he will find a way through this so that the House can proceed. I believe that these reforms are much needed and that the sooner they can start, the better.

My Lords, I, too, wanted to concentrate, like the noble Lord, Lord Faulks, on what has changed since a very similar amendment was debated on 25 June last year, having been moved by the noble Lord, Lord Ramsbotham. It is worth recalling that, as the noble Lord, Lord McNally, pointed out, on that vote not a single Cross-Bencher supported the Government’s position. Since then, the Bill has been through the House of Commons, the vote has been reversed and the Government have done a lot of work, as I acknowledge.

In the debate on 25 June, the noble Lord, Lord Ramsbotham, concentrated his remarks on a leaked government risk register. Since then, a second risk register has been published by the probation service in November 2013, which spoke of the likelihood that the government programme would fail to be,

“delivered either in scope or within the timescale set by ministers”.

It should be noted by noble Lords that, if it were not for the work of the noble Lord, Lord Ramsbotham, and my noble friend Lord Beecham, there would be no debate at all on the timetable for the privatisation of the probation service. It is through their initiative that we are having this series of debates in the first place.

The noble Lord, Lord Ramsbotham, quoted the Justice Committee chairman, Sir Alan Beith, so I shall not repeat that. We have also seen the Government slit the timetable, which was alluded to by the noble Lord, Lord Ramsbotham.

What I really want to say is that, although we have heard about the changes that the Government have made and about some reports, what we have seen is a sense of increasing alarm in the probation service and among probation officers themselves. The noble Lord, Lord Faulks, is shaking his head, but I, like many noble Lords, have an 18-page document from the National Association of Probation Officers which goes through the concerns that it has in detail. These concerns are now more specific than they were, as it has been able to respond to the Government putting more flesh on the bones. There is no doubting the sense of alarm among probation officers.

I believe, as I am sure do all noble Lords, that the probation service deals with some of the most dangerous people in our country and some of the most vulnerable people in our society, and that everyone who joins the probation service does so with the best of motives. We have heard about the concerns that they have about their careers changing course and being asked to take on responsibilities that they did not expect. This House owes it to the probation service to review the timetable and to follow the recommendations of the noble Lord, Lord Ramsbotham, so that we can be satisfied that we are not wrecking a probation service that has served us so well over many years.

My Lords, I, too, will say a brief word in support and admiration of the probation service, with which I have worked for most of my professional life. I know how important that infrastructure has been, across the country, to the provision that has been given to people who have been at risk of, and have come out of, offending. It will still exist in a minute way, as 20% of the staff will be left to deal with the most challenging offenders. Thank God for that. The 80% who will no longer be part of this organisation will be reborn through the CRCs, which I hope will be able to do as constructive a job as has been done in the past.

This is a moment to recognise that we are seeing the passing of an organisation that has served this country well for the past 100 years, with a breadth and depth of experience that only time can give. I am sad about that and I want to pay tribute to the service that it has given. I hope that in the brave new world it will still have enough of a voice to allow it to serve us as well as it has in the past.

My Lords, first I declare an interest as chairman designate of the Youth Justice Board.

I am breaking a promise that I made to myself not to intervene in MoJ legislation after leaving the Front Bench. However, I do so here because of unfinished business. When I spoke last, I warned the House that the amendment tabled by the noble Lord, Lord Ramsbotham, was defective, and so it proved to be. I also promised to keep the House fully informed about developments. I was mightily impressed by the amount of documentation that was provided in both Houses. I congratulate my successors Simon Hughes and the noble Lord, Lord Faulks, on the progress that has been made, as outlined in great detail by the noble Lord in his opening remarks. The truth is, as the noble Lord, Lord Faulks, said, there have been many hours of parliamentary debate on these matters, and the idea that somehow they have been smuggled past Parliament is plainly absurd. Hours of ministerial time have been afforded to the critics. The noble Lord, Lord Ramsbotham, acknowledged that in written submissions and meetings Ministers have been willing to discuss his concerns in detail.

I say to the noble Baroness, Lady Linklater, that it is not about our admiration or otherwise for the probation service. I am in awe of the work that probation officers do, and will continue to be so. However, we face a situation in which we could stay where we are, with the probation service as it is but probably facing increased pressures on expenditure and capacity to deliver—the same old same old—or we could embark on radical reforms that would release the resources to carry through proper reforms. The progress we have made is truly remarkable—30 bidders covering some 50 organisations, including 10 probation-based mutuals. This really is the dawn of a new era. I disagree with the noble Baroness; this is not the passing of the probation service.

I remember in the early part of this century following the debates about the probation service. What happened to it? It was turned into the poor relation of NOMS. In these reforms we are going to have a national probation service for the first time: the head of probation will have direct access to the Secretary of State, whereas NOMS does not even have a probation officer on its senior board. That is real progress for the probation service. We are going to have, as initiated by my noble friend Lord Marks, what I hope will become a chartered institute for probation, which will promote professional standards and best practices, not just in the National Probation Service but across the sector. As has been said several times—and each time everyone says how much they agree with it—we are going to have for the first time through-the-gate supervision and treatment for those sentenced to less than 12 months, a group populated mainly by young offenders and women offenders. That is another bonus.

I understand the concerns; it is very easy, when opposing things, to roll out the risks. We are dealing with a risk business. There are risks at the moment in the way in which we deal with very difficult, violent and vulnerable people but I do not believe that those risks are such that we should throw aside the opportunity radically to reform this sector to achieve the supervision we want for those with sentences of less than 12 months, which goes to the heart of reoffending.

It may be embarrassing to remember, but this legislation is being carried through under Labour’s 1997 Act. I followed the reports as the legislation went through: Labour carefully never guaranteed to the probation service that there would be no further reforms after 2010. I suspect that it was because Labour Ministers then realised that to open the door to reform of the under-12-months sector, get those crucial reforms and provide through-the-gate treatment, they also had to reform the probation system itself. That is why, when Labour proposed treatment for those with sentences of less than 12 months, the proposal had to be abandoned because it could not be afforded under the system at the time.

That is the reality. I have to say to the noble Lord, Lord Ramsbotham, that the delay that he wants offers no way forward. It would deliver an unreformed service exposed to further cuts with, as I said, no supervision for those with sentences of less than 12 months and no through-the-gate service.

