Offender Management Bill

Public Bill Committee, 16 January 2007.

Gerry Sutcliffe (Labour, Bradford South)

On a point of order, Mr. Bayley. I want to clarify a point about written evidence that was raised last week. The question was what constitutes written evidence for the purposes of this Committee. I shall begin by clarifying that this is a parliamentary matter, not a departmental one, but I am happy to offer my assistance to the Committee. The power of Public Bill Committees to receive written evidence is set out in Standing Order No. 84A. What constitutes written evidence for the purposes of the Committee is any submission sent to the parliamentary scrutiny unit that is relevant to the topic of the Bill and which the Chair of the Committee agrees to accept as evidence. Submissions accepted through that process are then formally known as written evidence to the Committee and will be made public and subject to parliamentary privilege.

Having explained the process, I should like to return to the question of the disc of evidence from an informal oral evidence session organised on 10 January that was handed to me last week. I am pleased to return the said disc and a transcript of its contents. The transcript, I am afraid, needs some further work to identify the speakers and so I will it pass back to the hon. Member for Hornchurch, with an extra copy so that he does not lose it and so that it does not get filed away. I am sure that he will make the relevant additions. Clearly we are happy to accept the spirit of what is on the disc, and I am sure that appropriate amendments will be made and that the disc will then be presented back to the Committee by the route that I have suggested. I hope that that meets with the Committee’s approval.

James Brokenshire (Conservative, Hornchurch)

Further to that point of order, Mr. Bayley. May I thank the Minister for arranging the transcript and for dealing with the disc appropriately? We will obviously revise the transcript, which he has now handed back to us. May I put on record my thanks to the Minister, his officials and team for arranging that for the benefit of the Committee as a whole?

Hugh Bayley (Labour, City of York)

It is nice to begin this morning’s proceedings with an act of theatre, complete with the casting of discs across the Committee Room. As Chairman, I rule that the Minister is right. The matter of determining what constitutes written evidence is a matter for Parliament, and it rests with the Chair of the Committee. The disc and transcript currently have purely informal status, but if a member of the Committee were to submit the transcript or other documents to the scrutiny unit, it would be brought to the attention of the Chair, who would determine whether it is formal, written evidence.

Clause 3

James Brokenshire (Conservative, Hornchurch)

I beg to move amendmentNo. 11, in clause 3, page 3, line 11, leave out ‘The Secretary of State’ and insert

‘Probation Boards and Probation Trusts.’.

Hugh Bayley (Labour, City of York)

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

No. 12, in clause 3, page 3, line 25, at end insert—

‘( ) Arrangements under subsection (2) shall not apply in respect of functions specified in section 1(1)(a), 1(2)(a) and 1(2)(c).’.

No. 25, in clause 3, page 3, line 35, at end add—

‘(6) In carrying out their functions under this Part, and in particular in providing any assistance to courts and to the Parole Board, providers of probation services and their officers shall ensure that such assistance does not give rise to any conflict of interest between their obligation to give such advice impartially and the financial interest of the provider.’.

James Brokenshire (Conservative, Hornchurch)

First, may I put on record the apologies of my hon. and learned Friend the Member for Harborough, who unfortunately cannot be with us today? As you have said, Mr. Bayley, the proceedings in Committee have involved some theatre so far. We now move on to something that is certainly not theatre, but is one of the key aspects of the Bill and the way in which it is intended to operate and function. It is the concept of contestability or, as others have variously put it, competition, privatisation or the greater involvement of non-state providers in the provision of probation services.

With your permission, Mr. Bayley, I should like to have a fairly wide-ranging debate on this amendment in the knowledge that it may impact on our ability to have a stand part debate later on. It is probably appropriate to put these issues on record now in the context of the amendments, as I hope that it will assist the Committee to highlight the relevant issues and matters that pertain to the clause.

This morning, I shall focus on three issues: the lack of robust justification for the model to be adopted pursuant to clause 3; the lack of clarity about the Government’s intended model; and how services would operate in practice as a consequence of that model and of the structure and provisions of the clause.

I turn first to the way in which the Government have sought to justify their approach. In the now infamous speech to a captive audience at Wormwood Scrubs on7 November, the Home Secretary exhorted the probation service to

“Never forget that your job is to protect the public and what the public wants is outcomes: less crime, safer streets, not an outdated ideological debate about inputs and who delivers them.”

There is some irony in that, because a debate about ideological input is precisely what the Government seem to want to provoke, particularly on their own side. If the Home Secretary was trying to say that we need to examine all appropriate models for achieving improved safety, reduced reoffending and greater rehabilitation by sharing responsibility with a range of partners and players, then, as we have said consistently, we welcome his conversion to our way of thinking. The problem is that the Home Secretary is hung up on who delivers the inputs. From our reading of clause 3, it is clear that he wants to be that person.

There is little doubt about the top-down, centralist model that cedes control to the Home Office rather than devolving authority to the local level, where more tailored solutions could be provided. Clause 3 provides a system under which contracts will be awarded centrally by the Home Secretary or, at best, through the regional offender managers. The Coalition on Social and Criminal Justice, which brings together organisations from the public and voluntary sectors involved in reducing crime and protecting the public, has said that

“The current commissioning and contestability model proposed for NOMS affords a major role to the regional level, with ten regional managers responsible for commissioning services for offenders in prison and the community. A wholly regional approach to commissioning would run counter to the aim shared by Government and the coalition of strengthening multi-agency partnership working via local area agreements and LSPs. There is a significant risk that a commissioning system involving only regional commissioning via the regional offender managers may not be sensitive enough to the specific needs of the localities...It would be a perverse outcome if NOMS replaced the current patchwork of voluntary local engagement and partnership with a top-down, albeit regional, system.”

The coalition certainly has concerns about the proposed structure against a backdrop of general acceptance that services are best provided locally, closer to offenders’ families, where they are most likely to be successful. One of the issues that came out in the evidence that we received at the informal session, which I hope we will be able to share formally with the Committee in due course, was that having offenders close to the community, monitored in the community, supported by the community and with their networks, families and other aspects of rehabilitation within the community setting improves the likelihood that outcomes will be positive.

So what are the Government trying to do? The best that I can come up with is the following, which the Home Secretary said on Second Reading:

“I agree that much of such work is better commissioned locally, but that is not the question. The question is whether it should be provided only by a local monopoly. We are creating the circumstances whereby it can be commissioned locally, but its commissioning will not automatically depend on an existing local monopoly, which will both commission and provide the service that the commissioners are commissioning. We are opening it up. In some cases, it will not be provided locally; it will be provided in a larger area. However, for the foreseeable future—for the next several years—the specific management of offenders, particularly serious ones, as opposed to intervention to provide educational programmes, will be done by the probation service.”—[Official Report, 11 December 2006; Vol. 454, c. 589.]

The Minister has chipped in and said, “Very, very clear,” but I wish that I could agree with that reading of the quote. My reading is that it is not about local commissioning; it is about local monopolies and local services, but some services will not be local. It is about change, but there will not be any change in a number of areas.

Last week, the Minister criticised me for asking for more details, but against the backdrop of the Home Secretary’s comments, it is entirely reasonable for the Committee to ask for further detail. Although I am sure that he was quite clear about what he was trying to say on Second Reading, I suspect that members of the Committee and many other people may be confused and unclear as to his precise intentions. I hope that we will be able to shed some light on them, if not achieve agreement, during the course of this debate.

We will analyse the detail of the clause shortly, but it is hard to detect any clarity of vision on how the outcomes will be improved by the clause. Many questions need to be answered, and I hope that the Minister will answer them in his response. How have the Government arrived at this model as against any other model that they may have considered? It is clear that they could have explored an arrangement within the existing construct to try to promote competition and involve the voluntary sector to a greater degree. They have decided that the current model does not work for some reason, even though they introduced it as recently as 2001. It would be helpful for the Minister to explain why he feels that the existing model is flawed.

When I analyse the apparent structure, at least as it been explained in isolation from the Bill, I see some striking similarities to the structure that is used in the health service, in which services at the local level are commissioned by primary care trusts, which are directed and controlled at the regional level by strategic health authorities, which in turn follow the targets, policies and diktats of the Department of Health. Given the parlous state of NHS finances and the pressure that that is causing, I hope that my understanding of how the model is intended to operate is incorrect. If I have correctly understood and explained the situation, it is a strange model to have chosen.

It is interesting that the Government decided on the model proposed in this Bill and did not seek to change the existing model, which was adopted only six years ago, even though there is a need to put a greater emphasis on partnership. Will the Minister explain why the greater partnership option has not been adopted? On Second Reading, various hon. Members mentioned the Scottish model. As the Minister knows, it involves the adoption of new community justice authorities, bringing together local authorities, probation organisations, the Prison Service and key partners in the voluntary sector to reduce reoffending, with the target of a 2 per cent. reduction by March 2008. The structure is in its infancy, with operations due to be launched in April, so it would be premature to reach any conclusions on its operation.

It is interesting to note that the Government have dismissed the Scottish model completely—that is how I have taken their comments—without explaining why they believe it to be flawed or why the model in the Bill will better advance the issues that they have said underpin the Bill. On Second Reading, the Home Secretary said:

“On the Scottish model, first, I have no vote in what the Scots decide. Secondly, from time immemorial, the Scots have had a completely different legal system, based on Roman law rather than case precedent. Thirdly, I do not always agree that the Scottish Executive choose the best way even for Scottish conditions.”—[Official Report, 11 December 2006; Vol. 454,c. 587.]

We are celebrating 300 years of the Union today, but my reading of what the Home Secretary said is that apart from a basic statement that “You are wrong, but I cannot tell you that you are wrong,” the only substantive point that he made was the distinction between Roman law and binding precedent. That does not seem to be closely linked to probation, the monitoring of offenders and making communities safer. While it might be an interesting and arcane legal point, I do not see what it has to do with the issue before us or the differences that make the Home Secretary and, I am sure, the Minister, believe that the Scottish model is inappropriate.

In our attempt to understand the Government’s approach, it would be helpful to have more detail on why the Scottish model, which relies on partnership arrangements, is not perceived as appropriate for England and Wales and why the model set out in the Bill is believed to be so much better. The Home Secretary might be right in his dismissive approach to the model, but it is appropriate and reasonable for the Committee to ask what models the Government have considered other than the one set out in the clause, and why that one was felt to be the best.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Gentleman for giving way, because I do not wish to stop his flow. I will go into detail about the Scottish model in my response, but is he saying that he is in favour of it? It does not allow for commissioning, so I am not sure whether he supports commissioning.

James Brokenshire (Conservative, Hornchurch)

As I said on Second Reading, I am certainly in favour of the greater involvement of the voluntary and other sectors in the provision of services. I raise the issue so that we can understand why the Home Office and the Government have dismissedthe Scottish model, and the Minister might well wish to explain that in his response. It is important that we should raise the matter in trying to understand the Government’s thought process on how the arrangement in the Bill was reached. The Committee needs to understand why the Scottish model, which is intended to deliver a 2 per cent. reduction in reoffending, is considered inappropriate. We want to put our concern about that issue on record and to debate it this morning.

