Probation - A New Future?

So, what to do, Probation, a new future? -  by Joe Kuipers

PROBATION
the justice ligament

This is to be a forward-looking blog. Will it make a difference? That is up to others, especially our politicians. This is not a short read, but if you are serious about the future of probation then a short read is not what you should expect at this critical time. And the 'ligament' reference becomes clear later on.

Here I set out a possible future for a probation service that serves victims, communities, courts, the parole board and offenders in a coherent, effective and affordable way. It will not pretend to have all the answers but it does paint a workable solution to ensure future effective services - not one with which all will agree but one that should serve as a discussion starter. The TR cacophony of sound or fanfare (depending on your point of view) will cease at some point and when that music stops, where will we be? Oh, and TR as proposed by the government can work - everything can work - a field hospital in Gaza can work but not as well as it ought and it is not one I would wish to be brought to. It is undoubtedly true that TR as envisaged will increase risks to the public and will fail to deliver the proposed benefits and savings. TR is an untried, untested, uncosted, unevidenced ideological experiment at a time when serious questions are being asked about the degree to which public services should be outsourced and about the competence of the MoJ in a contracting environment.

The future of probation is now fully a political matter, or rather one that lies in the hands of politicians and their senior advisers. I can only hope that enough politicians read this and that it helps to shape their thinking. Probation commentary has all but stopped from those within the profession, certainly from its current leaders so, other than intelligent discourse about the future from those now on the outside, politicians face the prospect of wearying spin and unrealistic reassurances from the MoJ. I can't blame officials for this - it is their job to do the will of their political masters. But a while ago I was asked (by a senior official) how I might construct a solution should the speeding TR train hit the buffers.

My central message to politicians is crystal clear and this blog sets out why: think very very carefully about the hasty share sale of the Community Rehabilitation Companies to new owners and do what you can to enable a full consideration of the implications of this final part of the TR process which will make any row-back almost impossible. If this is allowed to proceed (a timetable driven purely by the next general election) those with power and influence will only be able to look back with regret and wonder how they failed to appreciate the consequences of TR. The time to stop and think is now whilst both the NPS and CRCs are still in the public domain.

Let me be clear about my position at the outset. The proposals here are not a question of turning back the clock or of saving jobs. I start from the position that the cards are up in the air coupled with something I have said from the outset in previous blogs - this is about ensuring effective and safe probation services delivered to our communities in partnership between the public, private and community sectors, each with real and distinct parts to play.

What do we want probation to achieve?

Simple and pretty obvious really, and not controversial?

• fewer victims;
• less crime;
• less reoffending;
• fewer serious further offences by those being supervised (improved public protection);
• ex offenders as better citizens better equipped to make their contributions to their communities;
• demonstrable value-for-money outcomes.

What should be some basic underpinning business requirements and principles?

Again, not complicated, but possibly more controversial and building up from the service delivery end:

1. a holistic, coherent and consistent system of offender management (that is the assessment, sentence planning, risk review, court and parole board advice, etc) that enables the offender, service and partners to be clear as to who is responsible and accountable for what;
2. differentiated, efficient and effective offender interventions that take account of the needs and profiles of different offender groups (e.g. women) and ages, paying proper regard to equalities and applying the principles and practices of restorative justice, desistance theory and 'what works';
3. service delivery organised around the existing Local Delivery Unit structures;
4. a cohesive, intelligent and well-trained workforce with staff equipped to understand and influence (change) human behaviour in a complex social environment and able to communicate effectively;
5. sufficient middle managers to support and guide service delivery staff, and similarly for corporate and support services;
6. a cost-effective and lean senior management structure, and corporate services working to this senior management structure;
7. IT that works;
8. simple governance arrangements to separate service delivery responsibilities from policy making to avoid any conflicts of interest or undue influence in the delivery systems and that enable financial and business transparency fully open to public scrutiny;
9. understanding that the probation service is a community based operation with the key strategic and operational community partners being the courts, the parole board, the police, local authorities other community providers and that there needs to be an 'offender management relationship' with the prisons;
10. adherence to the 7 principles of public life. 

Probation was already demonstrating its effectiveness before TR, but no doubt can do better. This coupled with meeting the underpinning business requirements and principles should lead to:

• the confidence of those paying for probation services; and
• the confidence of victims, our communities, probation partners, the courts and parole board.

And now for the detail, and I guess, the devil.

To do this I propose to follow the format of the 10 business requirements and principles above.

1. A holistic, coherent and consistent system of offender management (that is the assessment, sentence planning, risk review, court and parole board advice, etc) that enables the offender, service and partners to be clear as to who is responsible and accountable for what.