The Government have put forward a package. Since the Second Reading of this Bill, I have presented it to this House as a package of probation reform where a whole range of voluntary and charitable organisations, as well as private sector providers, have brought forward these new ideas and initiatives into the sector to tackle reoffending and to promote rehabilitation. It is a reform of which I am proud. It is an honourable package offering protection for the staff and a chance to enhance the influence and professional standing of probation. It takes into account the protection of the public, and I have seen the testing of the various structures in that regard.

I agree entirely about the problem of government contracts but it is a problem that is not new to this Government or to the MoJ. A lot more work needs to be done and I believe it is already under way in the Cabinet Office, which is looking at upskilling public services to manage public contracts. However, that is not a reason for delay. These reforms open the door to new ideas, new methods and new technologies from the charitable, voluntary and private sectors, while preserving what is best in our probation service.

I will vote against the amendment proposed by the noble Lord, Lord Ramsbotham, and I will vote with the Government because I am willing to vote for the means as well as the ends. I urge all noble Lords who support those ends to join me in the Lobby today.

My Lords,

“the Government claim that the aim of the Bill is to reduce reoffending ... Its real objective is to secure more centralised … control over the commissioning of offender management services. It centralises everything on the Home Office and removes responsibility from local people who govern the Probation Service”.—[Official Report, 17/4/07; col. 126.]

Those words were uttered from the Opposition Front Bench by no less a person than the noble Baroness, Lady Anelay, in a previous incarnation, when the House was debating the Offender Management Bill.

Nor was she the only opposition spokesman to criticise that measure on similar grounds. David Davis, who in the words of a famous movie character was “once a contender”, said that that Bill was,

“about more centralised Government control over offender management … a recipe for disaster”.—[Official Report, Commons, 28/2/07; col. 1027.]

A second reason for opposing that Bill was that it focused on “yet another organisational restructuring”. Those are interesting observations because, in a characteristically cavalier and disingenuous way, Ministers—until now not yet including the noble Lord, Lord Faulks—are now seeking to rely on provisions which they opposed and which they now deliberately misrepresent.

The Government chose to undertake this massive and highly controversial reorganisation of the award-winning probation service without seeking any degree of parliamentary approval. If it had not been, as my noble friend Lord Ponsonby remarked, for the efforts of the noble Lord, Lord Ramsbotham, and, if I may say so, my efforts, there would have been no debate about the issue before the noble Lord, Lord McNally, who is continuing to promote the cause from the Back Benches in his new capacity. The whole House will join me in wishing him well in his new role, and I have every confidence that he will carry out that role very satisfactorily.

The Government pretend that the Labour Government’s intention—and the noble Lord, Lord McNally, has hinted as much today—was quite consistent with what the present Government are doing. Yet the then Home Secretary, who is now my noble friend Lord Reid, said explicitly:

“If, at some future point, any Government were to decide that the time was right to open up that area of work”—

that is, offender management—

“they would have to make the case to Parliament, and Parliament would have the final say”.

He went on to describe it as a,

“double lock meaning that any movement after that will require a vote of both Houses”—[Official Report, Commons, 28/2/07; col. 1024.]

That is something that the present Government have been at pains to avoid.

In addition to this critical procedural issue, my noble friend Lord Reid was also clear about the policy. He said that the 2006 Bill was about “supplementing” the public sector. He said:

“The public sector already has, and will continue to have, a key role to play in the management and rehabilitation of offenders”.

He pledged that the then Government would maintain their,

“sustained commitment to our probation services”,

and would enable,

“specialist providers in the voluntary, charitable and private sectors to supplement—not supplant—the public sector, where appropriate”.—[Official Report, Commons, 28/2/07; col. 1018.]

The Government wanted to increase, not reduce, local accountability.

By no stretch of even a vivid ministerial imagination could these words, or the legislation which they describe justify the interpretation that has been deliberately and misleadingly applied to them. Caliban’s explanation, if I might revert to “The Tempest”, as the Minister has done, slightly modified, could be applied: “O brave new world that has such legislation in’t”.

We should not be surprised. The Lord Chancellor—, like his predecessor, never knowingly understated, but without Ken Clarke’s knowledge, understanding or respect for the legal system or questions of justice—, frequently implicitly criticises the probation service for high rates of reoffending. In the Second Reading debate in the House of Commons, he acknowledged:

“The probation trusts are currently hitting many targets, but there is one simple reality at the heart of all this: reoffending is currently increasing”.—[Official Report, Commons, 11/11/13; col. 665.]

Of course, he chooses, either deliberately or carelessly, to ignore the fact that this is true of those offenders who are not supervised by the probation service—notably those serving short sentences. We applaud the determination to extend supervision to such offenders, but we are deeply concerned at the way in which the Government propose to tackle the problem—a concern made the more profound by the procedure that they have adopted. They have repeatedly refused to disclose the risk register, but have not denied a leak which asserted that there was an 80% risk of an unacceptable drop in operational performance, nor have they contradicted HM Chief Inspector of Probation’s warning of,

“an increased risk to the public”.

This is no way to treat a matter of high political salience and public concern, a professional and dedicated workforce, or indeed, Parliament itself.

We are now in a position in which the Government have for months been pressing ahead with their ideologically driven agenda, having made it clear that they have no intention of listening to the views of this House, as expressed in the amendment carried last year. They have ignored the criticisms and reservations expressed by a wide range of bodies, from the service itself to the inspectorate and the Justice Select Committee. The original timetable has been extended because of the difficulties encountered. The Government continue to rely on assertion rather than evidence, and they have signally failed to answer many of the questions their policy has provoked, including 50 posed by the noble Lord, Lord Ramsbotham.

The most telling of their failures is that they have failed to pilot the changes—notably the introduction of the payment by results system. Indeed, they chose instead to halt the pilot in the West Midlands and Staffordshire which involved the probation trust commissioning services and working with external providers. Instead they put their faith and public money into organisations with pretensions of having the capability of delivering any kind of service, from welfare administration to prisons, health to IT, despite repeated evidence of their shortcomings and in some cases highly dubious practices, not least in relation to financial matters. It is to those organisations that the Government wish to consign the management of a service, or more accurately 70% of a service, which has to address the needs of hundreds of thousands of individuals every year as well as the wider community, and which has to measure and deal with the risk to public safety that a fluctuating proportion of offenders represents.

It is this very issue of risk, and the change in risk category that has raised such profound concerns. It is still unclear how the binary system which the Government are hell-bent on creating will work in practice—the more so especially since it would appear there will be no requirement for the community rehabilitation companies to train their staff to the standard of the probation qualifications framework, although the Minister said they might do so if they wish, or indeed to any other specific standard.