Clause 3 deals with the commissioning and the provision of services. It appears to offer a number of different models for the provision of probation services, which the Home Secretary can adopt at his discretion. The models are, first, that he will make provision for probation directly, by himself or through his staff and other officers, by virtue of subsection (4); secondly, that he will contract services directly with one named party; thirdly, that he will contract a named party to provide services, and that party would then commission its own services through subcontracting arrangements; and fourthly, that he will arrange for services to be provided by another person in an unspecified way, other than by way of contract, as outlined in subsection (2).

In other words, clause 3 gives the Home Secretary complete discretion to use any way that he decides, which seems extremely wide-ranging. In Committee last week, it was noted that Parliament has been concerned about allowing powers in a Bill that are so broad and wide that it is difficult to see from the Bill where they end and what direction will be taken. Those issues are not clearly addressed in the clause. There are questions that need to be carefully considered about whether the wide-ranging rights that the Secretary of State will have are appropriate and whether there should be more structure in the Bill, including restrictions on how the Home Secretary can operate.

For example, the Home Secretary could choose one single option for all probation services, or he could go for a mix-and-match option. Despite the description of how service provision is envisaged, he has wide-ranging discretion, and service provision could be changed fundamentally without reference to Parliament. There are questions about the accountability of Ministers in connection with the provision of such services, and I would be grateful if the Minister were to explain how those questions will be addressed. I know that this issue was raised on Second Reading, when the Home Secretary gave a fairly clear assurance that this measure is not intended in any way to be a means of obfuscation or of avoiding liability, questioning or accountability. It is important for us to explore this area further to determine how the Government intend to ensure that that type of protection is provided.

At Wormwood Scrubs, the Home Secretary, when discussing the current levels of service provision that are contracted out, said that such services will go further and compete a much larger proportion of probation service work. He said:

“But I want to go further. So from April 2008, once we have passed the necessary legislation we will compete services with an annual value of up to £250m — on a compulsory basis if necessary.”

Now, £250 million is quite a specific figure forthe contract value that is envisaged. Therefore, the Minister must have a good idea of the nature of the services that would be “competed”, to use the Home Secretary’s term. I hope that the Minister can share with the Committee the nature of these competed services, and the mechanism by which they would be competed.

The fundamental problem with the arrangement envisaged in clause 3 is that it would be top-down, which is why we have sought to clip the Home Secretary’s wings by tabling amendment No. 21, which states that contracts should be given at the local level, rather than being given out centrally.

David Kidney (Labour, Stafford)

The hon. Gentleman meant amendment No. 11 when he said amendment No. 21. In tabling the amendment, are Her Majesty’s official Opposition rejecting wholesale the structure proposed by the Government, or are they putting down a marker for there to be flexibility to commission services locally? If the latter, does subsection (3)(c) not already provide the flexibility that they seek?

James Brokenshire (Conservative, Hornchurch)

Subsection (3)(c) does not provide the flexibility highlighted by the hon. Gentleman, because the whole concept is for contracts to be provided from the centre, which seems to undermine the whole purpose. I have already used the quote from the Coalition on Social and Criminal Justice, which states that commissioning was likely to come “at best” from the regions rather than from the local level. I do not agree with the hon. Gentleman’s analysis.

We have fundamental issues with clause 3 in its entirety, mainly because of the vagueness and uncertainty that I alluded to this morning. We have tabled the amendment because of a shared understanding that it is best to provide contracts at the local level. However, I will wait to see how the Minister responds to the debate and to the amendments before drawing my conclusions.

The Government need to explain more clearly why the proposed contractual structure will not be more costly and bureaucratic and what the glue is that holds the service together in a co-ordinated way. Merely relying on a contractual construct with a nexus of enforceable contractual liabilities, but without a pivot around which the service operates, would risk significant problems in how high quality services will be delivered, measured and maintained. It is important for the Minister to give the Committee, to the extent that he is able, greater clarity on how sustainability will be delivered and maintained within the provisions of clause 3. The Home Secretary appears to be talking about moving to a dynamic and fluid situation of contracting, which raises a whole host of issues about what that might mean.

Subsection (3)(a) concerns co-operation with various parties, and the question is how that will be enforced. How will potentially competing parties be obliged to share information? In that more dynamic situation,it is reasonable to assume that competing parties may not necessarily be too willing to share information, which they may regard as commercially sensitive, as compared with “sensitive” in the context of the running of the probation service. Shedding some light on dealing with such a situation would be beneficial, and there are also the associated cost concepts.

Subsection (3)(a) talks about the requirement to co-operate with

“other providers of probation services or persons who are concerned with the prevention or reduction of crime or with giving assistance to the victims of crime”,

which is, quite rightly, a broad and wide-ranging duty for how services would be provided and for ensuring a joined-up approach. If we look at how contracts are drawn up, we have seen the Government become the victim in the context of computer contracts. Getting the definitions, the standard and type of service and what is envisaged right is extremely difficult, particularly in a dynamic situation of change, where a person might need to liaise with multiple parties. It is not unreasonable to suggest that it may be difficult to draft such provisions appropriately.

What risk does the Minister think there is of contracting parties renegotiating, on the basis that the services that they were expecting to provide have been changed or extended because of a dynamic situation? That is a crucial aspect of how a contractual service would function.

Gerry Sutcliffe (Labour, Bradford South)

I follow the hon. Gentleman’s logic in respect of future contractual arrangements, but his point also applies to the probation boards’ existing contracts, in which the same difficulties arise.

James Brokenshire (Conservative, Hornchurch)

The distinction is that at present the probation boards act as an anchor or focal point, a sort of glue, to use an analogy. As I understand it, the clause is moving towards a more dynamic contractual situation, in which there is no certainty that a probation trust, if established, will remain in existence. The contracts could ebb and flow around the system. The point is writ much larger in this context because of the proposal continually to change any existing arrangements. That would become more of an issue if the model were to be adopted.

On the continuity of service, what would happen if a company or other provider went bust or became insolvent? Although there are provisions in the schedules for the transfer of property and employees, that deals only with one aspect of what could be a very difficult problem. The most direct parallel is the rail industry, which has a complicated network of contracts. There is a concept of rail administration, which contains various provisions to deal with situations in which a company or provider gets into financial or other difficulties that mean that it can no longer provide the services.

It is important to understand what will happen if things go wrong—if, perhaps due to circumstances that are unconnected with its probation activities, a provider is suddenly unable to continue to provide services. The logic may be that the Secretary of State will step in, but we need to understand what would happen in such circumstances, because there could bea multiplicity of contracts and subcontracts. Those problems need to be considered properly and appropriately to ensure that if a fully contractual model is adopted, continuity is maintained.

Subcontracting is a key aspect of how the construct will work. The Minister indicated that, in respect of the involvement of the voluntary sector, he did not want a panoply of contracts that would be managed by the Secretary of State; he seemed to want to subcontract to a body that would further subcontract to other parties. How would that work in a situation of continual change? Would the services be contracted to just one third party, or could there be fourth and fifth sub-parties? The element of control obviously dissipates the further the subcontracting goes.

The Bill refers to third parties, but that could be read in different ways. Does it mean a specific third party, or does it go further than that? What element of control does the Secretary of State envisage being exercised through a contract or other mechanism to ensure that the delivery of high-quality services at subcontractor, or further subcontractor, level? What happens to the subcontracts if the head contractor—the main party with whom the Secretary of State has contracted—disappears or if the contract is terminated because the Home Secretary decides that it is not performing adequately?

Small voluntary sector bodies may be involved in providing services through that mechanism, and how the contracts are drawn up could potentially expose them to greater risk. How might they be protected? Is it envisaged in those circumstances that the Home Secretary could novate those subcontracts up to a new provider, or indeed to himself? That is a detailed point, but it is quite crucial in service provision to ensurethat continuity is maintained in ever-changing circumstances.

It is also important to understand what the contract’s intended duration is. If a provider is intending to invest, then a contract needs to be of a suitable length to ensure, from a financial perspective, that it can work. It must be sustainable and it must be attractive to a service provider. Will the Minister help the Committee by setting out what is currently envisaged regarding the awarding of contracts, and in what circumstances he intends to tender? What requirements does he envisage placing on contracting parties in the voluntary sector? We talked at length on Second Reading—we will surely come to it in this debate, too—about the importance of involving the voluntary sector at a local level, to ensure that we have a localised service to improve the outcomes that I already alluded to. Does the Minister envisage the tender process somehow obliging or requiring contracting parties to involve the voluntary sector in providing maintained services?

Will the Home Secretary reserve change of control provisions to cover a takeover situation, whereby ownership of a contracting party may be changed to a person that he subsequently considers to be unsuitable? Would contracts be capable of assignment or novation in these circumstances? Indeed, would they be personal, such that they could not be transferred to another party? Again, it is important to understand the contractual nexus and what the Government intend through this framework that they are setting out.

Another crucial aspect in ensuring both service delivery in which the public is protected and the maintenance of high quality standards is the performance criteria. How will these be set, and what measurements will be put in place to ensure that a particular party performs? How will they be measured, and who will monitor their performance? What sanctions would be imposed for breach? Obviously, the ultimate sanction might be termination or the taking away of a contract, but does the Minister yet envisage financial penalties to ensure that particular contractors, of whatever nature, perform according to the tender and contract documents?

I have raised an extremely important concern about continuity of service and the maintenance of qualified and skilled probation staff. The Home Secretary assured the inmates of Wormwood Scrubs that

“good probation services and probation officers have nothing to fear and everything to gain in this new world”.

Part of that is down to investment in education, training and continued professional development. How will the cost of training, and investment in continuing training, be met? That issue needs to be clearly explained in the context of the Home Secretary’s brave new world and the Bill’s framework. Will that cost be shared in future? Who is to bear it? Is it intended that it should form part of a contracting company’s bid, in that it should feature in what it says in its tender documents about how it will retain highly motivated, qualified and supported staff?

Concerns have also been expressed about the risk of services being cherry picked, in that if the services that are perceived to be low risk or easier to deliver were contracted out, highly qualified and experienced probation officers and other staff might be attracted to those services, where they would be well remunerated. What would the impact of that be on the services that remained within a probation trust or were provided directly by the Secretary of State through some other mechanism?

That type of approach seems to have been envisaged by the Home Secretary in his comments about the maintenance of certain services “within the probation services”, which I quoted earlier. That prompts the question, what did the Home Secretary mean by “probation services” in that context, given the revised construct that we are debating and the fact thatclause 7 envisages the abolition of local probation boards?

The Home Secretary also said that one of the key aims of the reforms is to provide every offender with a seamless package of supervision and support from the start of his sentence to the end, overseen by a single offender manager working off a single case record shared with everybody in the system. That, too, raises the issue of the potential multiplicity of providers. We will come on to probation trusts, which are not, it seems, to be arranged on a geographical basis—a number of them might have to compete with each other.