I have argued, as have many others, that the fundamental flaw with TR is what I have called the disaggregation of offender management (and as a consequence the splitting of the staff into two groups), now located in two distinct organisations, each with differing responsibilities and functions. Offenders are routed through the NPS, either to remain with the NPS if they are 'risky enough' or to be allocated to the CRC if they are 'not risky enough'. Transfers between the two are based on risk changes, or the need for further assessments (i.e back from the CRC to the NPS for court reports, recalls to prisons, etc). In short TR has at a stroke created a fractured, incoherent and inconsistent system of offender management and introduced complex and unclear lines of responsibility and accountability. It is what I have called the 'fault line' in the TR proposals.

At the moment at least both organisations remain within the public domain, but the picture will change - potentially irrevocably - once the CRCs are 'sold' to the new commercial owners. This will mean new and even more complicated arrangements between the 7 NPS 'divisions' and the 21 commercially owned CRCs. The communication, responsibility and accountability permutations are going to be unavoidably difficult both to untangle and understand and will come to head when 'things go wrong' as they are bound to. They went wrong from time to time in the more coherent previous arrangements, and there will be further serious offences by supervised offenders. Communication, accountability and responsibility confusions are the last things needed when dealing with such serious matters.

So, what to do?

• bring the offender management function back under 'one roof' and retain it fully within the public sector to avoid the real dangers that further fragmentation are certain to create;
• do not proceed with the CRC share sale.

2. Differentiated, efficient and effective offender interventions that take account of the needs and profiles of different offender groups (e.g. women) and ages, paying proper regard to equalities and applying the principles and practices of restorative justice, desistance theory and 'what works'.

In a previous life, when with HMI Probation, I advocated strongly the need for the delivery of probation interventions to take place within partnership arrangements. My observation, even then, that probation did not have a divine right, regardless, to deliver all probation services given at a NAPO conference was not well received, and I was not asked back. For too long probation thought it could do it all and despite establishing 'contracting out targets' probation failed to respond adequately. This failure was in part the driver for the Offender Management Act that enabled services to be contracted out by the Secretary of State. At the time of the legislation it was anticipated that such contracting out would be for two main purposes: to enable proper competition for intervention services (i.e. the delivery of programmes, and specific services for specific offender groups, properly differentiated); and, as a mechanism to deal with a 'failing probation trust'.

I have never been protectionist, but neither have I sat aside as the unevidenced destruction of an increasingly successful probation service was taking place. As I have already said, and as I said to staff in our probation trust, it was not my job to save jobs but rather to enable the delivery of safe and effective services.

Looking at equalities, I am not fully versed in the implications of the equality responsibilities of commercial enterprises and the application of equalities legislation. However, it is my understanding that public and private sector equality duties are not the same, with there being a lesser duty on the private sector. Do we really want this?

Electronic monitoring (EM). How do I see the future? Regrettably I foresee a significant rise in EM at the cost of more human and productive interventions. EM is very useful, but generally as part of a programme of community supervision, rather than as a replacement for it.

Part of the differentiated services would include services to those sentenced to less than 12 months imprisonment, the part of TR all agreed on (but for the mechanism). There really is no need to place all those prisoners onto statutory supervision as about 50% do not reoffend. Why waste resources on those who do not need them? And a differentiated approach would include peer mentoring, within a properly supervised and accountable system of offender management. One of the greatest casualties of TR has been the effective dismantling of integrated offender management schemes (IOM) delivered in partnership with the police and others.

So, what to do?

• probation interventions should be included in a programme of market testing to enable those best able to deliver such services (on macro and micro levels) at the best price to do so. Fair competition must include the opportunity for the public sector to participate (as happens in HM prison Service);
• the delivery of differentiated services that endorse and reflect the spirit of equality duties must remain a priority;
• consider carefully the use of EM remembering that the profiles of most offenders include either thinking or behaviour deficits that cannot be fixed by EM;
• roll out IOM more fully and target support and supervision for those sentenced to less than 12 months on those who present the greatest risks of harm and committing further crimes. 

And, what about Unpaid Work? What is it? Well, in my view it is a combination of offender management (with the order being held and managed by the public sector), visible punishment in the community with, where possible, reparative intervention. There are many aspects of Unpaid Work that could be competed when looking at its component logistic and intervention parts, understanding that there is a core element of offender management.

3. Service delivery organised around the existing Local Delivery Unit structures.

This is about the only sensible and intelligent proposal to come out of an expensive consultancy probation review some years ago that preceded the creation of probation trusts. That review was the result of an earlier 'review' by Patrick Carter, if you like, the originator of the current tangled web.

