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The report of the Merits of Statutory Instruments Committee states that the memorandum gave no adequate explanation for the changes or how they would affect the rehabilitation of offenders and the service provided to the community. The committee therefore asked for better information. It is only as a result of their work that we have been provided with the supplementary information given by the Home Office to the committee. As a result of scrutinising that, I still do not believe that the Home Office has yet made a case for the regulations before us today.
The boards are a comparatively recent innovation, established by the Criminal Justice and Court Services Act 2000. Yet the Government now wish to rip them up and start again, without even carrying out any evaluation of the existing governance, as far as I can see. If they have, where is it? Why has Parliament not been allowed to see it?
In addition, there has been no formal public consultation exercise. Why? Because the Home Office says:
The Home Office was wrong. They should have carried out an effective consultation on what constitutes a significant policy change.
Why make these changes now? If the Government intend to abolish the boards anyway as part of the National Offender Management Service Bill reorganisation, why not wait until that has been properly scrutinised by Parliament. What are they afraid of that makes them act with this haste?
At present, each probation board has up to 15 members comprising a chair, the chief officer, a judge appointed by the Lord Chancellor, and 12 other members, of whom four, where practicable, should be magistrates and two elected members of a local authority. The quorum is seven. They were created to provide local accountability through the agreement of strategic objectives and the monitoring of performance.
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The regulations make three main changes, all of which are unnecessary and will damage the quality of work carried out by the boards. First, the quorum will be reduced to five, allowing smaller boards to be put in place. Since 2001, probation has been moving towards increased local involvement with communities and the boards have drawn membership from a wide cross-section of the population. That has been beneficial. Therefore, it is obvious that if the Government now reduce that representation that must have a negative effect on the level and scope of local involvement.
The Government say that the new boards will be seen as businesses. What exactly do they mean by this? Many current members have extensive experience in private sector business, but they recognise that while they must run their services in a business-like fashion, when it comes to running a justice agency, many decisions are simply not primarily business decisions.
Secondly, it is intended that it will no longer be necessary for four members to be magistrates, but the primary customer of the service is the local courts, so that is also a retrograde step. Magistrates sentence on behalf of very local populations. I note that the Magistrates' Association is opposed to that change. I have read the letter that John Thornhill, chairman of the Judicial Policy and Practice Committee, sent to Richard Cullen at the National Probation Directorate. Mr Thornhill wrote:
- “we are all dismayed at the suggested changes to the SI and bewildered at the suggestion within the context of stressing how much magistrate membership of Probation Boards is welcomed and valued”.
Thirdly, it is intended that two local authority members will no longer be necessary. Partnerships with the local police and local authority are at the heart of modern probation practice. It is increasingly necessary for close liaison, joint funding and joint planning through local area agreements. So it is not surprising that that change is opposed by the Local Government Association. Councillor Hazel Harding, chair of the LGA Safer Communities Board, wrote to Mr Cullen to express its opposition to it. She points out:
“Councillor members of Probation Boards are essential because they provide local accountability and strengthen partnership working, as well as bringing a range of skills from their experiences as councillors and their diverse professional backgrounds...Removing the requirement for councillor representation on local Probation Boards runs contrary to the recognition given by other parts of the HO of the need for local political leadership on crime and disorder matters”.
We have just witnessed that very focus from the Home Office in our discussion of the Police and Justice Bill, which has now successfully gone through this House. There, the Government drew back from some changes. They have reinstated magistrates as of right on police authorities and, at the request of the Association of Police Authorities, retained the authority of police authorities to make their own appointments. So there is recognition in other parts of the Home Office of the value of magistrates, local authorities and local councillors, yet here, we see the reverse happening.
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The regulations will weaken local involvement in criminal justice, begin the process of centralising probation governance on Whitehall and remove the critical local partners on whom effective work with offenders depends. It will do all that even before Parliament has the chance to consider the proposals in the NOMS Bill—a rather inelegant title—which we expect to be published by the end of this month. It is wrong of the Government to take action to pre-empt that debate. The Government should think again. They should withdraw the order, engage in proper consultation, and listen to the views of Parliament when we debate the legislation in November, December, or whenever it reaches Parliament. Then and only then should they bring forward proposals to alter the structure and character of probation boards. I beg to move.