How will the single system be delivered, how will the end-to-end management be operated in that sort of framework, and what sharing of computer systems and computer records will be necessary? Will compulsory adoption of standard IT packages and systems across the whole of the probation service be required, and how will the individualisation of support be achieved? NAPO has highlighted the fact that there are some parallels with unpaid work and community service. It says:

“Last year 55,430 people were sentenced to Unpaid Work...and they completed 461,000,000 hours of work. Many placements were environmental, decorating and cleaning, including litter removal and graffiti clearance. However, over 35% were individual placements. These placements have involved working in charity shops, working for churches, maintaining gardens for the elderly, supporting adults with learning difficulties, working in day centres for the elderly and for the homeless, working in a wildlife centre, working at a lifelong learning centre, working at a retreat for disadvantaged children and working with Oxfam.”

I use that quote because it highlights clearly the different types of community service that might be provided and the fact that 35 per cent. of placements were individualised. The Home Secretary talks about trying to provide an individualised service, but that might be difficult to achieve in practice. Certainly NAPO has expressed concerns about the risk that individualisation might be watered down; the fact that the Criminal Justice Act 2003 increased the minimum group size to six, which might militate against an individualised service; the need to ensure that offenders are re-educated so that they stand as good a chance as they can of getting jobs, getting back into the community and stopping reoffending; and the need to provide the facilities for all those things to be achieved. Does the Minister agree with those concerns? What measures are intended to ensure that the standard of provision on matters such as community service is maintained?

The issue of potential conflicts of interest also needs to be examined and addressed, which is why we have tabled amendments Nos. 12 and 25. Concerns have been expressed about the same party being responsible for the provision of services and the writing of reports, because it might be encouraged to support its own services and generate business in that way. We need to address that important issue head on to ensure that justice is seen to be done and that there is integrity within the service. In the interests of justice and the confidence of the system as a whole, it is important to put that in the Bill.

Three more agencies spring to mind, the first of which is the Prison Service. Subsection (4) states that the Home Secretary has the power to provide services and envisages that prison officers and prison employees may be involved in carrying out those services. The explanatory notes state:

“In most cases, it is anticipated that the Secretary of State will make arrangements with others to deliver probation services but this makes it possible for prison staff, for example, to deliver probation services in the community. This could be helpful in terms of bridging the gap between custody and the community.”

The question that obviously arises is what role is envisaged. Is it envisaged that there will be an increasing role for the Prison Service in probation, rather than the other way around?

Gerry Sutcliffe (Labour, Bradford South)

Could be.

James Brokenshire (Conservative, Hornchurch)

If the Minister is saying that it is basically a free-for-all, it is an interesting comment about the discretion that is being allowed. It is that sort of detail that is appropriate.

Gerry Sutcliffe (Labour, Bradford South)

I have been listening to the hon. Gentleman with great interest, and I hope to respond to all of his points. It is not a free-for-all. The objective is to cut reoffending rates, to protect the public and to make sure that we have a system that works. We do not want to stifle innovation. When I say that it could be, it depends on what is put to the commission as the best way to achieve the objective of reducing reoffending.

James Brokenshire (Conservative, Hornchurch)

That is an interesting indication of the mindset. The Minister has suggested thatthe commissioners, whoever they may be, could commission services directly with the Prison Service itself. I would be interested to know what discussions he has had with the Prison Governors Associationand the Prison Officers Association. He seems to be envisaging a step change in the manner in which the services are provided. In fact, all probation services could ultimately be provided by the Prison Service, if that is the fluid environment that he seems to be talking about.

Gerry Sutcliffe (Labour, Bradford South)

I do not want to concentrate too much on that. I just give it as an example of what innovation could come forward. I certainly have no plans for the Prison Service to take on all the probation work. We want the Bill to enable thinking outside the existing boxes and to tackle the important issues of reoffending rates and the better management of offenders in our communities.

James Brokenshire (Conservative, Hornchurch)

I certainly hear what the Minister has said about the desire that underpins the provision, but there is a huge amount of uncertainty for the probation service, its employees and officers as to what the future might hold for their work of ensuring that the public are protected. The last thing that anyone wants to see is qualified probation officers and staff leaving the service because they do not know where it is going or whether they will get the necessary back-up and support. It is essential for morale that we maintain the continuity of service and do not lose experienced people. It would be damaging to the provision of services and to the attempt to rehabilitate people and cut reoffending if we were suddenly to lose a lot of qualified staff because of a lack of clarity and certainty.

I note what the Minister has said about looking outside the box and thinking outwards. However, the Home Office does not seem to know where it is going and does not have a sense of purpose or direction in telling outside bodies what the changes might mean. It is interesting that the Minister does not seem to have a problem with that, but I will let him respond to the point and provide what clarity he can—we will listen intently.

I recently visited Belmarsh prison. Nobody in the Committee will be surprised to learn that I was struck by the need to focus on basic skills and the employability of offenders. One of the fundamental causes of crime and reoffending is the fact that offenders drop out of the system and cannot find employment and get their lives back together. The failure to provide basic numeracy and literacy skills, and the social exclusion that that creates, must be addressed. Steps must be put in place to ensure that we cut reoffending and, ultimately, cut crime and make our communities safer places.

I was interested to note that Belmarsh has a relationship with a local college to ensure that training is provided within the prison environment to give prisoners basic or vocational skills to help them back into work and prevent them from reoffending. It was explained to me that the help continues afterwards—the link is maintained once an offender leaves prison, which is an important model and provides consistency in rehabilitation.

That highlights the role of the learning and skills councils, which commission various services for the probation system and prisoners. What flexibility will the National Offender Management Service and the learning and skills councils have jointly to commission end-to-end management in attempting to cut reoffending and to rehabilitate offenders? The Home Secretary said in his comments on the contracting arrangement that educational provision is key. I know that the Minister and the Home Office have criticised the probation service for the lack of involvement with outside bodies and of commissioning voluntary organisations, but a lot of contracts are given to outside bodies, particularly those for educational services through the learning and skills councils. It would be beneficial if we could understand how the councils have been factored into the revised construct in the key matters of education, basic skills, basic vocational training and cutting reoffending.

The final agency that I will mention is local government itself. How is it intended to fit in? How will the arrangements in the Bill fit in with, for example, crime and disorder reduction partnerships or local area agreements? The Local Government Association has made a relevant point in its briefing on the Bill. It believes that a local approach offers the best prospect of improved offender management. Any new arrangements must be locally accountable and properly integrated into local area agreements and local strategic partnerships. LAAs need to be developed in particular as the primary means of achieving joined-up working across agencies within and beyond the criminal justice system. On the basis of the bare framework in the clause, it is difficult to understand how that might be achieved.

A number of organisations have raised concerns about how everything will join up given the problems with contracting. Such problems could be addressedin a suitable system, but how would they fit in withthe local government arrangements and local area agreements? The Prison Reform Trust has made a similar point:

“There is considerable scope to amend the Bill to allow for the increased involvement of local councils and an expansion of their responsibilities. Local area agreements could be used to develop preventive work and community solutions to crime, on the one hand, and to resettle ex-prisoners in the community on the other. Locally accountable chief officers and strengthened Probation Boards will also provide a sound basis for closer links between Probation and the courts. Such a link is essential in building the trust and understanding necessary to win the confidence of magistrates and judges in the delivery of community sentences.”

That point relates to the structure that has been adopted.

In many other aspects of criminal justice, the Home Office has set a great deal of store by local area agreements and the delivery through local government of local services. I am sure that we will hear more of that in the next week with the relaunch of the respect agenda and further proposals that may result from it. We are closely considering the involvement of local bodies and local government as we develop our ideas on the delivery of services and local accountability, which would allow a local community to hold people to account.

The top-down approach to contracting, with the Home Secretary at the top, militates against the delivery of services at the local level, local commissioning and local accountability. That underpins the comments from the LGA and the Prison Reform Trust and re-emphasises the need for local service provision. We are not getting that through this clause, which is the central point behind our lead amendment. We still have significant concerns about what the clause will mean for the delivery of services, cutting crime and reoffending and the protection of the public.

Hugh Bayley (Labour, City of York)

Having listened to the hon. Gentleman’s remarks, and bearing in mind that the amendments are broad, I expect that we will do without a clause stand part debate, unless I hear in any further contributions the suggestion that there are matters that ought to be raised that do not fall within the scope of the amendments. If I do not hear such suggestions, I will move to clause stand part on a formal basis.

Neil Gerrard (Labour, Walthamstow)

This clause is, in many ways, the key clause in the Bill, because subsections (2) and (3) allow competition in and privatisation of any part of the probation service. I am not suggesting that the intention is to privatise the whole probation service, but fundamentally that is what subsections (2) and (3) allow. As the Minister knows, those provisions have caused concern to a considerable number of Government Members. This was evident on Second Reading, and I am sure it will be evident again when we get to the later stages ofthis Bill.

I have listened to the hon. Member for Hornchurch speaking for the Opposition and I am still not entirely clear what he is proposing. He seems to be arguing that we should throw away the Bill completely yet he still seems to be in favour of a contractual model, provided that the contracting is done at a local rather than a national level. I am not necessarily convinced of that either. If one moves to a model that is fully contractually based, it does not seem to me to make a great deal of difference whether that is done at a local or national level.

Gerry Sutcliffe (Labour, Bradford South)

Before my hon. Friend goes on to the substance of his speech, I want to reflect on what was said on Second Reading about what the hon. and learned Member for Harborough said when he addressed the conference of the National Association of Probation Officers. He gave the impression that the Opposition were going to oppose the Bill and the spirit of the Bill. It might help the Committee if that point were now reiterated.

Neil Gerrard (Labour, Walthamstow)

It is certainly my impression that the hon. Member for Hornchurch was arguing that contracts should happen at local level rather than at national or regional level. When I look at other aspects of public service that have gone down that road— where trusts operate contracts for services at a local level—I cannot say that that encourages me to believe that this is the road we should be going down for probation. When we have had such a model for other services, that has not led to a great degree of accountability. In fact, I think exactly the opposite is the case.

Parts of this clause do not seem to cause any difficulty. There is the requirement, for example, on co-operation with other providers of probation services. References have been made already to the Scottish model where co-operation is at the centre of the structure. The Minister may well say to us later that he does not believe the Scottish model will translate perfectly into an English context because we have to deal with a different criminal justice system. I suspect that that may well be true; we cannot simply transplant the Scottish model across. What is at the heart of the Scottish model is a co-operative structure rather than a contracting structure. That concept could be translated across, whether we take the model as a whole or not.

There has been much discussion around the Bill, as there was on Second Reading, about the involvement of the voluntary sector. Some of that discussion has been rather misleading. It has been presented as if those of us who are unhappy with the contracting arrangements are somehow opposed to the involvement of the voluntary sector when that is simply not the case. We know that there are good examples, some of which were quoted on the Second Reading, of work that is being done now by the voluntary sector. This includes work that is done in education and skills training, the provision of accommodation, work to deal with alcohol and drug problems and voluntary mentoring—a whole string of services are provided through voluntary sector agencies.

Unpaid work is organised and supervised by the probation service but the main sources of that unpaid work are the voluntary sector and local authorities. That is where much of that work takes place. I am worried about private sector involvement because there is a considerable danger that if private companies were involved in dealing with unpaid work and it were not based in the voluntary sector, it would become a source of cheap labour substituting for what should be properly paid work.

