My Lords, I begin by reiterating that I and colleagues on these Benches, and indeed across the whole House, are entirely supportive of the Government’s intentions in the Bill to reduce reoffending. We congratulate them on that aspiration. We want to work with them to see its fulfilment but we have legitimate questions to raise about the way in which they seek to proceed. Having said that, I repeat that we are at one with them in the objective of saving large amounts of public money and, equally importantly, helping to reshape the lives of the people and communities upon whom they have an impact.
This amendment, which I trust passes the Hamwee test, deals with payment by results. The Government’s proposals, which are of course not in the Bill, postulate a system in which for short-sentence offenders there will be supervision, from which the probation service will effectively be excluded, in respect of what have been described as low and medium-risk offenders. That work will be carried out under contract by independent private or voluntary sector organisations, or a combination of the two. The amendment is designed to ensure that such a scheme is properly piloted. It does not rule it out, but it suggests that the scheme be properly piloted and then approved by Parliament as a radical change to the nature of the probation service.
I am grateful to the noble Lords, Lord Taylor and Lord McNally, for answering after a fashion several questions which I raised at Second Reading and in Committee on payment by results schemes in connection with this question of the prevention of reoffending. The noble Lord, Lord Taylor, responded to my request for an explanation of why the Government abandoned pilot schemes by the Wales and the Staffordshire and West Midlands probation trusts, and why they refused an FOI request for details of the evaluation of those pilots, by a curious answer to my first question—to which I shall return—and by responding to my second by falling back on the wholly unsatisfactory defence that the information relates to the formulation and development of government policy.
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It was “judged the public interest was better served by withholding the information to ensure Ministers and officials can conduct rigorous assessment of developing proposals—including considerations of
the pros and cons, and learning from any pilots—without there being premature disclosure which might close off discussion and the development of better options”. The latter point seems to be a classic non sequitur, especially in the light of the preceding paragraph in the letter, which asserts that, “The lessons the Ministry of Justice has drawn from implementing the pilots has given them confidence that they can design and commission robust contracts that drive right behaviours and generate value for money. It was decided that value for money would best be served by discontinuing work on pilots that might be incompatible with the wider reform programme”.
If the pilots are not to shape the wider reform programme, why can their evaluation not be disclosed? Is it because the Government have determined as a matter of policy—or rather, ideology—that the probation service is to be excluded from this area of work? Did the results demonstrate a capacity on the part of the trusts to deliver the objectives or not? If they did, why have the Government chosen to rely entirely on other providers?
Interestingly, the noble Lord, Lord McNally, in his letter says that the department “does not hold evaluations of the pilots”, but that it does hold “notes of lesson learned workshops”—that is the phrasing—“relating to the pilots”. From the back of these departmental envelopes, the department is apparently “considering what information it should publish before formal procurement begins and information relating to these pilots is being considered as part of the process”, but without any intention, apparently, of their being disclosed to Parliament. Ministers appear to be adopting the character of Kaiser Wilhelm II in the famous Punch cartoon on the occasion of his dismissal of Bismarck as Imperial Chancellor. The caption showed the Kaiser dismissing a nautical Bismarck over the legend “Dropping the Pilot”. That is exactly what the Government appear to have done in respect of these two pilots.
However, it is otherwise, apparently, with the interim reports on the two prison pilots at Doncaster and Peterborough, rather too glibly hailed by the ever casual Mr Grayling as successful. The noble Lord, Lord McNally, very helpfully referred me to two reports. The one on Doncaster was dated 2011, which is before the project got under way in Doncaster. The other was an interim report on Peterborough. Both pilots are supposed to run for four years. The amendment suggests a more modest period of three years. In any event, that would take us beyond the next election, which is too long for Mr Grayling’s political agenda. At best, as my right honourable friend Sadiq Khan, among others, has pointed out, these very early results are mixed with Doncaster being, if anything, disappointing and Peterborough, on one measure, barely encouraging. Yet the Government appear determined to press on with payment by results in any event. I was going to say “at all costs”, but of course they have no intention of revealing the costs of the short sentence or other schemes, as what passes for the impact assessment and this afternoon’s debate make clear.
The Minister stated in Committee and repeated in his letter to me that the Government “are not able to include the likely costs of providing additional
supervision”, which will, of course, be required in respect of the considerable number—some 250,000—people who emerge from short sentences “because they will be subject to the outcome of competing services for offenders in the community, and to give out an estimated figure could put contractual negotiations at risk”. I could understand that in the case of individual contracts, but it is surely possible to prove a ballpark figure for the entire programme. It is not going to be let as a single programme, after all.