Moved, That this House regrets the proposals set out in the Local Probation Boards (Appointment and Miscellaneous Provisions) (Amendment) Regulations 2006 (S.I. 2006/2664) and calls upon Her Majesty’s Government to withdraw the statutory instrument and to enable consideration of the proposals contained in it by each House of Parliament in the context of primary legislation on the management of offenders [46th Report from the Merits Committee].—(Baroness Anelay of St Johns.)
Lord Avebury: My Lords, this is the second time within a week that proposals have been put before us that have been introduced with minimal consultation that is far short of what is required by the Cabinet Office code of practice on consultation.
The National Probation Directorate said in its response to the Merits Committee’s questions on the subject that it did not think that a formal public consultation was required, but it consulted informally a number of boards and board members. It does not appear to have consulted the Probation Boards’ Association, the Magistrates’ Association, the Local Government Association, NACRO and any other major organisation that is concerned with probation and its future. The Probation Boards’ Association has said that the regulations,
- “will weaken local involvement in criminal justice, begin the process of centralising probation governance on Whitehall and remove the critical local partners on whom effective work with offenders depends”.
When the Government know that proposals they are going to introduce are controversial, it is only too easy for them to avoid criticism by picking a few consultees who can be cajoled into giving the right answers, while ignoring the leading players. I therefore suggest that there should be Cabinet Office guidance on these pseudo-consultations to ensure that the department at least asks for the official views of the organisations representing the persons or bodies principally concerned. I would be grateful if that suggestion could be referred to the Cabinet Office for its consideration and advice.
As a result of the useful work done by the Merits Committee, we now see more clearly what the real purpose of this exercise is. The Government pretend that they are offering greater flexibility, but this is in fact a preparatory step towards forthcoming
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Mr Harry Fletcher pointed out to me this morning that the distinction between high, medium and low-risk offenders is artificial because, although 35,000 out of the 50,000 offenders under supervision at any time are classified as low-risk, this low-risk group accounts for about 80 per cent of repeat offenders. I was reminded of the work of Professor Jean Floud many years ago on dangerousness, in which she found that there was no reliable scientific method of predicting the propensity to commit serious offences. Giving the easy cases to the private contractors and leaving a core probation service to deal with the hard ones simply will not work, because so many of the offenders will need constantly to be transferred between one category and another.
The argument behind the order is that the boards will need expertise primarily in commissioning and contracting out the services, and that they will not need to have much of a clue about how to deal with low-risk offenders. However, they will still need to cope with the 1,500 high-risk offenders, and—perhaps the Minister can confirm this—with the 13,000 offenders who are classified as medium-risk. Presumably, whenever a low-risk client commits a serious offence, his case will be taken from the private contractor and given back to the probation service. However these matters are to be dealt with, it is hard to see how the boards will discharge their functions if they are composed entirely of businessmen—I take it that they will be mostly men—without experience of the criminal justice system or, indeed, of the mental health or local authority services. Nor is it clear from the response to the Merits Committee who, under the new system, will have responsibility for the rehabilitation of offenders with alcohol problems, and it would be helpful if the Minister could say something about that when he replies.
We are not against the proposition that requiring four members of the board to be magistrates may be too prescriptive, but we note the Government’s apology for saying in the Explanatory Memorandum that there was substantial evidence that many magistrates and local authority members did not possess business skills. That is entirely in order because there was no evidence for this lack of skills among magistrates. I certainly hope that, as a result of this order, boards will not lose all knowledge of the criminal justice system now available to them from their magistrate members. That point has been made forcefully by NACRO, which is also among the bodies with which the Government did not bother to consult.