It has been suggested that in recent years the probation boards have been backing away from dealing with the voluntary sector and cutting the amount that they spend. If one simply considers the budget of the probation boards, that is true, but it is very misleading. What has actually happened is that money that used to go through the probation boards for accommodation, learning and skills and drug rehabilitation has been top-sliced from the budgets. Other parts of the budget—property management and IT, for example—have been centralised at Home Office level, rather than going through the local probation boards. To conclude that the boards have been backing away from involvement with the voluntary sector simply as a result of looking at their budgets is very misleading. At present, the figures are transparent and it worries me that that transparency would be lost if there were private sector involvement.

It is very difficult to get to the bottom of what goes on in private prisons and to know what the costs are, as the spending is not transparent. If one asks the Home Office about the contract prices charged by the private sector companies running prisons, the answer is usually that the figures cannot be disclosed because they are matters of commercial confidentiality. I do not want that lack of transparency to spread to the probation service.

Amendment No. 18 refers to race equality and we can learn lessons by considering what has been happening on that issue in the private sector of the prison service. The annual report of Her Majesty’s chief inspector of prisons a couple of years ago expressed as a general matter of concern that privately managed prisons were well behind public sector prisons in establishing effective systems to grapple with issues of race and diversity. The amendment is important, because on the evidence of what has happened in the prison service, there would be increasing concern about the issue if there was more private sector involvement in probation.

The argument for major alterations to a structure that has existed only since 2001 when the national probation service was set up is that they are necessary to improve performance and to reduce reoffending; but there is no clear evidence that the structural changes are necessary to achieve those aims. The Home Office performance reports on the probation service in the last year or two have said that the probation service is performing pretty well—not perfectly, but one would not expect that. Achieving targets in this area is always going to be extremely difficult. Probation officers have to deal with very difficult and, in some cases, very dangerous people. They are not easy to deal with or to make decisions about. I would not like to have the responsibility of doing the job, with the possibility that my name might be all over the national press if I made an error of judgment in an individual case, but that is what we are asking probation officers to do every single day of the week. However, there are a set of performance measures and the last report on good enforcement measures said that 91 per cent. were enforced within 10 working days in accordance with the national standards. Compliance targets were being reached, and the proportion of appointments that the offender attends was being measured. In the analysis of high-risk cases, the target was to complete 90 per cent. of harm analyses and risk management plans; that was being exceeded between April and September 2006, the last period for which we have figures. For unpaid work, the number of completions was 6 per cent. over the target. There is also measurement for drug treatment and testing orders, and one can go on through the report and quote a stream of statistics showing that the service is achieving the targets set.

One of the targets that is not there is reoffending. There has not been a target specifically set on reoffending, although a lot has been said about reoffending rates. Who is responsible for reoffending rates is a complicated issue. It is not simply the probation service that does what has to be done over what is happening on reoffending. The probation service does not deal with every single person who has been in and out of prison. Many other people and agencies are involved in trying to deal with reoffending.

Despite some of the statistics being bandied around, the reoffending rates for people who have been through the probation service compare very favourably with those for people who the probation service has not dealt with. There was an argument on Second Reading, which I am sure that the Minister will recall, about the details of the figures—some of the figures quoted as the reoffending rate for people on probation appeared to include people who had reoffended before they came under the supervision of the probation service. That is hardly a fair comparison.

Gerry Sutcliffe (Labour, Bradford South)

I hesitate to say this, because we might end up with an argument about reoffending rates, butI hope that my hon. Friend is aware that there was and is a dispute between the National Association of Probation Officers and the Department about the figures. A number of meetings have taken place and I hope that they will eventually agree, if possible, on the reoffending rates. The underlying issue is that reoffending rates are still too high, however they are measured.

Neil Gerrard (Labour, Walthamstow)

I know that there is the disagreement about the source of the figures. Nobody is disputing that we need to do more about getting reoffending rates down. The issue is whether structural changes are the way to do it. Are they a necessary part of bringing down reoffending rates? The big question is what is going to be contracted out. If I look at what has happened in the prison service, I see that the easy stuff—the brand-new, newly built prisons, with relatively low-risk offenders—ended up being managed by the private companies. I suspect that things will go that way in the probation service, at least in the early stages, so let us look at some of the work that has to be done through the probation service.

There is the writing of court reports, which are, as intended, there to help courts make decisions, and that needs to be reliable and professional. There is the supervision of people in the community: 130,000 people are now on orders, and the probation service is currently supervising 47,000 people under the multi-agency public protection arrangements, with another 30,000 on orders with conditions that they attend groups such as sex offender treatment and anger management programmes. More than 100 hostels are being operated by the probation service—in a recent case, a private company ran a hostel with rather disastrous results—and there is the enforcement of conditions for people who are on community orders and parole.

I am really not sure where the people or the other organisations are who are supposedly capable of taking over or doing some of that work. Where are the organisations with staff who could write reliable court reports? I suspect the answer is that if private companies thought that they could move into this market, they would not set up and train staff, but poach people from the national probation service. Their offer to people with such experience would be, “Come and work for us. We’ll pay you more. It’ll be better.” That will be the sort of line pitched to those people to get them into employment.

We have seen that happen in other areas of work. I recall when a private company was brought in by my local authority a few years ago to administer part of the local education authority’s work. At the first meeting I went to with people from that private company—I had to deal with them while running part of the council’s services—they sat there and talked to me and my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) about their extensive experience of working with local authorities. They had been poached from those authorities to go and work in the private sector, and exactly the same sort of thing would happen here.

The private companies would certainly not retrain people or provide them with the opportunity to obtain professional qualifications, unless they were forced to. They would simply rely on the public sector to do all that work before creaming off the benefits. I am simply not convinced that the people or organisations are there to deliver without fundamentally ripping off the public sector.

As far as the voluntary sector is concerned, if we look at what organisations have been saying to us—I am sure that other Committee members will have seen the papers from the YMCA and from the organisation in York called Clinks that supports voluntary organisations working with offenders and their families—then, of course, they want to do more of the sort of work that they have been doing.

The Clinks paper clearly states that there are core areas of probation work that it considers that the state should continue to undertake. In particular, it talks about the writing of court reports and parole board or public protection work with high-risk offenders, and it also mentions the potential conflicts of interest that would arise from private and voluntary sector providers. It states that the voluntary sector must be careful not to become, or to become perceived as, another agent of the state. It believes that if that were to happen, it would lose all that is most distinctive and valuable about its work:

“We do not think that a series of competitions in which voluntary and private organisations are pitted against the probation service is the best model.”

That view is reflected in the comments of the YMCA, which has said that it does not wish to be seen as an alternative provider of public services—it wants to do more of the sort of work that it has been doing for several years—but that the Bill places the sector

“alongside others for services to be merely transferred, neglecting the particular contribution that a voluntary relationship has on preventing reoffending.”

Some of the discussion that took place on Second Reading about the role of the voluntary sector ignored much of what that sector is saying. I do not believe that the contractual model is the route that we should be taking. So far as the amendments are concerned, it would be better if we were dealing with probation boards and probation trusts. I would rather have the probation boards that exist now rather than something at a national level, which amendment No. 11 refers to. However, I do not want to go down that road if all that that would mean is that instead of a national service based on contracting everything out, we have a local service based on contracting everything out. That is not the way to go. I have also touched on the possible conflicts of interest to which amendment No. 25 refers.

If we are not going to retain the national service, and if there is going to be change because the Bill will go ahead in some form or other, we need to consider the limitations that will be imposed. Probation officers are really scared about what is going to happen to their jobs. They fear that they will soon face the possibility of having to compete with a private or voluntary sector provider for their own jobs. Once that sort of atmosphere starts to develop inside a service, not only is it bad for morale, but it means that people start to leave—they look for alternatives.

In the past few weeks, I had a conversation with somebody whom I have known for a long time. He has worked in the probation service for 25 years, and he told me that he is getting out. One of his reasons for doing so is that he is worried about the direction in which the service appears to be going as a result of the Bill. We cannot afford for that sort of thing to happen, and we need to be able to reassure people about their jobs. I trust the Minister when he says that he does not intend to privatise everything, but that is no guarantee for the future when we have what we have in the Bill. In dealing with this clause, we have to look for something that ensures that people in the probation service feel that their jobs are safe. Yes; we expect them to deliver and nobody should expect that their job will never change, but we should reassure them that they are going to have jobs and that core probation work will be delivered by the public sector. That is the direction in which we must try to go.

Mark Hunter (Liberal Democrat, Cheadle)

I want to make a number of comments about the clause in general as well as about amendments Nos. 11 and 12.

Clause 3 goes to the heart of the debate. It fundamentally changes the relationship between Government and the probation service, and I want to challenge some of the assumptions on which it seems to be based. Before I do so, may I say that there is complete agreement on both sides of the Committee about the need to reduce reoffending rates? I do not want the Minister—I am sure that he will not do this—or anyone else to interpret our concerns as anything other than genuine attempts to achieve that objective. The difference between us is that some of us are not yet convinced that the proposals in the Bill are the right way to achieve that objective. Who knows? I might be persuaded by the end of the debate.

Amendment No. 11 seeks to return the responsibility that the Bill proposes to give to the Secretary of State to probation boards and trusts, which would give them the ability to make contracts or other arrangements to provide probation. In effect, it would formalise the current position of the probation service. We need to let the probation boards or trusts get on with the job in hand, while accepting that improvement is necessary. The Government argue that contestability, by opening up to new providers, will create more effective case management and better-targeted interventions. However, they are relying on the argument that a regionally, not locally, commissioned probationservice knows the needs of individual areas tocreate better-targeted intervention, which seems counterintuitive. Surely a locally run service would be more in tune with the needs of each individual area.

Locally accountable chief officers and strengthened probation boards will also provide a sound basis for closer links between probation and the courts. That link is necessary to win the confidence of magistrates and judges about the effectiveness of community sentences. Locally commissioned probation services can work closely with the local authority and can use established local strategic partnerships between voluntary groups, local government, and other relevant groups. They can also further develop the local area agreements to allow joined-up working across agencies within and beyond the criminal system. Those links allow the smooth interchange of relevant information that allows the service to decide how, when and if to change existing probation arrangements.

Moving to a nationally planned and regionally commissioned probation service would mean that the ability to tailor the probation service to the individual circumstances and needs of the local area would be lost. It would also create an additional layer of bureaucracy with attached costs. The amendment would let local boards and trusts decide their own level of contracting out, which is a very positive thing, asit will not lead to the total contestability that the Government apparently seek and will not stop co-operation in the way in which I fear. Centralising contestability will cause disruption, whereas localising contracting will not.

By introducing competition into the probation service and creating probation trusts, the Bill will introduce unnecessary disruption into a service which, as other hon. Members have mentioned, was only established in 2000. The Home Office’s own figures show that reoffending rates fell by 2.5 per cent. between 2000 and 2003, which was ahead of expectations and predictions. That fall in reoffending occurred at a time when all the predictors said that reoffending would rise.