The impact assessment makes an attempt of a kind to estimate the cost,
“associated with breach of licence and supervision conditions for short sentenced offenders”.
The best estimate is that there could be a cost of £27 million a year. The low estimate is a cost of £6 million a year; the high estimate is £42 million a year. What wonderful precision in the assessment of the impact of proposals.
I might have described this as the Government inviting us to take a leap in the dark but, of course, the Bill contains no invitation of any kind to consider the Government’s policy in these matters and it would not be discussed at all without this amendment.
A host of questions is still unanswered. The Minister’s letter asserts that the Government will “design a competition process that allows a range of different kinds of entities to be able to bid to deliver services. Such entities would have to be capable of bearing financial risk so cannot be public sector bodies, but this could include alternative delivery vehicles and mutuals designed by staff groups within existing probation trusts”.
It seems to me that this latter is a naked bid to defuse opposition from within the probation service, but it rests on another non sequitur. There is no reason why public sector bodies should not engage in activities which involve financial risk. They do it all the time: the Government do it, the health service does it, local authorities do it, and they frequently manage that risk better than private sector bodies, as the shambles of our economy only too painfully demonstrates.
The letter goes on to make a number of other points which raise more questions than they provide answers. Thus, apparently, performance indicators will be used to measure service delivery and the Ministry of Justice will be able to deduct an unspecified proportion of the fee for service payment. There is simply no indication of how this will work. What proportion is envisaged? What weight will be given to the nature of any reoffending? Will a motoring offence count the same as a burglary or a crime of violence? The letter states that any offence committed within a one-year follow up period would be taken into account if it is proven by a caution or conviction. That strikes me as much too broad a definition. However, 12 months may well be too short a period within which to judge whether the supervision has been successful. The notion that performance payments are to be made by cohort with potentially undifferentiated weightings for the character and severity of the offences or the record of the individual offender is very troubling.
There are major issues about the management of risk, given that at least 25% of offenders move between categories, with a significant number becoming high risk. How will this be provided for in the contractual arrangements? Will it mean, as suggested by the Chief Inspector of Probation, that,
“only a small part of the contract price can be genuinely dependent on a reoffending measure”.?
The Chief Inspector has also referred to the fact that,
“the vital importance of victims’ safety is not given sufficient prominence in the proposals”,
and that,
“victim contact services …should be retained within the public sector probation service”.
She is concerned that in the payment by results system,
“any lack of contractual or operational clarity … will … lead to systemic failure and an increased risk to the public”,
and that,
“the current proposals for the management of such risk cannot be judged as workable”.
In one out of 10 cases inspected by the inspectorate, breach action was required. Under the proposals, probation would have very limited contact with low and medium risk cases and could not discharge its responsibilities. The binary system that the Government are proposing is fraught with difficulty.
Finally, there is the highly relevant question of cost. Some 250,000 people a year will now receive supervision for the first time. I repeat that that is a welcome development, but how will it be paid for? The coalition agreement stated that independent providers would be paid,
“to reduce reoffending, paid for by the savings this new approach will generate within the criminal justice system”.
Yet the new approach is not to be tested unless this amendment is carried and the Ministry of Justice risk assessment, which the Government have been at such pains to conceal, and which the Minister this afternoon seeks to dismiss as meaningless, estimates a 51% to 80% risk that cost savings will not be met. Only a reckless gambler would place a bet at those odds. Where is the figure given to the Government? The rush to implement this half-baked concept without proper piloting and evaluation, and without parliamentary scrutiny or adequate analysis of the financial implications, is all too familiar. Mr Grayling already stands convicted of an abysmal failure in the analogous approach that he adopted in the Work Programme. There is insufficient reason to believe that payment by results in the sensitive area of criminal justice, with all its implications for public confidence, will fare any better.
The Minister is aware of the Government’s proposals on criminal legal aid, under which an advocate presenting a guilty plea will receive exactly the same fee as an advocate putting forward and defending a not guilty plea. The Minister’s salary, I am pleased to say, will remain the same whatever the outcome of the debate and the Bill. Therefore, I advise him to do the sensible thing—to accept the amendment, plead guilty and get it over with, which is presumably what the Lord Chancellor’s proposals on the criminal legal aid system will bring about.
This amendment is designed to promote the Government’s policy effectively. It is not designed to undermine its objectives or to prevent it; it is designed to ensure that we have a developed, piloted system, which is workable and cost-effective, in the interests of the whole community and of achieving the Government’s objective. I beg to move.