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Eliminating the requirement that two members should be local councillors is opposed by practically everyone I can think of, including the Probation Boards’ Association and the LGA. They point out that partnerships with the local authority and the police are at the heart of modern probation practice and are necessary for close liaison, joint funding and joint planning through local area agreements. NACRO says that the probation service needs to be closely linked with housing and education, since they are both crucial to the resettlement of offenders and the reduction of reoffending. The direct input from local authority representatives on the boards is a valuable way to ensure that these connections are strong and productive, and that probation services complement and reinforce the activities of local authorities in reducing crime. Napo has been told that it will no longer be necessary even for a member to live within the probation area, let alone be a member of the local authority.
We view with apprehension the upheaval which will ultimately sweep away the National Probation Service with the introduction of commissioning and contestability at regional level, of which this order is a precursor. We agree with the noble Baroness, Lady Anelay, that separating consideration of the composition of the probation boards from the foreshadowed primary legislation is wrong in principle. It deprives Parliament of its right to amend the proposals to reverse the damaging loss of the ties between the boards on the one hand, and the magistracy and local authorities on the other, while approving the greater flexibility of appointment periods and a reduction perhaps of the quorum, although I noted that the noble Baroness was not in favour of that either.
We agree also with Napo that moving towards a regional or national model will undermine the public protection work undertaken with partners in the courts, the police, health services, particularly mental health, sentencers and the voluntary sectors. We have not been able to identify a single organisation which is in favour of the upheaval that the Government are planning to inflict on the probation service, apart from the incumbent of No. 10, who will be leaving shortly—we hope. Is it too much to hope that with a regime change in the offing, there could be a moratorium on the harmful changes coming down the track for the probation service and that, as a sign of hope for the future, this order will now be withdrawn?
Viscount Tenby: My Lords, if a week is a long time in politics, a fortnight can prove to be an eternity. Only a fortnight ago, I expressed my unreserved thanks to the Minister, who sadly is not in her place today, to which she characteristically and generously responded, for saving that endangered species—the magistrate—from exclusion from police authorities. How quickly time passes. Now I find myself adding my voice to echo the concerns, which were so ably detailed by the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Avebury, about the effect of these new regulations, again in so far as
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Although I totally absolve the Minister from what I now have to say, the probation service has been the whipping boy of Governments of whatever colour over recent years. I recall the theory prevalent in some quarters not so long ago that shortages in the probation service could easily be filled by recruiting ex-warrant officers and the like from the Armed Forces, because it was a task to which they were well suited because of their experiences there.
Next came the wheeze—I think that that is the right word—of denying probation officers the chance to study for a degree because such high aspirations were deemed to be unnecessary for such a humble calling. Indeed, I remember being part of a delegation to the then Home Secretary headed by a distinguished former head of the Home Office, my noble friend Lord Allen of Abbeydale, who is sadly unable to be here today, where we managed to achieve a smart turnabout in government policy on this issue.
I apologise for a slightly extended preface, but the remainder of my remarks will be brief. I am sure that the Minister would rightly affirm that he has nothing but praise for the laudable achievements of the probation service. From my experience as a magistrate for 27 years, I can say only that I valued its contribution to my work immensely and can think of only a minuscule number of times when I disagreed with what it had to say. However, in my view these proposals will be damaging to that capability and will be unlikely to succeed in their objective of securing seamless offender management and disposal.
There is also much evidence that the consultation process—as I regret is so often the case nowadays—has been inadequate. It is also not entirely clear on what evidence the various assumptions in the original Home Office paper were made. The removal of magistrates and local government representatives from the boards some two years ahead of the establishment of the trusts is not a fully thought-out initiative, particularly in view of the appointment of so many new probation board chairs in the new year. Surely what the newcomers will want as they settle in will be know-how and experience to guide them through areas with which they may well be unfamiliar. Casting all that expertise aside at this time and in what I can only call such a sneaky way will be counterproductive in the end and make this very much more difficult.
I am also concerned that what is now an integrated system will be split into a number of unconnected operations. To cite an example, nowadays a sentence can contain several different requirements such as a curfew, supervision and perhaps even a course of treatment for anger management. Is it the case that each of these separate but closely linked requirements could become the responsibility of three separate enforcement bodies in the future? If so, there is more than an even chance of bureaucratic muddle and confusion lying ahead.