Major questions arise about the handling of domestic violence issues, work within prisons and how the system of court reports will work, given that this will remain the responsibility of the probation service although, by definition, many of the 250,000 court reports required every year will be for offenders managed by CRCs, not by the probation service itself.

There is also the question of accountability. In the sphere of offender management, we are seeing the development of the same massive, top-down reorganisation which the Prime Minister promised would not be inflicted on the NHS but which the Government nevertheless imposed. Like the nine massive regions of NHS England, we will have six regions for probation and supervision in England and another in Wales, with 21 CRCs, and little or no co-terminosity with other agencies, notably local government and the police. I hope that Liberal Democrat Peers, who thought they had moderated their partners’ proposals for the NHS, will not allow themselves to be taken for a ride for a second time.

In particular, will the service be subject to local authority scrutiny, like the NHS, at local level, or that of combined authorities where these exist? We need to know just how the tendering process is going, how many areas will have competitive, or any, bidders, how many organisations will be allowed more than one contract and precisely how payment by results will work, both in terms of the percentage of the contract price and the timeframe over which results will be measured, as well as what would constitute a failure in terms of the character and number of repeat offences.

We also need to know what is happening to the current staff. How many do the Government think will opt for redundancy—or have already done so—or fail to secure appointments either to the residual service or to CRCs? Is it correct that the Government announced in the week before last a voluntary redundancy scheme with a budget of £35 million, only to withdraw it last Thursday on the grounds that the money is not available?

The whole House will share, indeed applaud, the Government’s objectives in seeking to reduce reoffending and close the gap into which short-sentence offenders currently fall. The noble Baroness, Lady Browning, was speaking to a House which fully supports everything she said about the desiderata in that respect. I invite the House to support the noble Lord’s amendment in seeking to ensure that this important goal is achieved safely, within a measured—not rushed—timescale, properly costed, in a way which recognises the strengths of the existing service and its staff and preserves a significant element of local accountability. The only way to ensure this outcome is to require parliamentary approval for the changes which the Lord Chancellor has been at such pains to avoid and not accept a government fait accompli.

Before the noble Lord sits down, could he help the House with how he sees the form of the amendment? Does he interpret it as requiring almost any change, of any sort, in the probation service to come before Parliament?

That is not my interpretation of it. That could have been levied against the amendment originally moved by my noble friend, but this amendment makes it clear that we are talking about a national change to the structure of the service, not every individual detail. It is consistent with the description I have already read to the House—quoting Hansard—from the Home Secretary at the time, about the requirement for parliamentary approval for changes of the very kind that the Government are promoting without having sought such approval.

My Lords, this has been an excellent and important debate. The noble Lord, Lord Ramsbotham, said that he wanted a debate on the probation service and he has got one. However, there have been a number of criticisms of the Government’s approach. Among other things, they are said to have delayed but then gone too fast. It is said they have not been sufficiently transparent and that the contract management is not sufficiently secure or not prospectively secure. I will deal with some of these criticisms without wearying the House too much. I have dealt with them in a number of meetings and documents sent to noble Lords but, for the convenience of those who may not have had those documents—or had a chance to read them—I will try and summarise some of our answers.

Since my noble friend Lord McNally committed to placing documents in the House Library, we have deposited 12 sets of letters, papers and publications about the reforms, including most recently all the draft contracts for the new CRCs. The noble Lord, Lord Ponsonby, raised the question of how CRCs will interact with statutory and non-statutory partnerships. We published a consultation paper about this and all his concerns are now reflected in the operating model.

Many Peers raised concerns about big private providers outmanoeuvring smaller charities. We have made changes to the number of contract areas to allow for smaller bidders; placed a cap of 25% on market share; engaged with potential tier 2 and tier 3 organisations so that 800 are now registered; and we have decided to accept the suggestion made by my noble friend Lord Marks to set up an independent institute.

It is said that the approach has lacked transparency and there was reference in debate to the risk register. Both this and the previous Government have agreed that there is a strong interest for the Government in having a safe place to formulate and develop policies for extensive reform. To remove that space and to challenge and manage risks internally would risk damaging confidence in the programme and could lead to a culture where risks are not even raised and properly managed through fear of the implications of doing so.

I should emphasise that the risk register is by no means a list of things that will happen, only of things that might conceivably happen if we take no action and we should therefore plan for and mitigate the possibility of happening. That is simply good management. The risks are given an inherent score: the score when the risk is first identified without any controls or mitigations in place, and a current score with controls in place. A target score is also agreed. Risks are reported weekly to the departmental board, and throughout the course of the programme Ministers have been kept closely informed of emerging risks and actions being taken to mitigate them. Programme officials regularly meet Ministers—on average twice weekly—on various aspects of the programme, as well as having close and regular informal contact with Ministers’ private offices.

It is said that there is a lack of clarity about the costing of these reforms. The Cabinet Office and Her Majesty’s Treasury are full members of the programme board before the reforms and attend regular monthly meetings. They have been closely involved with our decision regarding the launch and the invitation to negotiate. The Chief Secretary to the Treasury approved the payment mechanism, the launch of the invitation to negotiate and the outline business case. The programme has been given Treasury approval.

The question of scrutiny was raised. How, the question was effectively asked, will we make sure that the new system is open to public and parliamentary scrutiny? The reform system will be regulated and held to account through a combination of independent inspection, audit and commercial account management. Her Majesty’s Inspectorate of Probation will inspect services delivered by both the National Probation Service and contracted sectors. NOMS will have the right to audit CRC delivery, and the CRC contracts will also allow the National Audit Office access to CRCs’ financial systems where public reassurance is needed.

The audit schedule in the draft contracts, which the NAO approved and commented that it provides far-reaching audit powers, provides NOMS with wide powers of access to information, IT premises and personnel, including emergency audit. The NAO scrutinises public spending on behalf of Parliament and holds government departments to account for the way they use public money by reporting the results of its audits direct to Parliament.

There was a suggestion that staff were not being well managed and that some of them, at least, were reporting to individual noble Lords that they were unhappy with the process of transition which will inevitably happen. We have transition managers working with every probation trust, whose sole role is to be the link between the MoJ and trusts. There are weekly updates sent to probation chiefs; weekly teleconferences are held with senior leaders; testing and pilots of key elements of the programme have been and are taking place; and experts from probation have been seconded to the programme to add their valuable experience.

