Justice secretary Chris Grayling’s ambitious probation outsourcing is being pushed through at breakneck pace. But many criminal justice professionals remain unconvinced that the changes have been properly tested and planned
When justice secretary Chris Grayling last month announced a two-month delay in the termination of existing contracts with the 35 probation trusts in England and Wales, many criminal justice professionals breathed a sigh of relief. Three months earlier, the chairs of three trusts had warned Grayling that his timetable to hand over to their proposed replacement bodies could put public safety at risk. But despite the extra breathing space for the transfer of cases, the Ministry of Justice hasn’t changed the final deadline for its reform plans: it wants the new system up and running by December.
As Grayling announced the delay, the Justice Select Committee released a report raising serious concerns about the reforms – not least their tight timescales. The committee’s report was carefully worded, due to divisions along party lines on the principles of the reforms. But its members agreed that witnesses, “including some supportive of the proposed changes, had significant apprehensions about the scale, architecture, detail and consequences of the reforms and the pace at which the government is seeking to implement them.”
During his time as an employment minister, Grayling was intimately involved with the Work Programme – another reform enacted at breakneck speed – and he told the justice committee that he’d been influenced by the way it was delivered. But the committee noted the remarks of one witness who pointed out a major difference: the Work Programme, unlike probation reforms, did not involve the creation of a whole new service. As Savas Hadjipavlou, chief executive at the Probation Chiefs Association, says: “The DWP had been working on provider provision for at least five to eight years – it was already a relatively mature market.”
The government is already well advanced in selecting contractors to manage low- and medium-risk offenders in the 21 ‘contract package areas’ which will replace probation trusts. It has announced that 30 bidders are in the running, but has not said how many are bidding in each area. The committee’s report says: “It remains to be seen if this will prove a sufficient number to provide satisfactory bids for a viable service in all 21 contract areas.” Speaking to CSW, committee chair Alan Beith says he expects some bidders which lose out on popular areas to be encouraged to seek contracts in areas with fewer or no bids.
Under the new arrangements, the National Probation Service will retain responsibility for monitoring high-risk offenders, and a number of witnesses raised worries about this split of responsibilities. Tania Bassett, parliamentary and campaigns officer at probation trade union NAPO, explains: “We know that in cases where risk increases, that can happen suddenly. If an individual deemed to have become higher or lower risk has to transfer to another organisation, they will lose the continuity of dealing with the same officer, as well as introducing bureaucracy into the system. “
The committee’s report argues that this aspect of the reforms provides “additional risks over and above the current situation which will be challenging to remedy through contractual specifications.” Beith says the government must ensure there are no perverse incentives that might deter contractors from passing offenders back to public sector staff if risk increases.
Another area of concern raised in the committee’s report emerged from one of the main drivers of the reform. The new system will, for the first time, introduce probation support for offenders receiving sentences of less than a year. The committee raised the possibility that some offenders who’d currently be given community sentences might in the future go to prison, as magistrates hand out short sentences in order to win them probation support. Richard Monkhouse, chairman of the Magistrates Association, tells CSW: “This is a definite possibility. If a magistrate thinks a person might get more support, they might be more tempted to give them a short prison term.”
One of the biggest challenges raised by the committee is how a new payment-by-results system would operate. One of the key tenets of the reforms is that the contracts will include an element whereby providers will be paid according to the rehabilitation outcomes they achieve. However, unlike other such initiatives, the PBR element forms a very small proportion of the total payments on offer, with the majority being made up of payments for mandatory services. Richard Garside, director at the Centre for Crime and Justice Studies (CCJS), says: “Typically, only 5-15% will be payment by results. Providers could be tempted to build budgets around the 85 per cent.”
Another weakness in the system’s ability to boost rehabilitation lies in the requirement – introduced for quite understandable reasons – that providers demonstrate statistically-significant improvements in reoffending rates before receiving PBR cash. Hadjipavlou points out that providers will be able to allow reoffending rates to rise by a couple of points without suffering any financial penalty, and notes that those which do work hard to tackle reoffending will have to shift rates significantly before they see any return. “The way this is currently structured, they would often be spending money for no return,” he comments. Beith is clear: “The government needs to make sure there is some capacity to review the PBR mechanism once it begins operation.”
Beith expresses frustration that the committee was unable to make proper judgements on some aspects of the MoJ’s proposals. He acknowledges that it is difficult for the government to release certain information before the procurement process is complete. However, his committee criticised the department’s refusal to provide information on risk assessment and mitigation. Beith says: “One of the big areas of concerns we had is the unknown nature of the failure plan – what happens if a bidder wants to drop out of an area.”
Despite support for the principles of reform from some members of the committee, the final report raises doubts about the department’s capability to implement the new system. Citing previous outsourcing failures, including the courts translation services debacle, it says: “The MoJ has a questionable track record in procuring quality services when seeking better value for money.” Bassett says she is unsure whether the MoJ is worse than other departments at procurement, but points out: “The implications of failure are greater here – there is a significant threat of harm if things go wrong.”
Asked for a comment, the Ministry of Justice provided a statement from justice minister Jeremy Wright, who denied that the reforms are being rushed: “We have always been clear that our thorough plans will be rolled out in a controlled way, with robust testing at every stage,” he said, adding that the government will continue to engage with “all relevant parties”.
However, many of those who spoke to CSW were unconvinced: several used the word “ideological” to describe both the reforms, and their pace. The CCJS’s Garside says: “The problem is that we have a secretary of state coming from the DWP, with the sincere belief that the Work Programme has been a massive success.” And the committee itself concluded that an absence of pilots creates “some lack of confidence” that the reforms will improve the system. But with a general election looming, the bulldozer shows no signs of slowing. Monkhouse says that that although magistrates are unclear over how the reforms will play out, their options are shrinking to just one: bite the bullet, and “see how it works in practice”.