As I said at the outset, there are always areas where improvements can be made. We all agree that reoffending rates are too high, but we should be careful not to throw the baby out with the bath water. I want to look at the performance of the probation service against its performance indicators and targets. The performance indicators show that the probation service hit five of its nine targets in 2005-06. Let us look at that performance, which, on the face of it, does not sound too good. However, my contention is that it is better than it seems at first glance. Two of the failed targets relating to the assessment of high risk of harm and prolific offenders were set for the first time that year and were exceeded by April 2006.

The remaining two targets related to drug treatment and testing order requirements for which a target of 4,000 completions had been set and 3,997, or 99 per cent., were achieved, and compliance with supervision, for which a target of 85 per cent. had been set and81 per cent. was achieved. Figures show that enforcement of community penalties has risen from53 per cent. in 2001 to 91 per cent. in 2005.

It is important to note that the professionals involved—the probation organisations including NAPO and the Probation Boards Association—believe that if the clause were enacted as drafted, standards would fall and the quality of supervision would deteriorate. The Minister must address those concerns when he responds to the debate.

We understand that some changes need to be made, but they could be made by encouraging work with the private and voluntary sectors, not through wholesale change that will possibly result in reoffending increasing, the opposite of what we are keen to achieve. If work is organised through a local probation board or trust it would encourage information sharing, co-ordinate co-operation between all the agencies and improve end-to-end management.

As the hon. Member for Hornchurch said, it isworth examining a system similar to that in Scotland, which rejected the idea of competition and opted for the establishment of a statutory duty for prisons and the probation service to consult each other and the voluntary sector on the provision of offender services. The duty to co-operate has been very successful in England and Wales, for example in the youth offending teams and the multi-agency public protection arrangements for dangerous offenders.

Amendment No. 12 specifies that some probation services such as advice to courts, arranging community sentences and supervising those released from prison on licence, cannot be contracted out. At present, the probation service provides nearly 200,000 reports for the courts, including pre-sentence and fast-track reports, which are normally provided on the day.

If the court report function of the probation service were to be privatised there could be—many would argue that there would be—a clear conflict of interest. The person writing the report may work for a company that runs prisons or administers the electronic tagging scheme. In such instances it could be argued that the writer of a court report had a vested interest in the outcome. That might be challengeable in that it would conflict with article 6 of the European Convention on Human Rights, on the right to a fair trial. In evidence to the Home Affairs Committee, and on other occasions, members of the judiciary have pointed out that such a conflict of interest would not be acceptable, and would preclude them from sitting on probation boards or trusts. I ask the Minister to comment on the issues that I have raised.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Gentleman for raising these matters, to which I will return in my response. I want to be clear what is the Liberal Democrats’ position. Is the hon. Gentleman saying that there is no role for the private sector in any of this work?

Mark Hunter (Liberal Democrat, Cheadle)

I welcome the Minister’s intervention. No, of course I am not saying that there is no role for the private sector. I paraphrase the Government’s policy on probation: there is a problem, we must do something, this is something, let’s do this. The Liberal Democrats’ analysis of the Bill is that it may indeed have positive parts, which will improve the sum total of the operation, but we are not necessarily convinced about the entirety of it. I merely take issue with certain parts of the Bill, I hope in a constructive way to which the Minister can respond.

The probation board supervises 133,000 persons on order. To create a profit, private sector providers would logically have to reduce the quality of the service by either decreasing the number of staff involved in supervision or increasing the size of the intensive groups that are dealt with by each person. There are also, as hon. Members referred to earlier, 55,430 people sentenced to unpaid work—community service—at the moment, over 35 per cent. of which are individual placements. The hon. Member for Hornchurch made this point earlier on. One example is work in charity shops. Those placements would almost certainly vanish under privatisation because they are not classed as being cost-effective.

Having addressed some issues specific to the amendments, I conclude by saying that I continue to have concerns over clause 3 in its entirety precisely because I am not yet convinced that it will improve quality or indeed reduce reoffending rates. It seems to me that the Government’s argument for contestability, outlined in the document “Reducing Crime, Changing Lives”, centres around,

“getting the most cost-effective custodial and community sentences, no matter who delivers them.”

It says “the most cost-effective”, not the most appropriate, and that is an important difference.

As evidence for the success of contestability, the Government will cite the four private companies that are already running, I believe, nine of our prisons. When asked whether they have done any research on this matter—in a question by the hon. Member for Stroud (Mr. Drew) to the Minister—they answered that they estimated that the savings would range between 3.5 and 8.5 per cent, in light of what they had already managed to save in prisons. On any interpretation, it seems to me that this is a best guess by Government rather than any comprehensive and conclusive business case.

Although I accept that there is a clear argument for how contestability could increase cost-efficiency, the same is not true of quality. I am trying to make the point that quality of service is every bit as important as the cost-efficiency argument. Based on the non-strategic business case of October 2005, we know that the Government are hoping to save £1.7 billion annually from these changes. That indicates that when deciding to contract out a service, it will be cost and not necessarily quality that will be the absolute priority. As we know, no business case has yet been produced advocating the introduction of market forces into the system and how they would reduce reoffending. It is on that fundamental point that those of us on this side of the Committee are still hoping to receive some reassurance from the Minister when he responds to the debate.

David Kidney (Labour, Stafford)

I want to ask the Minister two questions relevant to amendment No. 11. They are both slightly too long to deal with by way of intervention.

Like other Members, I have read and received a large number of representations from a wide range of organisations and individuals. My judgement is that the centre of gravity indicates that there is a part to be played by a national direction of an offender-management service, including probation. There is a role for regional involvement and, crucially, there is a need for local provision and some commissioning of services. At the moment the Bill tells us about a national contracting system; the explanatory notes, not the Bill, tell us about the regional involvement; and the Bill and the explanatory notes are entirely silent about what the local arrangements will eventually look like. It is that local part that everyone is concerned about.

Many of the briefings that lead me to that conclusion about the centre of gravity talk about the need for reference to the local strategic partnership for local governance. They also refer to the new system of local area agreements for the delivery among a range of providers at the local level. I can see that the Minister would instantly reject putting on the face of the Bill references to LSPs and LAAs as being far too specific. They would not be durable and they would exclude other arrangements that would be relevant at some times in some places.

I found useful the publication by the Probation Boards Association, “Five Principles for a Modern Probation Service” because, instead of the words “local area agreement”, it says that

“it is important that probation should increase its involvement with other local agencies, using common targets and shared resources.”

That is a good general statement of what people want by way of local area agreements. On local strategic partnerships, it says:

“Local governance is central to increased democratic involvement and determination.”

That, too, is a good general comment.

Gerry Sutcliffe (Labour, Bradford South)

Perhaps I can help my hon. Friend, before this point gets lost in my wider response. I refer him to the Local Government Bill, which was introduced on 13 December and is a legislative vehicle for measures proposed in the Department for Communities and Local Government White Paper, “Strong and Prosperous Communities”. It aims to strengthen partnership working by placing a new duty on the local authority and named local partners, including chief constables, police authorities and, more importantly in this context, the providers of probation services, to co-operate with each other in agreeing the relevant targets in the LAA. I shall say more about that later, but that is how the LAA will be involved in the provider role in relation to the probation service.

David Kidney (Labour, Stafford)

I am grateful to my hon. Friend. That answers the questions of hon. Members who have asked about a duty to co-operate—it will come under another Bill. However, will he not consider, instead of amendment No. 11, including a reference in clause 3 to a requirement for local probation services to increase their involvement with other local agencies, for example by using common targets and shared resources where appropriate? That is my first question, and I would say the same about local governance.

The second is on the point made by the. Member for Hornchurch, with which I very much sympathise, about the clause giving far too free a hand to the Secretary of State. That echoes our previous debate, but in another form. I accept the generous and kind words that my hon. Friend will say in a moment, and the assurance that he will give us about the reasonableness of the Secretary of State’s actions. However, I still feel that something is missing. I am not a free marketeer, and I do not necessarily swallow the statement in the briefing from the CBI:

“To achieve better services, a clear purchaser-provider split is vital”,

but the briefing does call for

“a full commissioning and market-management strategy”,

which would, it says, give “a timetable for progress” and enable all parties that want to play a part to get ready to play their parts to the full. That echoes our debate last Thursday about the need for a business plan. Does my hon. Friend plan to publish something along the lines of a commissioning and market-management strategy, which would help to reassure people about what the future holds for them, especially given that we have heard about existing probation officers who are worried about their futures? Would he consider it helpful for there to be a reference in the Bill to the need for a strategy that is updated from time to time?

Gerry Sutcliffe (Labour, Bradford South)

I thank the hon. Members for Hornchurch and for Cheadle and my hon. Friends the Members for Stafford and for Walthamstow for their contributions. They have clearly put a great deal of thought into considering what the Government are trying to do and expressing their concerns. They have asked detailed questions and I shall try to address the issues that they have raised. It is important to set out at the start the context of our discussion on clause 3. I agree that it is fundamental to the direction of the Bill, but I do not accept that it proposes a top-down structure.

It is useful to try to outline the position of each party. The official Opposition agree with the principle of opening up the sector to various providers, but are not happy about the proposed way of doing it and have questions about that. My hon. Friend the Member for Walthamstow, whose stance on such issues I have admired greatly over the years, has no problem. I think that his message is that he sees no role for the private sector in any area of probation work. I am not sure what the position of the hon. Member for Cheadle is, which I suppose is not surprising in the case of the Liberal Democrats. I tried to elicit his views on the involvement of the private sector.

We all agree that the status quo is not good enough in relation to reoffending rates, however we measure them. Something needs to change—that has been the tenor of all the representations that we have received, apart from one. The one organisation that says that the status quo can continue is NAPO, the probation officers’ union. As a former full-time trade union officer myself, I fully respect and understand its position: it wants to protect its members and believes that the change will be detrimental to their opportunities. However, I do not accept the scaremongering about what we are trying to achieve. Our aim is not wholesale privatisation, which was the fear mentioned by my hon. Friend the Member for Walthamstow. It is to ensure that we have the best providers of offender management, whether they come from the voluntary, the private or the public sector.

The Government did not pluck the issue of offender management out of the air. It was carefully considered, which was why in December 2003 we had the Carter report, “Managing Offenders, Reducing Crime”. That is where the recommendation to establish the National Offender Management Service came from, with the intention of introducing end-to-end offender management, on which we all agree. It also recommended the introduction of commissioning and contestability. We have had almost four years of discussion about where we need to be. I agree with my hon. Friend that it is time that probation officers—when we say “probation officers” we include probation support officers, who have different roles and responsibilities—are given certainty about what the future holds. It is important that we consider the issues that have been raised and give them that certainty.

The Government’s fundamental position is that the probation service does not have to do everything that it does now. In fact, it is not consistently achieving what needs to be achieved across the 42 board areas. That is not an attack on the credibility of probation officers: I, perhaps more than most because of how close I have been to the issue in the past six months, have seen at first hand the tremendous work that probation officers do in the extremely difficult circumstances to which my hon. Friend and others have referred. In some cases, they deal with very difficult people who live troubled lives and are dangerous, from whom the public need to be protected.

The hon. and learned Member for Harborough and the hon. Member for Hornchurch keep mentioning the Home Secretary’s speech at Wormwood Scrubs. They do not believe that that environment was appropriate, but they should put that to one side and examine what my right hon. Friend said in subsequent speeches. Nobody would take issue with the fact that we must move forward and that the probation service should not do everything.