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Finally, I have to say that the additional costs involved in these ill advised changes would be far better deployed at the coalface where they are very much needed, and would present a far better chance for securing the reduction in reoffending targets which this Government very properly seek but I fear will not get with these proposals.
1.45 pm
Viscount Eccles: My Lords, being a member of the Merits Committee of your Lordships’ House provides a special interest in statutory instrument practice. If, in a somewhat technical way, I go beyond the comment made in the committee’s 46th report, those views are my own. We have before us Statutory Instrument 2664, with its Explanatory Memorandum, along with the department’s letter set out in the 46th report, and now we have the draft of an amended Explanatory Memorandum, as promised in the department’s letter. I will concentrate on board membership, the terms of appointment and the change from seven to five for a quorum.
As always, we are involved in a paper chase. As my noble friend Lady Anelay said, Schedule 1 to the 2000 Act confers the power to regulate and sets the minimum board membership at seven. Shortly after the Act came into force, Regulation 2 of Statutory Instrument 2000/3742 stated:
That is the position today, and it is not proposed to change it in the statutory instrument we are considering. As the department tells us, most boards operate at 15 members.
What is to be changed is the composition of the boards. The four local magistrates and the two local authority members, as we have been told, who have taken six places out of 15 as a result of Regulation 5(2) of 2000, are to go. No convincing explanation is given for this change. Indeed, the latest version of the Explanatory Memorandum states that the changes to be made will mean that,
Is it really suggested that magistrates and local authority members do not understand local circumstances? Although at first it was said that magistrates did not have the modern skills needed—what an abused, Humpty-Dumpty word is “modern”—this was rapidly withdrawn. Nor can anyone argue that there is not room within a board of 15 to include business acumen, human resource experience and knowledge of finance, diversity and competition, curiously angled and incomplete though this department list is.
As there has been no consultation and we do not have an ex-post evaluation of the six years of the boards working under the Act, we can only speculate as to the true reasons for the proposed change. Is it just a dislike of magistrates? Most probably so. No doubt the Minister will tell the House. When he does so, will he also tell your Lordships why there is no reference to the work of Her Majesty’s Inspectorate of Probation?
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We are also told that there are “sleeping” members of the 42 boards who,
as if to say in a board of 15 only seven can be expected to turn up—two of whom, with the chairman’s permission, may sleep. Indeed, the department says that most boards struggle to achieve a quorum of seven. This is given as the reason for reducing the quorum to five. What evidence does the department have for this most serious governance assertion? Has it been taken up with board chairmen and what has been their response?
There is also the matter of the terms of board appointment. Regulation 6 of Statutory Instrument 2000/3342 states:
“A member of a local probation board shall be appointed for a term of three years and shall be eligible for”—
This is to be changed by Statutory Instrument 2006/2664 to,
This means that a board member has no security of tenure whatever. What is the reason for this change? If, as has been said, it is to pre-empt Parliament because of intended legislation, that really will not do. If it is to change public appointments practice so that board members are wholly at the mercy of the Secretary of State, this is completely at odds with repeated assurances that bodies such as local probation boards are to be strong and independent. How can anyone be strong and independent if they have to keep looking over their shoulder, given the arbitrary power conferred on the Secretary of State?
The practice followed to date has not been in accordance with the Government’s declared policies for better or less regulation. The Minister needs to withdraw this instrument and think again. Second thoughts this afternoon are not enough.
Lord Ramsbotham: My Lords, I join the other Members of the House who have spoken following the very competent and comprehensive outline of the reasons for this Motion given by the noble Baroness, Lady Anelay. Three words spring to mind when thinking about this problem—“perverse”, “shoddy” and “unnecessary”. Those three words were emphasised by the fact that when I collected this piece of paper from the Printed Paper Office, I found that it cost £3. I was extremely glad that I was entitled to a free copy. I am not surprised that the Merits of Statutory Instruments Committee said that it required more explanation than the very thin Explanatory Note included in the instrument.
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