In addition, the new heads of CRCs have now been appointed and meet on the MoJ’s sounding board, which is helping to manage the transition process. The Secretary of State corresponds regularly with probation chiefs both through letters and via video message. Ministers and the programme management regularly visit trusts and maintain informal contact with probation chiefs throughout the programme.

The noble Lord, Lord Ponsonby, referred to engagement with the unions. I did grimace slightly because there has been agreement and complete liaison with the unions. Officials meet regularly with the unions—every two weeks—through a specially established forum devoted to discussing the reforms. Alongside the meetings with the forum—which is our formal engagement body—fortnightly meetings with the unions have taken place since September to look specifically at our pensions proposals. Trade union officials have attended a number of workshops, training sessions and meetings with programme officials to look at specific elements of our reforms. Informal discussions have also taken place on a regular basis and negotiations over the national agreement on staff transfer always took place with a departmental representative in attendance. Ministers have regular meetings with unions every eight to 12 weeks.

The matter of local partnerships was raised. As was already indicated, CRCs will be contractually required to participate in the relevant statutory partnerships. I indicated in my opening remarks that Section 5 of the Crime and Disorder Act 1998 means that CRCs will be designated as a responsible authority and will have a contractual duty to co-operate with MAPPA. They will be expected to have in place arrangements that reflect the importance of safeguarding and promoting the welfare of children, and will be designated as board partners for child safeguarding boards. They will be required to support the NPS to ensure the continued effective implementation of both the statutory and probation victim contact schemes and associated statutory responsibilities. They will also have to follow the established good practice in relation to discretionary victim contact, including identifying and providing key information about offenders to NPS staff so that they can communicate this to victims and, if applicable, allow them to make representations. The same goes for non-statutory partnerships, such as the IOM with the police: CRCs will be contractually required to engage in non-statutory partnerships with working arrangements aimed at protecting the public from harm, safeguarding vulnerable adults or potential victims of domestic abuse and promoting service integration. I hope that I can allay any anxiety that may exist in that respect.

There has been, ironically, little criticism of what this Bill is about. The through-the-gate idea—to change the system to allow there to be support through the process of resettlement and beyond—is generally accepted as highly desirable. That is what this Bill is about; it is accepted that it is not just about cutting costs. I know there was some concern that perhaps there might be some perverse incentive for sentences to send people to prison whom they might not otherwise have sent there—a point made by the noble and learned Lord, Lord Woolf, at an earlier stage—because they would then have the benefit of the support that would now be provided. My answer to that very understandable concern is that, of course, no judge or magistrate would send someone to prison unless they had passed the custody threshold. Furthermore, there are a number of sentencing options by way of community orders which would give offenders the same benefits of support without actually having to send them to prison. The judiciary and Sentencing Council are very much engaged and aware of that possibility, so I hope I can allay that fear.

It is difficult to understand why there is apparently—so the noble Lord, Lord Ponsonby, says—discontent among the staff, because a deal has been negotiated with the unions. We have been undertaking negotiations with probation trade unions and the employers’ representatives over a national agreement for staff transfer that will protect the terms and conditions of staff transferring to the CRCs or the NPS. Probation trade unions and the Probation Association, which represents trusts, ratified the national agreement on staff transfer on 29 January 2014. Trade unions have also withdrawn all local trade disputes.

The national agreement offers a very good deal for existing staff, and demonstrates our commitment to fairness by going much further than we are legally required to do. Staff will transfer to the new probation structures with their existing terms and conditions in place. The additional protections set out within the agreement include a guarantee of employment in the new probation structures from 1 June 2014, no compulsory redundancies for a period of seven months following share sale and an enhanced voluntary redundancy period of up to 67.5 weeks. Alongside our negotiations, the programme has put in place a dedicated consultative forum for effective engagement with trade unions and employers’ representatives. We will continue to engage closely with trade unions and employers throughout the transition to the new probation structure.

I want to deal with the anxiety about the pace of these reforms. It is said that they have been going too quickly, although we say that that is not the case. We have drawn significant learning from earlier initiatives and have tested aspects of the reform programme. For example, our experience with the payment-by-results pilots at Her Majesty’s Prisons Peterborough and Doncaster has increased our confidence about designing robust payment-by-results contracts that drive the required behaviours and help generate improved value for money.

There is a suggestion that we should have piloted the scheme further. I gave this answer to the noble Lord, Lord Beecham, across the Dispatch Box when he asked a question. There is a difficulty about providing different sentencing options in different parts of the country. Nevertheless, we of course accept that it is important to pilot the system to make sure that it will work, and that is what we have done. We have engaged extensively with probation trusts to ensure that their operational expertise informs our approach. Twelve trusts have helped shape our policy approach through five test gates, including trusts that have built significant expertise in payment-by-results approaches and new delivery arrangements in preparation for participating in our planned community payment-by-results process. The pilots tested operational systems, including the risk assessment tool and live systems testing.

The noble Lord, Lord Ramsbotham, asked: what is the risk if the market fails and some contract package areas do not have sufficient interest? What will the Government do if no bidder meets the required standard? We have a robust and diverse market: 30 bidders passed the prequalifying process in December 2013, representing more than 50 organisations of various types, including the private sector and potential mutuals. I am sure that a number of noble Lords will be well aware of the explosion of interest and innovation available in all sectors to deal with the apparently intractable problem of rehabilitation. It is most important that we should be able to take advantage of that.

Approximately one-third of the bidders include a potential mutual organisation within their consortium. We have a minimum of three bidders in each contract package area. We will work intensively with bidders during the competition to help them understand our requirements, engage with local stakeholders and understand the issues in their CPAs. We are assessing bids on both quality and price, not simply seeking the lowest-cost provider. In the long term, the best value for money for the taxpayer will come through having rehabilitation providers who can deliver reductions in reoffending.

In the event that there are no acceptable bids in a CPA, we do not need to award contracts in that area. One of the benefits of our approach is that the CRCs will be operating as going concerns in public sector ownership before share sale, and it will be possible for the CRC to continue in public sector ownership for longer if needed, pending further competition.

There was a suggestion that we had not consulted sufficiently. The list of those consulted is very long, so I am very surprised that that was suggested. It included probation trusts, members of the public, voluntary and charitable organisations, local stakeholders, the judiciary, offenders, victims and the market, including private, PCS, trust fund and social innovators and police and crime commissioners.

There are many other points that I could make in response to noble Lords’ comments. I hope that the House will forgive me if I do not answer every point, although answers are contained in all the documents that we have provided.

