My Lords, the whole House will join me in thanking the Minister for his very clear exposition of the Bill and the proposals relating to it, which do not appear in legislative form, and in welcoming efforts to reduce reoffending and its cost to the public purse and the life chances of the offenders themselves, and above all the damage to society at large and to the victims of crime in particular. That said, changes should be evidence-based, practical and cost-effective. A rehabilitation revolution is unlikely to be achieved on the cheap or by an ideological obsession with the market.
Members will wish to probe the details of the scheme for offenders on short sentences as well as those serving longer terms of imprisonment, to consider the implications of a binary system in which what are described as low to medium-risk offenders are dealt with by one set of providers and high-risk offenders by another, and to discuss the future of our successful probation system, which is effectively to be nationalised and then privatised under the proposals in the Government’s consultation document and their response to that consultation. Your Lordships will wish to examine the case for payment by results and the degree to which all relevant agencies, including local government, health services and the Department for Work and Pensions—to name but three—and the third sector can come together and be involved in the planning and delivery of services tailored to the needs of the individual offender and of the society to which we all want to see them return and in which they can play a useful part.
I begin with the proposals for offenders serving short-term sentences. The lack of supervision and support for this group has clearly been a major contributor to the high rates of reoffending. Welcome though a change in this position is, it is as well to recall that a thought-through policy would address the issues that lead many of these offenders into trouble in the first place. We are familiar with the early symptoms of a significant proportion of those who commit crime: low literacy and numeracy skills, truancy, early parenthood, mental health issues and, yes, poverty. However, in addition to addressing those matters, which involve policies across a range of government and local authority responsibilities and departments, we need to look at the justice system itself. As both Nacro and DrugScope point out in their responses to
the consultation, greater use of community sentences would avoid custodial sentences, especially short ones, in the first place while still allowing the effective support envisaged under the Bill.
Experience of community sentences, however, demonstrates a potential problem with the Bill’s proposals to provide a sanction of two weeks’ imprisonment for non-compliance with the sanction order. There is a widespread view that in the existing regime there is an overreliance on this expensive and ineffective approach. The Criminal Justice Alliance suggests that recall to custody should be a last resort but sentence review powers should be available to all magistrates’ courts.
The Bill envisages supervision of all short-sentence offenders. Is this really necessary? To pick an example at random, should it apply to someone convicted of a road traffic offence, possibly combined with perverting the course of justice? There is surely a case for concentrating resources on those offences and offenders to which they are most likely to be relevant; otherwise, in a payment by results system, the low-hanging fruit will be too readily plucked by the providers, to the cost of the taxpayer.
In relation to the split between who supervises low and medium-risk offenders as against high-risk offenders, there are real concerns. These matters, along with payment by results and the radical changes to probation, are not part of the Bill. Therefore, in addition to a binary system of dealing with offenders, we have a binary legislative and policy process. This is an unsatisfactory, piecemeal approach, made worse by a flimsy—and belated—impact analysis.
The National Council for Voluntary Organisations points out that a quarter of offenders change risk category during their sentence, and calls for,
“a clear and consistent process for changing levels of risk”.
Where there is a change of risk, and therefore of responsibility, it calls for a system of managing the transition, including,
“a clear process for the attribution of payments”.
What proposals do the Government have in relation to these matters? Would change to a higher-risk category constitute a reason for withholding payment in whole or in part, or would that happen only in the event of reoffending?
The House may wish to consider amendments to the Bill designed to address some aspects at least of the radical changes to the probation service which form part of the Government’s agenda but are not, as yet, encompassed by the proposed legislation. The need to do so is highlighted by this issue of risk. The category of medium risk would appear to include sex offenders and some of those guilty of violent crime. There must be a concern that such offenders will or may be dealt with, not by the established probation service on release, but by providers in the new and untested payment by results scheme. Given the recent revelations about the soaring number of cautions for what seem to be potentially serious offences, there is likely to be legitimate public anxiety about the issue, especially as offenders can and do move up the risk scale.
The whole question of payment by results raises huge doubts. The Lord Chancellor has form on this; he is a high-risk offender as the progenitor of the staggeringly unsuccessful Work Programme. Why did he cancel the two schemes in Staffordshire and the West Midlands and Wales, and why has the Ministry of Justice refused an FOI request to release details of the evaluation of those pilot schemes? I repeat these questions, which I voiced in the Queen’s Speech debate and to which I have received no reply. Such a radical change should, at the very least, be properly piloted and evaluated before being rolled out. The notion of G4S, Serco and the like extending their growing takeover of the public services is not one with much public appeal, even if occasionally dressed up with a modicum of bid candy in the form of modest third sector involvement. Why will public providers be excluded from working with the low and medium-risk offenders? What will constitute a failed result—any offence, or one of similar or more serious character? If the latter, how is gravity to be measured and for how long is the period of non-offending to be measured before payment is made? What discussions have Ministers held with potential bidders about how the scheme might work? What proportion of the payment will be related to success, however defined, and when will it be paid?