James Brokenshire (Conservative, Hornchurch)

The Minister says that negotiation and consideration have been going on for about the past four years. The most recent changes were brought in only in 2001. The fact that it is now 2007 suggests that it became apparent almost immediately that the 2001 changes were fundamentally defective. How was that situation allowed to arise?

Gerry Sutcliffe (Labour, Bradford South)

I shall come to that in the course of my comments.

Clause 2 gives the Secretary of State responsibility for ensuring sufficient provision of probation services. Clause 3, as hon. Members have said, sets out how he may go about that. It enables him to make

“contractual or other arrangements with any other person for the making of the probation provision.”

We envisage that, in most cases, the Secretary of State, through the regional commissioners, to whose role I shall return in a moment, will enter into contracts with the probation trusts and providers from the voluntary, charitable and private sectors, as appropriate. There are 42 local boards, each of which is required to make provision for all services in their areas. In future, providers will be able to focus on their strengths and what is expected of them will be clear. The 42 boards are not uniform: there are differences in their performance. I do not believe that the proposed change will lead to the fragmentation that some have predicted.

Subsection (3)(a) expressly enables the Secretary of State to authorise or require providers to co-operate with one another and with other agencies involved in crime prevention, crime reduction or work with victims. Those expectations will be clearly set out in the contracts and will be one of the criteria against which successful delivery of the contract will be judged.

Paragraph (c) expressly provides for subcontracting on the part of providers. We do not envisage regional commissioners directly holding myriad small contracts. Instead, the commissioners will agree contracts directly with a small number of providers who, in turn, will subcontract aspects of delivery to other providers. The extent to which bidders have established relationships with other providers is likely to be one of the criteria that commissioners will consider when awarding the contracts. We believe that that will help reinforce partnership working and guard against fragmentation, as well as help to safeguard the role of smaller, locally based providers, especially in the voluntary and charitable sectors.

Paragraph (b) simply enables the Secretary of State

“to designate individuals as officers of a provider of probation services”.

We will discuss that further under clause 6.

Nick Hurd (Conservative, Ruislip - Northwood)

The Minister opened by claiming that the process is not a top-down process that is being engineered, but I have not heard any argument to substantiate that claim. It certainly cannot be found in clause 3. What is the argument?

Gerry Sutcliffe (Labour, Bradford South)

If the hon. Gentleman gives me time, hopefully I will get to that point.

Subsection (4) allows for a further option for the provision of probation services: that of the Secretary of State making provision directly through his own staff rather than through contract with other providers. The subsection does not restrict which staff that might be, but makes it clear that what we have in mind is the possible provision of probation services by prison staff, as said earlier. For example, in some circumstances it might make sense for prison staff who are delivering a programme in custody also to deliver the same programme in the community to offenders with similar needs to those in custody. That might enable some offenders to continue after release a programme started in custody, which could be very helpful in supporting the end-to-end management of offenders. The clause sensibly sets out the options for arranging the delivery of probation services.

During the debate, hon. Members made a number of points, and I shall take them in no particular order. Scotland was the first key opportunity that they offered, and we discussed how we could apply the Scottish model across the UK or to England and Wales. The answer given in the debate came as no surprise: there are long-standing differences in the legal position in relation to Scotland and its law. The Scottish system also has a different set of relationships that could not be applied to the UK as a whole. We do not believe that introducing the Scottish system across the UK would succeed in driving up performance.

James Brokenshire (Conservative, Hornchurch)

Will the Minister be more explicit? He says that there is difference in the systems and, obviously, as highlighted, in the law itself. However, as I said in my speech, once an offender is convicted, under whatever form of law, they are convicted and require rehabilitation services. Would the Minister explain a little more clearly what the further distinctions are?

Gerry Sutcliffe (Labour, Bradford South)

It is to do with the relationships that exist. There are accountability problems in the Scottish model. The chief officer of the criminal justice authority reports on his own performance to a Minister and it is for the chief officer of the authority to report failure to Ministers. There is no scope for Ministers to look elsewhere for services. The Scottish model is therefore restricted. That route and responsibility, and the cultural differences between Scotland and England and Wales, mean that the Scottish model would not be appropriate for England and Wales. That is not to say that we cannot learn anything. As the hon. Gentleman says, the Scottish model is now coming into effect, so there may be opportunities to observe best practice and the performers that come forward which we can use when trying to achieve our overall target of reducing reoffending and cutting crime.

The hon. Member for Hornchurch asked me why we set up the national probation directorate in 2001 and then made changes so quickly. We believe that was a step change on the journey that we have taken from 2000 on how to give greater clarity to the role and performance of the probation service. The change has brought greater co-ordination in the direction of services and has achieved a great deal. The directorate was not unsuccessful, but we can build on that success now with the new framework that we are introducing, and go further, as we all agree we must if we are to meet our objectives.

The hon. Gentleman asked me about court services and what will be outsourced as a result of this programme. That will depend on the performance and outcome of the tendering processes. The “Improving Prison and Probation Services: Public Value Partnerships” document committed NOMS, once the legislation was in place, to increase competition to provide services, up to an annual value of £250 million. That is not the same as contracting out. What we are clearly saying is that, if the public sector can demonstrate that it is able to deliver the best service, it will win the contract. That is a point that my hon. Friend the Member for Walthamstow keeps coming back to. We are not saying that everything needs to be contracted out; if the public service improves its performance, it will win the contract, on the basis of that improved performance.

On the figure of £250 million, we have put some aspirational targets in place. However, we are certain that the process will not be a “big bang”. We are not in a position such that, once the Bill is passed, from day one we will have 40 new trusts delivering services through the private sector. The process is about creating the scope, the framework and the opportunity to develop into the brave new world that I believe most probation officers want to see.

How will private providers of probation services be held accountable for performance? The requirements placed on private providers to report their performance will be the same as those placed on public sector providers. Private sector providers will report to the regional and national commissioners in the same way that public sector providers do and as private sector prisons already do quite successfully.

Procurements and contracts will be structured in such a way that providers will not be able to cherry-pick the more attractive areas of business. We are working on a programme of market development and engagement to ensure that services are packaged in a way that is attractive to potential suppliers. We plan to use the implementation of the national and regional commission strategies as an opportunity to begin that process of engagement. The national provider network will help to inform that work from the perspective of both purchasers and providers.

Ian Lucas (Labour, Wrexham)

Will my hon. Friend say something about the relationship between the Home Secretary as a contracting party and the inspectorate, including the role that the inspectorate will play in assessing the delivery of services by private sector providers?

Gerry Sutcliffe (Labour, Bradford South)

My hon. Friend makes a good point. As he knows, the Government examined the role of inspectors under various legislation. We have retained the independence of the individual inspectorates, although they have been asked to work more closely together on the joint services that they may be able to provide. He is quite right that the inspectorate regime will be that of Her Majesty’s inspectorate of probation. Andrew Bridges, the current chief inspector, has made it clear that his role is not to determine who provides probation services, but to ensure the quality of those services. I am quite confident that the fears that have been expressed by hon. Members about the quality of service can be allayed by the presence of the inspectorate.

The hon. Member for Hornchurch asked me what would happen in future if companies go bust, and what would happen then in terms of subcontracting. Things can go wrong and companies can become insolvent or go bust now. The existing arrangements and insolvency laws would apply if the same thing happened in future.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister says, but does he accept that the increased scope of contractual arrangements, and therefore the multiplicity of providers and subcontracting arrangements, may highlight a need to focus on that issue more clearly if we are to ensure continuity of service? For example, if a head contractor fails, what does the Minister envisage will happen in practice?

Gerry Sutcliffe (Labour, Bradford South)

I do not see any need for new measures. There has to be consistency in examining all contracts and all performers of contracts to militate against such a situation arising; it is also necessaryto monitor the performance and well-being of contractors. I do not see any need for greater involvement. The framework is in place: in exceptional circumstances—for example, if a probation board goes out to the private sector and problems arise—the Secretary of State has powers to deal with the situation.

The length of contracts would be a big issue. If the private sector were to be involved, it would take aview about the length and viability of a contract. Contracting already exists; there is currently a multiplicity of contracts between the different boards. We believe that replacing annual funding regimes with multi-year contract terms, to develop and maintainthe longer-term capacity, will help to increase sustainability and achieve some of the things that we want to see.

Budgets have been top-sliced and that has affected subcontracting figures. Probation boards can still do more, however. My hon. Friend the Member for Walthamstow said that boards worked with the voluntary sector and other providers. They do, but not with the right level of consistency. One board has contracted out 1.29 per cent. to the voluntary sector; another has contracted out 5.6 per cent. When we had a target, it was reached. When it was removed, the work was not contracted out. There is currently no consistency in working with the voluntary sector. My hon. Friend talked about community work and the payback scheme, which is an excellent scheme of which I have seen wonderful examples throughout the country. Community sentencing is not work on the cheap; it is testimony to how we can tackle offenders.

In Salford, the community has identified projects that they want carried out, the magistrates have sentenced offenders to work on those schemes and they have been delivered. Everybody wins and the community sees that the work has improved the area. Such schemes do not provide jobs on the cheap, but I question whether trained probation officers have to follow them all the way through. Cannot NACRO, or some other body, deliver that service? NAPO seems to be saying that a probation officer has to deal with everything.

The hon. Member for Hornchurch raised an important point about staff and staff training. We expect every organisation that employs staff to work with offenders to invest in skills and professional development. All providers will have to provide sufficient training for the services that they deliver. We will ensure that they do so through a process of accreditation appropriate to the type of service and contractual value. We need to continue to develop staff to deliver services in the new offender management environment, which is why NOMS is examining training provision to ensure that offender managers are able to deal with the types and range of offenders that we are talking about.

I am sad that, after 25 years, people feel that there is no future for the probation service, as in the example given by my hon. Friend the Member for Walthamstow. It is a tragedy that a person with that much experience is leaving because there is a lack of clarity about what the future holds. I want to say loud and clear that the future for probation workers, whether probation officers or probation support officers, should be rosy, because the Bill will raise the profile of their jobs and responsibilities. We know that they do a difficult job, but when it comes to dealing with offenders they do not have the public confidence that I would want them to have. That point goes right to the heart of why we are creating the probation trusts rather than keeping the existing boards. Offender management affects all our communities. Reconviction rates cost the country almost £11 billion. We should respond to that with a holistic solution. I am grateful to the hon. Member for Hornchurch for reading out the LGA letter to hon. Members about how it sees things. The “Neighbourhood by Neighbourhood” document is the first time in my recollection that local government has accepted its responsibility for dealing with offenders.

It is only by widening participation, whether in business, in the private or voluntary sectors or in the wider community sector, that we will answer the problems of offender management. Probation officers will then be held in the esteem that they should be and will not be subject to scurrilous attacks from the daily newspapers when something goes tragically wrong. The clause sets out our opportunities: we want to see the probation service grow and we want to offer opportunities to a wider range of providers.