I am concerned about the nature of the amendment and—to put it this way—at the very least the ambiguity as to what will be required in terms of going before Parliament for even a relatively slight alteration. If that is right—and this is a last-minute amendment—such a provision could bring the probation service to a grinding halt. I know that that is not the intention of the noble Lord but I am concerned that that might be the effect.

I said in my opening remarks that there was a prize to be had in this Bill. We should not lose sight of that prize. Support for offenders released from short sentences, as part of our wider plans to reform the supervision of all offenders in the community, will change the lives of thousands of people. It will reduce the 85,000 crimes that those in this group commit within a year of leaving custody. It will also provide long-overdue support to some of the most vulnerable people in our criminal justice system, who are affected disproportionately by mental health issues, by lack of education or training and by drug and alcohol abuse.

We need to get on with the changes in the Bill to make that difference. I come back to the recent speech of the Lord Chief Justice that I quoted in my opening remarks, in which he said that,

“we simply do not have that luxury of time. The financial imperative that is part and parcel of the recasting of the State does not give us the time to take such an approach”.

We have not rushed this change. However, we must move on. Most of all, we have the need to reduce the number of victims who suffer as a result of our current reoffending rates. I hope that the House will give its support to Commons Amendment 1, just as it gave its strong support to the Bill at Second Reading.

My Lords, I am grateful to the Minister for the care that he has taken to sum up. I am very grateful to all those noble Lords who have contributed to this short debate. If I may start at the very end of the Minister’s comments, the last thing that we want is to bring the probation service to an end. Probation is far too important a public service to be risked in that way. The very last thing that any ex-Chief Inspector of Prisons would want is a failure to continue to improve the provision of proper services to offenders that enable their rehabilitation into the community and the prevention of reoffending, whether that involves the Prison Service or the probation service.

I listened with great care to all the points the Minister made. If there is just one point I would like to make—because it comes up over and over again and it is inaccurate—it is that to cite the Peterborough experiment in this situation is false. It is not a probation experiment: it is a prison and it is not funded by the companies that are taking the risk. It is funded by social impact bonds. Therefore, it is entirely false to cite it. I wish that that would stop because it distorts arguments.

I accept that there are all sorts of processes that the Minister has described: meetings, papers, discussions and so on. However, that has not been the same from the start. Those who were concerned about the morale and the worry of members of the probation service should think back. The loss of trust and good will in the Government—those were two of the saddest words I heard used by the probation service as to what had happened—was because, in the early stages, and from June onwards, they were not kept informed. Indeed, there were several complaints, when members of staff were allocated either to the National Probation Service or community rehabilitation companies, that they had not been told why they had been allocated. As a soldier, I find that man management is something that has been drummed into me, and I do not regard that as man management. It is extremely unfortunate if you lose the support of those whom you are seeking to lead.

I agree that it is essential that we do something about the reoffending rate, but I am afraid that what the Minister has outlined to the House is, as I said at the beginning, long on aspiration but short on confirmation that this is achievable. I remember a definition of “affordable” that I was taught a long time ago by a former head of the Army for whom I worked. He said, “There are two definitions of affordable: can you afford it, and can you afford to give up what you’ve got to give up in order to afford it?”. I submit that a whole raft of structures dealing with offenders has enabled the probation service to reduce the reoffending rate among the people for whom it is currently responsible, who are being put at risk by what is happening now. I do not believe that the victims and the others to whom the Minister referred can afford to have the degree of public protection reduced.

As the Minister said, the Bill is not really about the subject that we have been discussing. He mentioned the 20 hours in this House and the 26 hours in the Commons on the subject, but in fact those debates were not about this subject; virtually every one of those hours was filled with amendments and questions put down by Members seeking information. They were not deliberate discussions introduced by the Government to explain what was going on. That is why, as I say, the purpose of my amendment is to try to ensure that this particular measure, which has such important public protection involvement, should be given true scrutiny by all the people who feel so passionately about what could and should be done for both offenders and their victims.

I fear that, despite all that has been said, I do not believe that this House could responsibly allow the Bill to go forward at this stage, because too much is still unknown about its actual delivery possibilities. Therefore I wish to test the opinion of the House.

Motion on Amendment 1 agreed.

Motion on Amendments 2 to 17

Moved by

2: Clause 3, page 3, line 2, leave out “an officer of a provider of probation services” and insert “a person”

3: Clause 3, page 3, line 5, at end insert—“( ) In relation to a person subject to supervision requirements under this section following a sentence of detention under section 91 of the Sentencing Act, the supervisor must be—(a) an officer of a provider of probation services, or(b) a member of the youth offending team established by the local authority in whose area the offender resides for the time being.( ) In relation to any other person, the supervisor must be an officer of a provider of probation services.”

4: Clause 5, page 5, line 13, at end insert—

“( ) In subsection (2)(c), omit “if the offender is under the age of 18 years at the date of release,”.”

5: Clause 6, page 5, line 41, leave out “264A” and insert “264B”

6: Clause 6, page 6, line 13, leave out “After that section” and insert “Before section 265 (and the italic heading before it)”

7: Clause 6, page 6, line 14, leave out “264A” and insert “264B”

8: Clause 6, page 6, line 31, at end insert—“( ) In section 249(3) (duration of licence)—(a) for “sections” substitute “section”, and(b) for “and 264(3)” substitute “and sections 264(3C)(a) and 264B”. ( ) In section 250 (licence conditions), omit subsection (7).”

9: Clause 7, page 7, leave out lines 44 and 45 and insert—“(4) “The supervisor”, in relation to the offender, must be—”

10: Clause 10, page 9, line 7, at end insert—“( ) in subsection (4), for “that period” substitute “the automatic release period”,”

11: Clause 12, page 10, line 14, leave out subsection (2) and insert—“(2) In section 64 (release on licence: drug testing requirements)—(a) in subsection (1)(a), omit “for a trigger offence, and”, (b) in that subsection, at the end insert “, and(c) the Secretary of State is satisfied of the matters in subsection (1A).”,(c) after that subsection insert—“(1A) Those matters are—(a) that the misuse by the person of a specified class A drug or a specified class B drug caused or contributed to an offence of which the person has been convicted or is likely to cause or contribute to the commission of further offences by the person, and(b) that the person is dependent on, or has a propensity to misuse, a specified class A drug or a specified class B drug.”,(d) in subsection (2), after “conditions” insert “mentioned in subsection (1)(b)”, and(e) in subsection (3), after “specified Class A drug” insert “or specified Class B drug”.”