It makes perfect sense for service delivery to continue to be based on the LDU structures, bringing it, as it does, within police and local authority boundaries. In the future this is the organisational building block for contesting localised services, recognising that some must be competed and commissioned at a much larger scale.

So, what to do?

• nothing, leave it as it is, but understand that the management structure that sits above the LDU can incorporate a number of LDUs. It remains critical that LDUs with the core function of a coherent and consistent offender management function must have quality senior leadership.

4. Cohesive, intelligent and well-trained workforce with staff equipped to understand and influence (change) human behaviour in a complex social environment and able to communicate effectively.

It is the function of probation staff supervising offenders to try to challenge and change the behaviour and thinking of offenders, to improve their life skills, and always with a focus on the victims and public protection. Probation is the controlled implementation of a supportive punishment; whilst it is a punishment it is not the role of probation staff to be punitive.

Managing offenders in the community and assessing their risks and needs are skilled tasks calling for careful judgement and understanding the offender as a whole person when reaching what could be major decisions. The fragmentation of offender management as already discussed does not assist this. Neither will a variably trained and qualified workforce. It may have gone unnoticed but the training requirements for staff eventually working in commercially owned CRCs are undefined. I have previously expressed concerns about this as the erosion of a consistent theoretical approach to changing offender behaviour presents our communities with serious risks.

So, what to do?

• retaining offender managers within one overall organisation mitigates the risk of divergent practice but it must be supported by suitable training for all offender managers with a recognised portable qualification;
• without being elitist, there must be sufficient entry requirements that ensure offender managers and other staff working in probation have the intellectual, emotional and communication capacities for the work which is demanding.

5. Sufficient middle managers to support and guide service delivery staff, and similarly for corporate and support services.

Quite simply, too much is expected of middle managers, made worse by the misinformed review referred to above. Those closest to the quality of the work, be that direct offender supervision or corporate services, are those doing it and their immediate line managers. What I know to be the case is that immediate line managers have been expected to have too great a span of control. They need space to 'enable and ensure' that what their staff are doing makes good sense. What I see to be the case is that somehow the 'enabling' function has slipped off the radar (generally) and that simple 'ensuring' is the order of the day. This resonates, it seems, with the shocking revelations coming out of Rotherham - managers preoccupied with systems (and self) rather than thoughtful reflection with practitioners about practice, be that offender or support focused.

So, what to do?

• a proper review of the middle manager role and function to ensure a sufficiency of managerial oversight of and support for practitioner staff allowing for proper staff supervision and appraisal.

6. A cost-effective and lean senior management structure with corporate services working to this structure.

I have already alluded to the LDU basis for service delivery and a lean structure above that. Some years ago I proposed the amalgamation of probation services into a regional structure (at a time when geographic regions were recognised as sensible), thereby realising cashable HQ premises, corporate services and senior management savings. It goes without saying that this proposal was not welcomed, especially by the then probation boards and senior managers. Also, at that time, I predicted that if probation boards did not rise up to this challenge then it would be financial pressures in the future that would drive them to this position in any case. It was a classic case of being right at the wrong time, and probably in the wrong way - meaning that it was as good as being wrong.

That said, part of that problem has been addressed by TR, and the structural changes made can now be developed and used to advantage. As I understand it we now have 7 NPS divisions (Wales, London + 5) and 21 CRCs, the NPS divisions with a deputy director (to the NPS national director and his team) and 21 CRC CEOs. This still makes for a total of 28 senior managers for a fairly small business. Now, I am fairly confident that our ex CEO for ASPT could have managed (very effectively) all the LDUs in the South West, as an example. Such a structure could be further enhanced by the Offender Management CEOs (perhaps a total of no more than 9) being supported by a deputy, and each OM division having its corporate services structure. In addition such an approach would immediately reduce the number of HQ premises.

So, what to do?

• use the TR structural changes as a staging post to a more radical reduction in senior management posts with a primary focus on about 9 offender management 'divisions'.
• realise the cashable savings from HQ and such staff reductions;
• align corporate services with this structure.

7. IT that works.

Where to start? Probation has been saddled with inadequate (putting it kindly) and morale sapping IT since I recall the introduction of CRAMS back in the 90's. All I read about (well, mainly) is the endless failure of N-Delius and its repeated 'fixes' and 'work-arounds'. You know you are in trouble when an IT system needs endless 'work-arounds'. The whole system is set to get more complex with the transfer of ownership of the CRCs to commercial enterprises, who will not be bound by N-Delius. On one level this is a good thing as it is such a poor system, but on another we then face the prospect of a plethora of different systems (after a long struggle to get one system for probation) which will inevitably fail to talk to each other. Do not be taken in by reassurances from the MoJ about this - just check the track record. A fragmented IT system can only be even worse.