I turn now to the amendments. The implication of amendment No. 11 is that contracts should be made by probation boards or trusts rather than the Secretary of State. In fact, probation boards are already able to subcontract and there is no need to create probation trusts for that purpose. There are several difficulties with the current arrangements, as I have made clear. The first difficulty is that, although probation boards are legally able to subcontract at the moment, in practice they do not do so enough and insufficient use has been made of what other providers have to offer. That is why probation boards now have a target of subcontracting 10 per cent. of their budget by 2008. That is crucial to developing partnership working and a better fit with local needs. However, we need to go further than that. We need to be able to commission across geographical boundaries and across the prison gate. We need an element of choice to ensure that we have the right provider for the job. Restricting contracting to probation areas would remove those options.

Amendment No. 12 would restrict the services that can be contracted out to providers other than through the public sector. I understand that hon. Members are concerned to ensure that those services, which are so important in reducing re-offending and protecting the public, should be delivered to the highest standards. I am surprised at the suggestion that the continuation of a public sector monopoly is the best way to achieve that. I do not understand why we should use primary legislation to say that only one provider may deliver a particular service, regardless of what other options might exist. That is an outdated argument, not only in theory but in practice, given that up to 25 per cent. of prison and probation services are already provided from outside the public sector. However, public protection is our No. 1priority and we will proceed cautiously.

I envisage that the work relating to the management of offenders—the work of advising courts and supervising orders—will remain for the next two or three years in the public sector, which has inherited the expertise in the field. We will increase the involvement of the charitable and voluntary sector and of the private sector, especially in interventions, which will work alongside the public sector to develop expertise and strengthen partnerships so that a more diverse range of provision is available in due course.

Finally, amendment No. 25 would place a statutory duty on providers to avoid conflicts of interest. I do not believe that that is a matter for legislation, although I understand what the amendment is driving at. The issue has been raised with me on several occasions. I find it hard to see why hon. Members find it so problematic. There is already potential for a conflict of interest, and with the current monopoly arrangements the public sector is responsible both for advising courts on sentencing and for supervising the sentences that are passed. Boards have targets to meet, for example in the numbers of offenders who undergo certain interventions. Strict guidelines are in place to deal with that, and nobody has suggested to me that they do not work. Ultimately, decisions on sentencing remain entirely at the discretion of the sentencer. If concerns are raised, they can be appropriately dealt with.

We have had a good opportunity to consider all the issues. I am interested by the suggestion made by my hon. Friend the Member for Stafford in the second half of his speech about what we should consider. I am prepared to consider that and I shall come back at a later stage in the Bill to see what detail we can put forward.

We have had an important debate that goes to the heart of what we are trying to achieve. The measure is not about privatisation but about expanding the range of providers to ensure that we tackle re-offending, and I hope that the hon. Member for Hornchurch will withdraw his amendment and support the clause.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister for his response and the hon. Members for Walthamstow, for Cheadle and for Stafford for their contributions.

In making my initial comments on amendment No. 11, and, more generally, on the clause, I highlighted three specific elements: the lack of robust justification for the model adopted in the Bill, particularly in clause 3; the lack of clarity about what the Government’s alternative model would actually deal with; and the impact on how services would be provided. We have perhaps a little more light on the first one, in that we have had an explanation as to why the Government are taking this route. I heard what the Minister said about the approach in 2001 being some sort of stepping stone, or step change, to assist in reaching this position. Although I have not had the pleasure of reading the Hansard report of the debates, I suspect that that was not how it was set out at the time. I suspect that it was said that the Criminal Justice and Court Services Act 2000 would provide all the changes that were required to sustain progress in the probation service. Therefore, it is interesting that the legislation is now regarded a step change and that it was imagined all the way through that we would seamlessly end up precisely where we are.

I take the Minister at his word, but I seek to characterise the Bill as arising from a sudden realisation on the Government’s part that the 2001 moves did not achieve what they wanted quickly enough. As we were told this morning, they have been considering the change for some four years now. It seems that they realised almost immediately that the 2001 change was a big mistake. If that was the case, the probation service, officers and staff who had to go through significant change at the time will certainly feel badly let down.

On clarity as to what is involved, I would like to say that the Minister’s comments informed me as to the strategy and direction, but, if anything, they have added to the sense of, “We could do this, we could go that way, we could maintain certain bits here.” It seems that all sorts of different aspects could flow from the Bill. Rather than giving clarity to the Committee and probation services and their staff, he may have added to the uncertainty. I respect what he said about keeping certain key aspects as they are, at least for the next couple of years, but what will happen after that? What will be the direction at that time? I suspect that we will return to that issue during our debate in clause 4 on probation trusts.

It was interesting that the Minister said that the Bill would not produce a big bang; that it is intended to be part of a steady and incremental change. However, that seems to run against the arguments that the changes are intended to bring about cuts in reoffending, and greater public protection. His comments seem to suggest that there will not be much significant change for several years, even with the Bill. I may have paraphrased him incorrectly, but it seems that there will not be much significant change in the near future. He seems to want one thing on one side but another thing on the other side.

Gerry Sutcliffe (Labour, Bradford South)

No, it is not that. The Bill offers an opportunity for the first probation trust to be in place by 2008. What I am saying is that on day one in 2008 we will not move to 42 probation trusts. Good workis already being carried out by regional offender managers in consultation with trusts, local area agreements are in place, and we are listening to people’s concerns. All that the Bill does is set out the framework for trusts to be created.

James Brokenshire (Conservative, Hornchurch)

The Minister says that the Bill is about creating a framework, and that it is intended that the first probation trust will be introduced in 2008, but it is unclear what will happen thereafter. The framework is being set up, but that seems to underpin the fact that what is happening will not necessarily change significantly, at least in the next few years. As I see it, from what the Minister said, even if the Bill were enacted, we would not necessarily see a significant improvement in the reoffending rate, which is one of the key aspects of the need to introduce the Bill and create the framework and structure in the first place.

Nick Hurd (Conservative, Ruislip - Northwood)

Will my hon. Friend join me in believing that the phased approach to the implementation of the schemes carries with it an opportunity to address one of the fundamental problems underlying the Bill, which is the lack of hard evidence for a causal link between increased competition and reduced offending rates? Will he join me in pressing the Government to think a little harder about how data could be made more transparent as we climb the curve of adoption?

James Brokenshire (Conservative, Hornchurch)

I thank my hon. Friend for that intervention. He rightly underlines the lack of a business case or financial model underpinning the structure. Although I understand what the Minister said about the phased approach and the introduction of the first probation trust in 2008, we do not get a sense of where the system will flow after that. Is it intended, for example, that there will be only one trust, as the Minister was implied, in 2008, and that others will roll out thereafter? Will he wish to see how that first probation trust operates before creating or empowering further trusts? Although a plethora of powers is invested in the Secretary of State, there is a lack of framework and structure, and even today we have no clear direction as to where that may take us. That may well be deliberate; the Minister may say that that is the Government’s intention, and that they are trying to create as much discretion as they can. However, I return to the issue of accountability and holding Ministers to account. I know that the Minister did not directly address that in his comments, although I raised the matter earlier. Perhaps he will reflect on that, and intervene before I sit down. What protections will continue to be afforded to ensure that accountability is maintained?

Gerry Sutcliffe (Labour, Bradford South)

I apologise to the hon. Gentleman. We can return to the IT element in the debates on later clauses. The Secretary of State has to report to Parliament, and there is a statutory duty on offender managers to consult a number of people. I will set out the details about that accountability in a letter to the hon. Gentleman, and to the Committee.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister, as having that sort of clarity and reassurance to back up what the Home Secretary said on Second Reading—and probably what the Minister said too—is important. There is concern that there is some obfuscation about liability or some stepping away from that responsibility. We need to see clearly what the Government are intending to ensure that that will not happen.

The Minister re-emphasised in his contribution this morning the point that the Bill is about giving power to the Home Secretary to decide how he—or she, ultimately—may want to do things. It seems to be about vesting power in the Home Secretary to say, “We thought that it was going to go this way, but in fact, we are nearer that way. I am going to provide a lot of the services directly, or I am going to get the Prison Service to do it. Or we’ll go down the probation trust route, or another route.” The difficulty is that we do not know what the direction will be and how the strategy will be delivered. It is the sheer uncertainty that is the problem.

I respect what the Minister said—that he fully recognises the work of probation officers, the need to retain staff and the need to ensure that the integrity of the system is maintained—but the lack of a clear direction of travel creates a significant risk that probation officers who have been in the service for many years will say that they have had enough. The hon. Member for Walthamstow made that point about the person to whom he spoke. It would be a tragedy and calamity for the service if highly qualified, good staff were to leave because they did not know where it was going or what the future held. The Government have the opportunity to be more specific and set out their intentions more clearly. They should provide in the Bill their intended structure for the service.

We have discussed the delivery of services, and I raised the issue of insolvency. I hear the Minister’s point that the risk of insolvency already exists and that there should be no problem dealing with it in the ordinary course of things, but the Bill means that there could be a much broader contractual arrangement with a plethora of contracts, subcontracts and sub-subcontracts. If the protection of the public is our primary goal, it would be a dereliction of duty if that possibility were not properly considered and addressed.

In other Bills there have been specific frameworks to address such issues. We need to understand what would happen if a head contractor were to become insolvent and what right to step in the Secretary of State would want. The Minister might say that that will be specified in contracts, but there must be greater clarity and an assurance that the continuity of service will be maintained and the emphasis on public protection will not be compromised. We could end up with a complex arrangement, and it is possible to address that. It needs to be considered properly and formally if the system is to be robust and effective, and I am not comfortable about that as the clause stands.

I hear clearly what the Minister says on training, which is important. I welcome his indication of the importance of clarifying how the tendering and contracting arrangements will work. I am comforted to know that their operation is on the Home Office’s radar screen.

The Minister said that conflicts of interest such as those covered by the amendments could exist today so there was no need to mention them in the Bill. Just because something happens today, that does not necessarily mean that protection is not appropriate for the future. If we are to enter into a more dynamic and fluid arrangement for the probation service, building blocks of protection will become essential. The risk of problems occurring needs to be properly addressed in the Bill, and I find it a little surprising that the Minister is not prepared to accept that point and ensure the robustness of the system and the protection of the service by accepting an amendment.

We come back to the nature of the arrangements. The Minister has said that this is not about centralising. Nothing that I have heard from the Minister today has made me change my view that this is a very centralising measure, which is about ceding power, authority and control to the Home Secretary over the manner in which services are to be directed.

There is a common argument that I have come across in my short time in the House where the Government always say, “Well, even though the Bill looks as though it is about centralisation, it is not at all. In fact it will deliver more local services, even though it seems to suggest that the contracting is from the centre and it is all about centralisation.” I have not been persuaded in those debates before and I am not persuaded in this debate that this measure will ultimately have the effect that is claimed. Whatever the Minister has said and whatever the intention may be about providing services more directly at the local level, I do not believe that that will happen.

There are issues about local government. I welcome the positive notes that the Minister struck about the LGA and the Coalition on Social and Criminal Justice regarding the role of local area agreements and the acceptance by local government of its role. This is all about shared responsibilities and it is something that we on this side of the Committee recognise very clearly.