12: Clause 12, page 10, line 21, leave out subsections (4) and (5)

13: Clause 13, page 11, line 16, leave out “imposed on the offender’s release” and insert “mentioned in subsection (1)(b)”

14: After Clause 13, insert the following new Clause—“Drug testing and appointments: offenders transferred within the British Islands(1) Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) is amended as follows.(2) In paragraph 8 (restricted transfers from England and Wales to Scotland)— (a) in sub-paragraphs (2)(aa) and (4)(aa), for “and 64” substitute “, 64 and 64A”, and(b) at the end insert—“(7) Sections 64 and 64A of the Criminal Justice and Court Services Act 2000 (release on licence etc: drug appointments), as applied by sub-paragraph (2) or (4) above, have effect as if any reference to an officer of a provider of probation services were a reference to a relevant officer as defined by section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.”(3) In paragraph 9 (restricted transfers from England and Wales to Northern Ireland)—(a) in sub-paragraphs (2)(aa) and (4)(aa), for “and 64” substitute “, 64 and 64A”, and(b) after sub-paragraph (5) insert—“(5A) Sections 64 and 64A of the Criminal Justice and Court Services Act 2000 (release on licence etc: drug appointments), as applied by sub-paragraph (2) or (4) above, have effect as if any reference to an officer of a provider of probation services were a reference to a probation officer.””

15: Clause 15, page 13, line 23, at end insert “, such as restorative justice activities.(7A) For the purposes of subsection (7)(b) an activity is a restorative justice activity if —(a) the participants consist of, or include, the offender and one or more of the victims,(b) the aim of the activity is to maximise the offender’s awareness of the impact of the offending concerned on the victims, and(c) the activity gives a victim or victims an opportunity to talk about, or by other means express experience of, the offending and its impact.(7B) In subsection (7A) “victim” means a victim of, or other person affected by, the offending concerned.”

16: Clause 23, page 19, line 6, at end insert—“( ) So far as sections 20, 21 and 22 confer power to make provision amending or otherwise relating to Schedule 1 to the Crime (Sentences) Act 1997, they also extend to the Channel Islands.”

17: Clause 23, page 19, line 13, at end insert—“( ) The power conferred by paragraph 19 of Schedule 1 to the Crime (Sentences) Act 1997 (power to extend to Isle of Man) is exercisable in relation to any amendment of that Act that is made by this Act.”

My Lords, in moving Amendment 2, I shall speak also to Amendments 3 to 17 and 19 to 25. Although this is a relatively large group of amendments, most make minor or technical changes to the Bill and I will try to deal with them as concisely as I can.

I will start with the most noteworthy amendments in this group. Amendment 15 focuses on restorative justice. As I said earlier, I know that there is support across the House for the important role that restorative justice can play both in helping victims to move on from crime and in rehabilitating offenders. The amendment makes explicit that rehabilitative activities carried out under a community order, suspended sentence order or post-sentence supervision can include restorative justice. Noble Lords may already have spotted that this amendment is very similar to one originally tabled by the noble and learned Lord, Lord Woolf. Having debated the issue once again in the other place, the Government have been persuaded that it would be helpful to make explicit in the Bill our intention that rehabilitative activities can include restorative justice activities. This reflects the Government’s desire to see much greater use of restorative justice in appropriate cases. I pay tribute to the noble and learned Lord for first raising this issue and I hope that your Lordships’ House will welcome this statutory foundation for the use of restorative justice as part of the rehabilitation offered to offenders.

Amendments 2, 3, 4, 9 and 22 also pick up on an issue first raised in your Lordships’ House, this time by my noble friend Lady Linklater. Together the amendments deal with young offenders who are imprisoned for serious offences as a juvenile but are then released after they have turned 18. The Bill provides that this group of offenders, like others released from short sentences, will receive 12 months of supervision after release. The amendments make it clear that this supervision can be delivered either by an adult probation provider or by a youth offending team—YOT—as the Bill already provides for detention and training orders. There will be circumstances where a YOT may be better placed to deal with the needs of a young adult offender and it is absolutely right that the Bill should give flexibility to allow for this. In that way we can avoid the cliff edge of a sudden transition from youth to adult services. Again, I pay tribute to my noble friend for having championed this issue during the Bill’s original passage through the House.

Amendments 11, 12, 19 and 20 focus on drug testing requirements imposed as part of licence or the new post-release supervision period. Currently, an offender released on licence can be required to submit to compulsory testing in cases where the offender’s conviction offence is on a trigger list. The trigger offences are those crimes that are most likely to be linked to misuse of drugs. They include theft and fraud offences as well as drug offences.

Since the introduction of the Bill, we have looked in more detail at the evidence on drug use by prisoners in the Government’s Surveying Prisoner Crime Reduction survey. It suggests, as one might expect, that there is a strong correlation between prisoners who report use of class A or class B drugs before sentence and those who go on to reoffend. However, it also suggests that using the trigger offence as a filter omits around half of all prisoners who are class A drug users and the majority of those who are class B drug users. In short, where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender who is abusing drugs commits an offence that this time happens not to be on the trigger list, there is no testing power either after they are released from custody.

These amendments replace the trigger offence threshold with a new, two-limbed test: first, the offender has a propensity to misuse specified class A or B drugs; and, secondly, the misuse by the offender of any specified class A or B drug caused or contributed to any offence of which he has been convicted, or is likely to cause or contribute to the commission of further offences. That mirrors the threshold in place for the drug appointment requirement also contained within the current Bill. It continues to provide safeguards to ensure that testing requirements are not imposed in inappropriate cases.

Amendments 14, 16, 17, 21, 24 and 25 collectively allow for the transfer of the post-sentence supervision period created by the Bill to Scotland, Northern Ireland and other UK jurisdictions. Currently, terms of imprisonment and associated licence periods after release can be transferred to and from UK jurisdictions under provisions in the Crime (Sentences) Act 1997. That can happen on a restricted basis, where the sentencing provisions of the exporting jurisdiction apply in the receiving jurisdiction, or it can happen on an unrestricted basis, where the offender transfers on to an equivalent sentence in the receiving jurisdiction’s legislation. This gives flexibility for both the exporting and receiving jurisdiction to agree a transfer in the way that is most appropriate for an individual case.