There are also problems with the centralising thrust of the Government’s approach. Local justice is already being undermined by the continuing process of amalgamating magistrates’ benches and court closures, coupled with increasing reliance on full-time district judges. Probation trusts, arguably too large already, will disappear as commissioning will be carried out nationally. How will this help to promote the necessary joint working so obviously required between the justice system in its various manifestations and other relevant agencies? We know that housing and employment are the key drivers in preventing reoffending. Health issues, particularly in relation to substance abuse and mental health problems, of course also loom large. There is a clear need for local authorities, as deliverers of key services and support, to be engaged alongside clinical commissioning groups, the NHS Commissioning Board, police commissioners and the DWP at local level, together with the courts. That will be extremely difficult given the proposal to establish only 21 areas for the contract packages. Moreover, with contract areas as large as this, the opportunity to involve third sector organisations, to which the Minister referred, which so often bring innovative approaches to difficult areas of social policy such as those we are discussing, is likely to be much more difficult. All the promises of involving such bodies in the Work Programme disappeared as rapidly as the Prime Minister’s resolution on the question of a European referendum. What concrete measures will the Government take to ensure that the role of the third sector, particularly small, local organisations, will be secured in the commissioning process? Do the Government recognise the risk that, as the NCVO puts it,
“using a PbR model alone threatens to significantly reduce the potential range of providers”.
That is its split infinitive, please note, Mr Gove, not mine.
Will the Government ensure there are no gagging clauses in the employment contracts offered by providers? For that matter, will the Lord Chancellor lift the gagging order he made on probation officers and court staff in relation to the probation proposals and the interpreters’ fiasco respectively? Will the Government, as Nacro urges, make quality, and not price, the key criterion when commissioning services, and for how long will contracts run? Who will evaluate performance, and will such evaluations be made public?
There is clearly a host of doubts and questions, not about the Government’s objectives in reducing reoffending, nor about many of the proposals—for example, in relation to drug-testing and the like—but in addition to the matters that I have raised and others will air, including my noble friend Lord Ponsonby, whom I welcome to his first, and by no means, I hope, last, appearance on the Front Bench.
I wish to suggest a new way of dealing with the problems of one particular group of offenders, namely ex-service personnel. I recently attended a presentation about veterans’ courts, now established in every US state. They do not replace the ordinary courts, but in cases not involving serious or violent crime, for which probation would not be an option, and after conviction or a guilty plea in the ordinary court, veterans are offered referral to a veterans’ court, presided over by a judge—it might the same judge as in the court of first hearing—where with a veteran mentor they enter a period of supervision and help to overcome the problems that they both face and perhaps pose. They return to the court monthly and if they fail to co-operate, or reoffend, they are returned to the court of first instance. There is a remarkably high rate of success in reducing reoffending and it is cost-effective—so much so that in Buffalo, New York, I understand, out of 300 cases the success rate in avoiding reoffending was 100%. Given the particular problems of a group of men and women who have served their country, often in dangerous and difficult conditions, and the relatively high incidence of mental health problems and offending with which they become involved after their service, it would be a fitting complement to the military covenant to pilot such an approach.
As the north-east is proportionately the biggest contributor of recruits, and as work is already under way in the region around the mental health problems of veterans, I suggest that a scheme of this nature be piloted there and, if successful, rolled out more widely. If, in a slightly different form, we can have special traffic courts, domestic violence courts and the community court in Liverpool, we should at least see whether what the US has adopted so successfully could work here. That would make in my view a potentially useful addition to carrying out the intentions that the Government have expressed and from which there would be no dissent in this House.
However, we are in a peculiar position of having a Bill before us that does not deal with many of the significant problems to which I have referred and other noble Lords may wish to address their remarks, with a wholly inadequate series of impact assessments and a great paucity of detail about how matters will work in practice. I am afraid that this is fairly consistent
with the way in which Parliament and this House in particular have been treated over various legislative matters. Perhaps it is not too much to suggest that, when it comes to policy-making, the Government are in need of a rehabilitation revolution.
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