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What next for probation?

Last night at midnight, the Ministry of Justice formally concluded its public consultation on how to re-model the failing probation service

Civil servants will have to read and analyse several hundred submissions from academics, voluntary and private organisations who work with offenders, probation practitioners and ordinary members of the public.

You could forgive those working at 102 Petty France for feeling a sense of frustration at this task since it is only three and a half years since they finished the last redesign of probation, known as Transforming Rehabilitation (TR).

TR was the MoJ’s project for the biggest overhaul of probation since its origins in 1907. The MoJ published the original consultation paper: “Transforming Rehabilitation: A revolution in the way we manage offenders” in January 2013 before setting out a strategy in May of that year which trumpeted the transformation it hoped to achieve:

  • A new public sector National Probation Service will be created, working to protect the public and building upon the expertise and professionalism which are already in place.
  • For the first time in recent history, every offender released from custody will receive statutory supervision and rehabilitation in the community.  We are legislating to extend this statutory supervision and rehabilitation to all 50,000 of the most prolific group of offenders – those sentenced to less than 12 months in custody.
  • A nationwide ‘through the prison gate’ resettlement service will be put in place, meaning most offenders are given continuous support by one provider from custody into the community.  We will support this by ensuring that most offenders are held in a prison designated to their area for at least three months before release.
  • The market will be opened up to a diverse range of new rehabilitation providers, so that we get the best out of the public, voluntary and private sectors, at the local as well as national level.
  • New payment incentives for market providers to focus relentlessly on reforming offenders will be introduced, giving providers flexibility to do what works and freedom from bureaucracy, but only paying them in full for real reductions in reoffending.

As a result the probation service was split into the National Probation Service which serviced the courts and supervised all high risk offenders and 21 new, private Community Rehabilitation Companies (CRCs) who supervised medium and low risk offenders. The new providers started work in February 2015.

The new system was beset by problems and the subject of extremely critical reports by the National Audit Office, the House of Commons Justice and Public Accounts Committees and the Probation Inspectorate. Criticisms included the fact that several private probation providers (the CRCs) were supervising low-risk offenders almost entirely by telephone, that the “through-the-gate” resettlement work was largely ineffective and that magistrates and judges were losing confidence in community orders supervised by the CRCs in particular.

The final blow was probably the Chief Inspector of Probation, Dame Glenys Stacey’s annual report published in December 2017 which concluded that:

  • TR was not working.
  • The Community Rehabilitation Companies in particular were under-funded.
  • Any probation system which does not guarantee consistency in offender manager-offender relationships is unlikely to work
  • Any model which abandons specialist interventions for offenders which have been proved to be effective is flawed.

The MoJ invested more funds in the failing CRCs but performance did not improve sufficiently, forcing Justice Secretary David Gauke to acknowledge the difficulties and announce a re-launch on 27 July this year. He announced that:

  • Offender management on low and medium risk offenders would be transferred to the National Probation Service in Wales.
  • The CRC contracts are being cut short with the end date being brought forwards from 2022 to 2020.
  • CRCs will now be aligned with the NPS areas (making 10 English probation regions) and a new procurement exercise will be launched with the expectation that more voluntary sector organisations will be involved in delivering interventions and unpaid work – an ambition unrealised in the original TR procurement exercise.
  • Recognising current under-performance, the MoJ will put additional money into contracts for through-the-gate work in particular.

On the same day, the MoJ published the consultation where it asked 17 key questions aimed at improving the way probation works, most of them focusing on the criticisms listed above.

Throughout TR’s brief existence, many probation commentators have campaigned to roll back the changes; arguing that the 35 local Trusts who delivered probation prior to TR were doing a good job, that TR was driven by an ideological desire for privatisation and that the best solution was to return to the status quo ante and renationalise probation.

Political realities dictated that this was never going to happen. It was always extremely unlikely that a Conservative Government would admit that a privatisation project has failed and Chris Grayling, TR’s principal architect, still sits at the Cabinet table.

The difficulty facing those civil servants at the MoJ who are charged with writing the official response to the views expressed via the consultation is that the public were not asked to comment on the two underlying causes of most of TR’s problems.

Firstly, the probation budget, like that of the prison service, was cut too harshly with the new private probation providers unable to deliver a quality service for the contract price. Although the MoJ has put some money back into these contracts, the department is facing additional cuts from the Treasury this year and will not be able to return to former funding levels.

Secondly, and for me an even more fundamental problem, was the decision to design a split public-private service. Everyone affected by probation — courts, Police and Crime Commissioners, partner organisations, victims and offenders themselves — sees probation as a single service whose aim is to protect the public and help offenders desist from crime.

Since TR, this has not been the operational reality. The National Probation Service prepares court reports on all offenders and then passes over the low and medium risk ones to be supervised by the CRCs. If an individual fails to comply with the requirements of their order, the CRC can’t return them to court but must ask the NPS to do so on its behalf. Similarly, the CRCs are charged with doing pre-release resettlement work in prison not just for their own clients but for the high risk offenders who will be supervised by the National Probation Service on release. Predictably, this has been a recipe for disaster with a huge increase in bureaucracy as offenders are passed back and forth across the public-private divide with each organisation only concerned with its individual targets rather than the greater good of reforming offenders and protecting the public.

This fragmentation is the root cause of many, indeed most, of the key questions raised by the MoJ be they sentencer confidence in community sentences, better through-the-gate work or a new common professional training system.

It is for the elected government of the day to decide whether probation should be a public or private enterprise bu,t for the life of me, I find it hard to see how the current two-tier model (which the MoJ has already decided to keep) can succeed. I fear that without a return to a unified probation service (even if that service is delivered by a private company in some areas), the civil servants reading those consultation responses will be wasting their time.

Russell Webster is an Independent researcher and consultant