These amendments make the necessary changes to the law to allow for post-sentence supervision, the supervision default order that is available as a sanction for breach of that supervision and the new drug appointment requirement to be transferred to other UK jurisdictions. The Government have worked very closely with the Scottish Government and the Northern Ireland Executive to agree the detail of these amendments. We have agreed with both Administrations that we will work with them in advance of commencement to review the existing operational guidance that exists on transfer of sentences. The existing position, where all transfers are agreed between the relevant jurisdictions, and where jurisdictions retain the right to refuse transfers, will continue.

Finally, Amendments 5 to 8, 10, 13 and 23 are technical changes to the clauses of the Bill that deal with consecutive sentences, drug appointments and fixed-term recall. They simply make clarifications to the way in which the clauses are drafted rather than any changes of substance. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.

My Lords, I am happy to confirm the Opposition’s support for these amendments and I am grateful to the Minister for his explanation of them.

Motion agreed.

Motion on Amendment 18

Moved by

18: Clause 24, page 19, line 25, leave out subsection (2)

My Lords, Amendment 18 removes the privilege amendment that your Lordships’ House added to the Bill before sending it to the other place. I beg to move.

Motion agreed.

Motion on Amendments 19 to 25

Moved by

19: Schedule 1, page 21, line 26, leave out paragraph (a) and insert—“(a) the Secretary of State is satisfied of the matters in subsection (2A),”

20: Schedule 1, page 21, line 30, at end insert—“(2A) Those matters are—(a) that the misuse by the offender of a specified class A drug or a specified class B drug caused or contributed to an offence of which the offender has been convicted or is likely to cause or contribute to the commission of further offences by the offender, and(b) that the offender is dependent on, or has a propensity to misuse, a specified class A drug or a specified class B drug.”

21: Schedule 3, page 27, line 23, at end insert—“Crime (Sentences) Act 1997 (c. 43)A1 Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) is amended as follows.A2 (1) Paragraph 6 (effect of transfers: preliminary) is amended as follows.(2) In sub-paragraph (2)(b), for “and possible recall following his release” substitute “, possible recall following release and any supervision default order”.(3) In sub-paragraph (2)(c), for “and possible recall” substitute “, possible recall and any supervision default order”.(4) In sub-paragraph (3), at the end insert—“(c) in relation to a person who is supervised under section 256AA of the 2003 Act, being ordered to be committed to prison or detention for failure to comply with a requirement imposed under that section or by a supervision default order;(d) in relation to a person who is supervised under section 256B of the 2003 Act, being ordered to be detained for failure to comply with a supervision requirement imposed under that section.”(5) In sub-paragraph (4), at the appropriate place insert—““supervision default order” has the meaning given in section 268(1) of the 2003 Act;”.A3 (1) Paragraph 8 (restricted transfers from England and Wales to Scotland) is amended as follows.(2) In sub-paragraph (2)(a)—(a) for “264A” substitute “264B”,(b) after “267B of” insert “, and Schedules 19A, 20A and 20B to,” and(c) after “104” insert “and 106B”.(3) In sub-paragraph (4)(a)—(a) for “264A” substitute “264B”,(b) after “267B of” insert “, and Schedules 19A, 20A and 20B to,” and(c) after “104” insert “and 106B”.(4) In sub-paragraph (6)(f), for “paragraphs (b) and (c)” substitute “paragraph (c)”.(5) At the end (after the sub-paragraph (7) inserted by section (Drug testing and appointments: offenders transferred within the British Islands) of this Act) insert—“(8) The supervision provisions, as applied by sub-paragraph (2) or (4), have effect—(a) as if any reference to something listed in the first column of the Table in sub-paragraph (10) were a reference to whatever is opposite it in the second column of that Table,(b) with the modifications in sub-paragraph (11), and(c) in a case falling within section 106B of the Powers of Criminal Courts (Sentencing) Act 2000, with the further modifications in sub-paragraph (12),(and see also paragraphs 8A, 19A and 19B).(9) In this paragraph “the supervision provisions” means—(a) sections 256AA to 256E of, and Schedule 19A to, the 2003 Act,(b) the provisions of the 2003 Act mentioned in section 256AC of, and Schedule 19A to, that Act, as applied by that section and that Schedule, and(c) section 106B of the Powers of Criminal Courts (Sentencing) Act 2000.(10) The references mentioned in sub-paragraph (8)(a) are—



Substituted reference

Crown Court

Justice of the peace

Local justice area

Magistrates’ court

Officer of a provider of probation services


Young offender institution

High Court of Justiciary

Sheriff court

Local government area within the meaning of the Local Government etc (Scotland) Act 1994

Sheriff court

Relevant officer as defined by section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993


Young offenders institution provided under section 19(1)(b) of the Prisons (Scotland) Act 1989