So, what to do?

• Just get some people in who actually understand probation and data security issues to design a national probation IT system. Do not allow a fragmented IT system.

8. Simple governance arrangements to separate service delivery responsibilities from policy making to avoid any conflicts of interest or undue influence in the delivery systems and that enable financial and business transparency fully open to public scrutiny.

This is not the time to return to what was. As suggested above, moving to 9 offender management / probation divisions will require 9 governance arrangements. It is wholly inappropriate for the government policy arm to have such a service delivery responsibility (and this applies to HM Prison service also - look how freedom of speech has been restricted and how hidden the current issues in prisons are). There must be some clear blue water between those who have policy responsibilities and the delivery executive. The NDPB structure makes sense in that it enables a degree of independence (regrettably not exercised by most probation trust boards in the implementation of TR). It is both improper and dangerous for policy and executive powers to be in the same hands as political interference is a serious risk (the right argument used by the judiciary). Let's face it, TR is the perfect example of the dangers of implementing unquestionably dangerous political dogma. At a front line level it is questionable whether civil servants (the NPS), bound to do the bidding of politicians, should be giving sentencing advice to the courts. The concept and potentially the practice of 'sufficient independence' is compromised in such an arrangement.

There has been debate about the degree of transparency commercial enterprises should be subject to when delivering public services. Again it is a matter of regret that parliament has decided that the freedom of information act should not apply to the business sector (as I understand it), thereby restricting transparency. All in the name of commercial confidentiality. Is this what we really want - a probation service part of which (the NPS) is effectively gagged and subject to serious risk of political interference and the other (the CRCs) hidden behind the cloak of commercial confidentiality?

So, what to do?

• a degree of independence must be included in the governance arrangements for probation delivery. Whilst not a fan of 'boards' the proposed offender management / probation divisions need the support of an NDPB structure;
• the transfer of the CRCs to the commercial sector will inevitably lead to significantly reduced business transparency; another reason to reject this part of the TR process.

9. Understanding that the probation service is a community based operation with the key strategic and operational community partners being the courts, the parole board, the police, local authorities other community providers and that there needs to be an 'offender management relationship' with the prisons.

The 'close association' between probation and prisons has been an unmitigated disaster for probation. This is exactly as predicted by Sir Graham Smith when he was alive, one of the most thoughtful probation leaders we were lucky to have. When NOMS was first established prison leaders refused to 'play ball' as NOMS was led by probation leadership, quickly outmanoeuvred. It was only once prison leaders bullied their way into leading NOMS that they started to at least pay lip service to its establishment. Let's face it, it has been nothing other than a prison take over of probation and, whilst some of the leadership has tried to understand probation all the evidence demonstrates that these attempts have failed. What we now see is the transformation of part of probation (NPS) into a prison service clone, and I don't really think the current political and policy leadership cares too much as to the future of the CRCs.

A relationship between prisons and probation is needed to enable a degree of continuity of service and supervision of released prisoners. But, this does not mean probation and prisons needing to be joined at the hip. As an aside I would not have probation staff located in prisons, but that is another story. Probation is very clearly a community based business, and its primary delivery partners are the police, health and local authorities.

So, what to do?

• probation needs its own policy leadership, and own minister who would not be hijacked by prison service demands and priorities;
• the 9 probation divisional directors would be accountable, through their boards, via the probation policy leadership to their minister;
• a question remains as to the proper departmental location of probation - I could argue it should be in the Home Office as its primary objectives are public protection and reducing crime and reoffending and its close association with the work of the police;
• the metrics for probation should include crime reduction.

10. Adherence to the 7 principles of public life.

Our probation trust was proud to reference these standards. I repeat them here as they are worthy of a reminder:

Selflessness: Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.
Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.
Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands it.
Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
Leadership: Holders of public office should promote and support these principles by leadership and example.

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Probation is very much like the poorly understood ligament in the body. It joins muscle and bone, has a bad blood supply, is difficult to see with x-rays or ultra-sound and, if ruptured, takes years to repair, about 7 to be exact. A final total rupture can still be avoided.

So, will this make a difference? That is now up to others. And, remember, the truth cannot offend. Oh, and a justice secretary who lives up to the title could be good?

Joe Kuipers, 29 August 2014