Offender Management Bill

We have had a number of discussions on and around this issue over the past few weeks as we have worked our way through theBill in Committee. For many noble Lords, this is understandably a core issue, which is fundamental to their appreciation and understanding of the direction of travel that this piece of legislation represents. Itis an interesting discussion and debate for all that, because, when it comes down to it, the noble Baroness, Lady Anelay, has put on the record quite clearly that she has no, "““philosophical or political objection to probation services being provided from outside the existing public provision””.—[Official Report, 21/5/07; col. 552.]" However, she has said that she has some serious doubts about the process. In essence, that is what we have come down to—some doubts about the process. Both major parties represented in your Lordships’ House are at one on the importance of contestability, but my noble friend Lady Scotland and I disagree with the noble Baroness, Lady Anelay, about some aspects of the process. It is in that area that I would like to offer some reassurance in the next few minutes. Last week, when we considered Clause 4 and the noble Lord, Lord Ramsbotham, put forward his amendments, we had a constructive discussion about this issue. We have moved forward and there is now a broader understanding in the Committee about how the contestability process will work. However, we now have an opportunity to pull the various strands of that debate together. Before I focus on the amendment, it may help if I remind the Committee of the history of Clauses 4 and 12 and how they came to be in the Bill in its current form. When the Bill was first introduced, it did not distinguish between different aspects of Probation Service provision in terms of what could and could not be delivered by non-public sector organisations. That is because we do not think that there are fundamental reasons of principle why any aspect of probation provision could not in theory be delivered outside what we strictly understand as being the public sector. As I have rehearsed, that is a view shared by the Benches opposite. However, the Bill sets out a framework for the longer term, and we have always said that we will move forward cautiously and at a sensible pace. I think that noble Lords have accepted that argument. We understand the risks and sensitivities involved, particularly those that have been raised by noble friends behind me. As noble Lords will know, the work that probation does with offenders can be divided into two broad categories: offender management and interventions. To remind ourselves further, ““offender management”” refers to the management of individual cases. It isthe process of assessment and sentence planning, implementation, review and evaluation that runs from the beginning to the end of an offender’s sentence. Interventions are structured or planned pieces of work identified in the sentence plan. Their purpose may be punishment, rehabilitation or public protection. Examples include accredited offending behaviour programmes such as those for sex offenders and domestic violence offenders, or curfews with electronic monitoring and unpaid work. It is in the field of interventions where alternative providers have achieved the greatest level of involvement, and there has been much support for that. We want to build on that and increase their involvement, working alongside the public sector, to develop expertise and strengthen partnerships so that a more diverse range of provision is available in due course. In respect of the core offender management work, however, we have always said that we want to proceed much more cautiously because we do not think that alternative providers yet have the necessary expertise or experience to undertake that work. We subsequently firmed up that reassurance into a commitment given in the other place that we would not contract with a non-public sector provider for that area of work until 2010 at the earliest. As the Bill approached Report and Third Reading in the other place, it was apparent that particular concerns remained in respect of one aspect of offender management; namely, the work that probation does in relation to courts. We responded to those concerns by tabling an amendment to the Bill that enables the Secretary of State to contract only with a public sector provider for the work that probation does in relation to courts. That amendment was passed unopposed and now forms Clause 4 of the Bill. It was coupled with what is now Clause 12 of the Bill, which enables the restriction to be lifted by means of an order subject to affirmative resolution. Why do we think that such a power is needed? As I have made clear, we see no reason of principle why this or any other aspect of probation work should be reserved for the public sector alone. But the fact that we do not think it appropriate to open up this area to other providers now does not mean that we should rule out the possibility for all time. If we reach a stage where alternative providers have gained greater expertise and experience, where courts have full confidence in their abilities and where concernsabout conflicts of interest have been addressed, the Government of the day may well wish to open up this area of work to competition to see whether it canbe delivered more effectively by a non-public sector provider. We should have the flexibility to respond to those changed circumstances without having to wait for a suitable slot in primary legislation. In that context, it is worth highlighting the fact that the court restriction is cast widely and covers much more than the specialist area of court reports and advice on sentencing. It also covers, for example, the provision of general advice and bail information. It may very well make sense for some of those less sensitive aspects of delivery to be opened up to other providers more quickly, which is why Clause 12(2) allows for Clause 4 to be repealed partially as well as in its entirety. We should not deny this or a future Government such flexibility, but we should attach to it an important safeguard in the form of the affirmative resolution procedure. That means that the Government could not lift the restriction without a vote to that effect in each House. For a sensitive measure such as this, that is setting the bar high. The Government would need to present a convincing and effective case, backed with evidence, if they were to secure the support of both Houses, particularly this one. The Government currently have no majority here and the House can effectively operate a veto. That is a robust safeguard, and I believe that it is the right approach for an order of this importance. I was glad that the Delegated Powers and Regulatory Reform Committee agreed that this procedure was appropriate. The noble Lady, Baroness Anelay, however, does not agree with either the Government or the Delegated Powers Committee—an unusual point, as it says.