(11) The modifications mentioned in sub-paragraph (8)(b) are—(a) section 256AA(2)(b) of the 2003 Act has effect as if it also referred to a licence under the Prisons (Scotland) Act 1989 or the Prisoners and Criminal Proceedings (Scotland) Act 1993,(b) section 256AC(7)(b) of the 2003 Act has effect as if for “the Secretary of State” there were substituted “the Scottish Ministers”,(c) paragraph 2 of Schedule 19A to the 2003 Act has effect as if—(i) sub-paragraph (d) referred only to section 215(1) and (2) of the 2003 Act, and(ii) sub-paragraph (e) were omitted,(d) paragraph 3 of Schedule 19A to the 2003 Act has effect as if, after sub-paragraph (7), there were inserted—“(7A) Section 218(4)(a) applies as if for the words “has been notified by the Secretary of State” there were substituted “is satisfied”,(e) paragraph 7 of Schedule 19A to the 2003 Act has effect as if—(i) in paragraph 7(1), for “the supervisor must refer the matter to the enforcement officer” there were substituted “the supervisor may cause an information to be laid before a sheriff court in respect of the person’s failure to comply with the requirement”, and(ii) sub-paragraphs (2) to (5) were omitted, and(f) paragraph 12(3) of Schedule 19A to the 2003 Act has effect as if for “makes a community order or suspended sentence order” there were substituted “imposes any other sentence”.(12) The further modifications mentioned in sub-paragraph (8)(c) are that section 106B of the Powers of Criminal Courts (Sentencing) Act 2000 has effect as if—(a) in subsection (4), for paragraph (b) there were substituted a reference to an officer of a local authority constituted under the Local Government etc (Scotland) Act 1994 for the local government area in which the offender resides for the time being, and (b) after subsection (3) there were inserted—“(3A) Sections 256AA(3) and (6), 256AB(1) and 256E(2) have effect as if the references to the Secretary of State were references to the Scottish Ministers.”A4 After paragraph 8 insert—“Restricted transfers between England and Wales and Scotland: further provision about supervision default orders“8A (1) This paragraph applies if—(a) a person’s supervision is transferred to Scotland under paragraph 4 of this Schedule by means of a restricted transfer or transferred back to England and Wales under paragraph 7 of this Schedule, and(b) at the time of the transfer, or transfer back, a supervision default order is in force in respect of the person.(2) The supervision default order has effect as if, at the time of the transfer or transfer back, it specified the relevant area in which the person resides or proposes to reside in the new jurisdiction (rather than a relevant area in the jurisdiction from which the person is transferring).(3) The court acting for that relevant area in the new jurisdiction may amend the supervision default order to specify that area.(4) In this paragraph—“relevant area” means—(a) in England and Wales, a local justice area, and(b) in Scotland, a local government area within the meaning of the Local Government etc (Scotland) Act 1994;“supervision default order” has the meaning given in section 268(1) of the 2003 Act.”A5 (1) Paragraph 9 (restricted transfers from England and Wales to Northern Ireland) is amended as follows.(2) In sub-paragraph (2)(a)—(a) for “264A” substitute “264B”,(b) after “267B of” insert “, and Schedules 20A and 20B to,” and(c) after “104” insert “and 106B”.(3) In sub-paragraph (4)(a)—(a) for “264A” substitute “264B”,(b) after “267B of” insert “, and Schedules 20A and 20B to,” and(c) after “104” insert “and 106B”. (4) Omit sub-paragraph (8).(5) At the end insert—“(9) The supervision provisions, as applied by sub-paragraph (2) or (4), have effect—(a) as if any reference to something listed in the first column of the Table in sub-paragraph (11) were a reference to whatever is opposite it in the second column of that Table, and(b) with the other modifications in sub-paragraph (12).(10) In this paragraph “the supervision provisions” means—(a) sections 256AA to 256AC, 256D and 256E of the 2003Act, and(b) section 106B of the Powers of Criminal Courts (Sentencing) Act 2000.(11) The references mentioned in sub-paragraph (9)(a) are—



Substituted reference

Crown Court

Justice of the peace


Local justice area

Magistrates’ court

Officer of a provider of probation services

Young offender institution

County court

Lay magistrate


Petty sessions district

Court of summary jurisdiction

Probation officer

Young offender centre

(12) The other modifications mentioned in sub-paragraph (9)(b) are—(a) section 256AA(2)(b) of the 2003 Act has effect as if it also referred to—(i) a custody probation order or licence under Part 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160) (N.I. 24), and(ii) a licence under the Northern Ireland (Sentences) Act 1998, Part 3 of the Life Sentences (Northern Ireland) Order 2001 (S.I. 2001/2564 (N.I. 2)) or Chapter 4 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)),(b) section 256AC of the 2003 Act has effect as if subsections (4)(c), (5) and (10) (provision for supervision default orders) were omitted, and(c) subsection (7)(b) of that section has effect as if for “the Secretary of State” there were substituted “the Department of Justice in Northern Ireland”.”A6 (1) Paragraph 15 (unrestricted transfers: general) is amended as follows.(2) In sub-paragraph (4A), for “This paragraph has” substitute “Sub- paragraphs (3) and (4) have”.(3) After sub-paragraph (4A) insert—“(4B) A person who is subject to a period of supervision of a type or length which could not have been imposed on an offender in the place to which the person has been transferred is to be treated for the relevant purposes as the receiving authority may direct.(4C) In sub-paragraph (4B), “the receiving authority” means—(a) in relation to a person transferred to Scotland, the Scottish Ministers,(b) in relation to a person transferred to Northern Ireland, the Department of Justice in Northern Ireland, and(c) in relation to any other person, the Secretary of State.” A7 After paragraph 19 insert—“Service of process issued in Scotland19A (1) Section 4 of the Summary Jurisdiction (Process) Act 1881 (service in England and Wales of Scottish process etc) applies to any process issued by a court in Scotland under the supervision provisions.(2) “The supervision provisions” means the provisions listed in paragraph 8(9), as they are applied by paragraph 8(2) or (4).Electronic monitoring in Scotland19B (1) Section 245C of the Criminal Procedure (Scotland) Act 1995 (remote monitoring), and regulations under that section, apply in relation to the electronic monitoring of compliance with a curfew requirement in a supervision default order imposed under the supervision provisions as they apply in relation to the remote monitoring of compliance with a restriction of liberty order.(2) “The supervision provisions” means the provisions listed in paragraph 8(9), as they are applied by paragraph 8(2) or (4).”A8 In paragraph 20(1) (interpretation), for the definition of “supervision” substitute— ““supervision” means—(a) supervision under an order made for the purpose, (b) supervision under a detention and training order, (c) in the case of a person released from prison on licence, supervision under a condition contained in the licence,(d) supervision under section 256AA of the Criminal Justice Act 2003 (supervision after end of sentence), including supervision under that section as applied by section 106B of the Powers of Criminal Courts (Sentencing) Act 2000, or(e) supervision under section 256B of the Criminal Justice Act 2003 (supervision after release of certain young offenders serving less than 12 months).””

22: Schedule 3, page 27, leave out lines 33 to 35 and insert—“( ) For paragraph (i) substitute—“(i) post-release supervision in accordance with a licence under section 31 of the Crime (Sentences) Act 1997 or section 250 of the Criminal Justice Act 2003 of a person sentenced to detention under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000, section 226, 226B or 228 of the Criminal Justice Act 2003 or section 209, 218, 221, 221A or 222 of the Armed Forces Act 2006;(ia) post-release supervision under section 256B of the Criminal Justice Act 2003;(ib) supervision under section 256AA of the Criminal Justice Act 2003 of a person sentenced to detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 209 of the Armed Forces Act 2006;”.”

23: Schedule 3, page 29, line 20, leave out “264A(1)” and insert “264B(1)”

24: Schedule 3, page 29, line 23, at end insert—“15A(1) Section 302 (execution of process between England and Wales and Scotland) is amended as follows.(2) After “under—” insert—“section 256AC(1) or (3), section 256C(1) or (3),”.(3) Omit the “or” before “paragraph 6(2) or (4)”. (4) After “Schedule 12” insert “or“paragraph 8(1) or 10(5) of Schedule 19A,”.”

25: Schedule 7, page 37, line 25, leave out “and 13” and insert “, 13 and (Drug testing and appointments: offenders transferred within the British Islands)”

Motion agreed.