Nick Hurd (Conservative, Ruislip - Northwood)

My hon. Friend has been generous in giving way and I rise to echo his concern about the Government’s lack of clarity not only over the specifics of the Bill but in the wider context of centralism and localism. I asked the Minister when he was going to get round to making the argument that this is not about top-down politics. He never did get round to it because the argument cannot be made in this context. What puzzles me is how we set this in the context of the wider sense of direction of the Government set by the Chancellor in a speech on 6 June called “Building 21st-century Public Services” in which he says:

“In the new century people and communities should now take power from the State. A re-invention of the way we govern is required. Local councils and people should have more power over the things that matter to their community.”

How do we square that with the Bill before us?

James Brokenshire (Conservative, Hornchurch)

My hon. Friend has given us a real nugget there regarding the apparent direction of policy and the reality of the Bill, which does not take us in that direction. The LGA made the point thatthe Bill goes in the opposite direction: rather than sharing responsibility and embracing the fact thatlocal government and other bodies accept their responsibilities and the fact that they have a very important and significant role to play, we have in clause 3 the Secretary of State effectively saying “Thanks, but no thanks”.

The Home Secretary says that contracting will be through the centre. At best, it is about regionalisation and regional commissioning, as the Minister accepted. Commissioning was intended to be done through the regional offender managers. Although there may be certain arrangements that could then be contracted down, and not, as he said, a panoply of different contracts coming out at that level, there is a risk that, rather than allowing that local dynamism that he himself said he wanted to create, the process could be stultified.

Regarding contract delivery, I made the point, asdid the hon. Member for Walthamstow, about the individualisation of services and how unpaid work would fit in.

Peter Atkinson (Conservative, Hexham)

I remind the Committee that with this we are discussing the following amendments: No. 12,in clause 3, page 3, line 25, at end insert—

‘( ) Arrangements under subsection (2) shall not apply in respect of functions specified in section 1(1)(a), 1(2)(a) and 1(2)(c).’.

No. 25, in clause 3, page 3, line 35, at end add—

‘(6) In carrying out their functions under this Part, and in particular in providing any assistance to courts and to the Parole Board, providers of probation services and their officers shall ensure that such assistance does not give rise to any conflict of interest between their obligation to give such advice impartially and the financial interest of the provider.’.

James Brokenshire (Conservative, Hornchurch)

Thankyou, Mr. Atkinson. I welcome you to the Chair this afternoon.

I was midway through my comments on the arrangements for the individualisation of service and the need for services to be maintained. The Minister has said that there will be flexibility for probation officers not necessarily to follow a particular framework for an offender all the way through and that other parties could be involved. I hope that he is not rowing back from the Home Secretary’s commitment to a

“seamless and individual package of supervision and support from the start of their sentence to the end, overseen by a single offender manager”.

We have significant concerns on the structure of the clause, and I therefore wish to test the Committee’s view.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendmentNo. 18, in clause 3, page 3, line 25, at end insert—

‘(d) to adhere to the race equality duty under section 71(1) of the Race Relations Act 1976 (c. 47).’.

We move on to a more narrow and technical amendment relating to the Race Relations Act 1976. Amendment No. 18 seeks to insert an additional provision into clause 3(3) whereby there would be the ability to require persons carrying out probation services to adhere to the race equality duty under section 71(1) of the 1976 Act, which states:

“Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need...to eliminate unlawful racial discrimination; and...to promote equality of opportunity and good relations between persons of different racial groups.”

That issue and some concerns were raised by the Commission for Racial Equality, which stated in its briefing note on the Bill:

“NOMS, as part of the Home Office, is subject to the race equality duty. The race equality duty encompasses the General Statutory Duty...to promote race equality under section 71(1) of the Race Relations Act as amended...and accompanying specific duty to publish a Race Equality Scheme.”

The commission also said:

“Despite repeated letters from the CRE and meetings with NOMS and the Home Office over the last three years, there is no evidence that race equality criteria have been built into procurement policies and guidance for contractors or that the performance of contractors on race equality is being actively monitored. It therefore raises questions about the extent to which NOMS, through the Home Office, is meeting its statutory responsibilities under the Race Relations Act.”

I have tabled a probing amendment to highlight those concerns. Given the comments made by the CRE, I consider the issue important. I want to elicit a response from the Minister as to whether race equality responsibilities are being properly adhered to and, moving forward, what will happen on general compliance with that particular statute and duty.

Vernon Coaker (Labour, Gedling)

As this is the first time that I have had the opportunity to address the Committee, I welcome you to the Chair, Mr. Atkinson, and look forward to your chairmanship. I shall also take the opportunity to ask you to pass on to your fellow Chairman, Mr. Bayley, my best wishes for the Committee. I also welcome all members of the Committee to our deliberations. I am pleased to be here to support my fellow Minister, who will be dealing with most of the proceedings, but I will be makingthe odd—not literally—contribution, as and when appropriate.

I say to the hon. Member for Hornchurch that the Home Office and the National Offender Management Service take very seriously all their responsibilities under the law and seek to comply fully with all aspects of legislation. I am glad to have the opportunity provided by the amendment to discuss the crucial issue of diversity in both the employment of probation staff and the delivery of probation services. Although there is always room for improvement, the probation service has a good employment record. A report by Her Majesty’s inspectorate of probation in 2004 found that 16 per cent. of members of probation boards came from minority ethnic backgrounds. At the end of December 2005, 12.1 per cent. of probation staff were from minority ethnic backgrounds, compared with10.1 per cent. in the previous year and 9.8 per cent. in 2000. We want to build on that foundation.

The issue is also crucial in respect of service delivery. Members of the Committee do not need me to tell them that black and minority ethnic groups are disproportionately represented among those supervised by the probation service. Ensuring that the right services are available to meet the needs of all offenders is part of how we will reduce reoffending and better protect the public.

The benefits of commissioning include a clearer focus on the offending-related needs of the offender and innovative tailored service provision and delivery that is more relevant than simply equal services to offenders irrespective of their race, gender or other characteristics. That should help to achieve greater parity of outcomes.

Commissioners will set out diversity expectations and service delivery and say how they will be monitored. The commissioning framework to which regional commissioners and providers will be working as they negotiate service-level agreements for 2007-08 sets four priority areas, of which diversity is one. The aim is to deliver greater equality of access to services provided for offenders in prisons or supervised in the community, irrespective of their race, gender or other characteristics; to achieve greater parity of outcomes where that is not the case; and to promote greater confidence in the criminal justice system among those groups where such equality of access is lacking or weak.

I can tell the hon. Member for Hornchurch that there is no dispute about the need to act on diversity—the question is whether we need explicit provision in the Bill. I think that that is not necessary, as providers are already covered by the 1976 Act and, indeed, by the full range of other anti-discrimination legislation that is not mentioned in the amendment. However, I accept that a consequential amendment is necessary to section 71(1) of the 1976 Act, which lists local probation boards as one of the bodies to which the race equality duty applies. It does not need to be set out in the Bill in the way proposed, but in due course we will table a consequential amendment to ensure that the relevant duties continue to apply when probation boards cease to exist. In view of that clarification and assurance, I hope that the hon. Gentleman will ask leave to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister for his response. This is my first opportunity to welcome him formally to the Committee, and I look forward to future debates as we proceed through the Bill.

I listened carefully to the Minister and was reassured by much of what he said. I hope that his message about the importance of some aspects of the proposal will be heard clearly in this Room and outside it. I agree with him that there are two ways of dealing with the issue: by amendment to the Bill now or by a further amendment on Report to amend the 1976 Act.

In the light of the Minister’s comments, I beg to ask leave to withdraw the amendment.

Clause 4

James Brokenshire (Conservative, Hornchurch)

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

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

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

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

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

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

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

On a technical note, subsection (5) states:

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

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

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

David Kidney (Labour, Stafford)

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

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

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

Mark Hunter (Liberal Democrat, Cheadle)

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

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

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

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

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

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

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

“The Secretary of State may make contractual or other arrangements”

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

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

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

James Brokenshire (Conservative, Hornchurch)

As yet.

Gerry Sutcliffe (Labour, Bradford South)

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

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

“the making or performance by the trust of contracts with the Secretary of State”

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

Crispin Blunt (Conservative, Reigate)

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

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

James Brokenshire (Conservative, Hornchurch)

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

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

David Kidney (Labour, Stafford)

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

Vernon Coaker (Labour, Gedling)

Reassurance.

Gerry Sutcliffe (Labour, Bradford South)

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

Schedule 1

James Brokenshire (Conservative, Hornchurch)

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

Peter Atkinson (Conservative, Hexham)

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

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

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

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

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

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

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

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

(a) a District Judge;

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

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

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

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

James Brokenshire (Conservative, Hornchurch)

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

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

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

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

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

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

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

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

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

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

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

the note goes on to list them.

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

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

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

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

Mark Hunter (Liberal Democrat, Cheadle)

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

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

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

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

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

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

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

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

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

Neil Gerrard (Labour, Walthamstow)

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

Gerry Sutcliffe (Labour, Bradford South)

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

Paragraph 3 states:

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

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

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

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

Rob Flello (Labour, Stoke-on-Trent South)

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

Gerry Sutcliffe (Labour, Bradford South)

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

James Brokenshire (Conservative, Hornchurch)

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

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

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

James Brokenshire (Conservative, Hornchurch)

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

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

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

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

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

Neil Gerrard (Labour, Walthamstow)

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

‘are for the Trust to determine’

and insert

‘shall be determined by the Secretary of State’.

Peter Atkinson (Conservative, Hexham)

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

Neil Gerrard (Labour, Walthamstow)

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

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

Rob Flello (Labour, Stoke-on-Trent South)

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

Neil Gerrard (Labour, Walthamstow)

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

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

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

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

“requires the approval of the Secretary of State”

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

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

James Brokenshire (Conservative, Hornchurch)

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

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

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

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

“are for the trust to determine.”

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

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

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

Neil Gerrard (Labour, Walthamstow)

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

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

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

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

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

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

James Brokenshire (Conservative, Hornchurch)

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

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

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

Peter Atkinson (Conservative, Hexham)

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

James Brokenshire (Conservative, Hornchurch)

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

“(1) A probation trust must comply with any general or specific directions given

to it by the Secretary of State”.

It continues:

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

Sub-paragraph (3) states:

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

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

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

Mark Hunter (Liberal Democrat, Cheadle)

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

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

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

Crispin Blunt (Conservative, Reigate)

What?

Mark Hunter (Liberal Democrat, Cheadle)

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

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

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

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

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

James Brokenshire (Conservative, Hornchurch)

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

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

James Brokenshire (Conservative, Hornchurch)

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

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

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

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

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

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

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

Mark Hunter (Liberal Democrat, Cheadle)

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

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

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

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

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

Vernon Coaker (Labour, Gedling)

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

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

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

James Brokenshire (Conservative, Hornchurch)

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

James Brokenshire (Conservative, Hornchurch)

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

“A probation trust is a body corporate.”

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

Paragraph 1(2) states:

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

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

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

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

Paragraph 2 states:

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

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

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

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

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

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

Gerry Sutcliffe (Labour, Bradford South)

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

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

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

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

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

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

James Brokenshire (Conservative, Hornchurch)

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