A Possible Way Forward

Our good friend Joe Kuipers has duly delivered on his recent promise to come up with some sensible suggestions that, if followed, could get Gove off the hook and halt the terminal omnishambles that probation is rapidly descending into. This is an extremely important contribution to a vital debate and is republished in full with the author's encouragement:-     

Probation Re-unification.
Towards a better rehabilitation future.

It has been just under a year since I posted a blog. In that time I have followed the predictable TR shortcomings with dismay. Now we are in the expected period of slash and burn as CRC owners realise that there is not a pot of gold to be had. In the past I have put forward options for the future when constructive suggestions were thin on the ground. They remain so. Not congenitally a pessimist I am having another go.

But, why should we be pessimistic about probation re-unification?

• We have a government that is wholly pre-occupied with money and a foolish belief in the market as the solution to every challenge. It is a government with little concept of values and principles, believing that privateers can and will balance the need to make profits with altruism and fair play;
• There is no money for new changes;
• Mr Gove has appointed Govites into the key justice inspectorates, raising questions about the politicisation of HMI Probation in particular;
• Prisons trump probation and the leadership of NOMS is effectively the prison service who, despite claims to the contrary, just do not get probation;
• CRC owners have not as yet completed the MoJ’s and NOMS’s dirty work of staff culling;
• Sentencers do not seem to care too much;
• NAPO appears on the perpetual back foot;
• The PI wants to be friends with everyone;
• Probation has been airbrushed out of the picture;
• Unified data is now lacking and national standards have been eroded;
• Commercial confidentiality rules;
• NPS and CRC leader tweets have yet to say anything about outcomes and results, but say plenty about meetings attended.

Wow, quite a list which is no doubt far from complete. So, is there any room for optimism? Yes.

• TR is not working for all the reasons that were predicted at the outset;
• TR will not work, for all the reasons that were predicted at the outset;
• CRC audits point to developing failures;
• HMI Probation reports struggle to be positive;
• The MoJ has recently announced that ‘in house modernisation’ was the better way to go when rejecting other privatisation plans;
• Mr Gove needs coherent, consistent, reliable and trusted community provision if he is to translate fine justice words into action;
• PbR is not likely ever to be the right approach to improve the delivery of complex social interventions, inevitably leading to malversation;
• Communication problems are highlighted by the need for hugely complex guidance about case transfers between YOTs and probation. YOTs are not happy with the current arrangements;
• CRC owners will want to get out of costly contracts that fail to deliver profits and create headaches for shareholders;
• The dead weight of the previous probation boards and the PA has been swept away;
• At some point, probably driven by SFOs, sentence complaints, reoffending and costs data, accountability weaknesses and NOMS failures to manage the system the penny will drop that a unified probation / community provision supported by the private and third sectors is necessary; and,
• Without hope and optimism where are we?

I am not about to advocate a return to where we were pre TR, but will propose a simple mechanism to restore some order to a failing system, failures that impact on victims and communities and deliver a disservice. I do not intend to replay the history and my critique of TR, already set out in my detailed and extensive blogs posted from 2012 up to January 2015.

You can find all my blogs at joekuipers49.blogspot.com

Supporting a sense of optimism are a couple of other recent publications.

Firstly, Julian Le Vay published “Competition for Prisons – Public or private?” in December 2015. He devoted a section to probation TR, essentially pointing out how not to do it (but as an advocate of privatisation). He highlights the flimsy basis for TR and repeats all the arguments raised at the time for not progressing with TR in the terms demanded by Grayling, blindly and unthinkingly followed by his NOMS prison-centric officials with a seeming degree of relish. Before setting out Le Vay’s comments about TR a reminder of what Michael Spurr wrote to all probation staff on 9 September 2013:

"I know staff will understandably have questions and concerns as we enter a period of significant change – but I also know they share a common goal to reduce reoffending. If we implement these reforms well (and I am determined that we will do so) we will continue to deliver our responsibility to protect the public and drive a long term change in levels of reoffending. That is a prize we all want – and one that working together we can achieve.

We need to take staff with us and there are some key messages which they need to hear to help them through the uncertainty of what is undoubtedly a complex change process. I have attempted to set some of these out in the attached briefing pack but in essence I think it’s really important for colleagues that:

• The driving force and objective of the reform programme is to reduce reoffending. It is not about short term financial savings but about achieving a step-change in reoffending.
• The Probation Budget is being protected, relative to other areas, broadly maintained at around £800m. This is necessary in order to extend services to the under 12 month group.
• Restructuring how Probation delivers its work is necessary in order to deliver the extension to the under 12 month group and achieve the payment by results outcome focus to drive innovation and change.
• These reforms will open up delivery of probation services to a wide range of potential providers. We are clear that we are keen to see partnerships between VCS and private organisations coming forward and drawing upon the expertise that exists amongst current probation staff.
• New structures will be introduced by April 2014. The process to move staff to the new structures is covered by the Cabinet Office Statement of Practice (COSOP) arrangements. This provides protections for staff on transfer.
• NOMS will take direct responsibility for the new National Probation Service and for the 21 Community Rehabilitation Companies from April 2014, and we have been working hard with Programme colleagues and with Trades Unions to ensure that processes for transfer are fair and that staff are properly protected and looked after.

We are committed to working closely and positively with Trades Unions and with staff to ensure a smooth transition to the new delivery arrangements when the 21 CRCs move to new providers in the autumn 2014.

As you know Trusts will be wound up by April and for that reason the work to begin the transition must begin now. The progress we have made with Trades Unions to develop a national framework for transfers has been positive, and I am confident that the package on which you will consult with staff for 19th September will be the best deal we can offer – with proper protection in place for pensions, voluntary exit packages etc. NOMS is a good, responsible employer and, as CEO, I am absolutely committed to ensuring that staff are treated properly, fairly and consistently throughout the process.

Although there is uncertainty at present there will be plenty of new opportunities for staff once we move to the new arrangements in April, both in terms of professional/career development and in terms of developing innovative new ways of working. Both the NPS and the CRCs are vital if we are to deliver our objectives and there will be genuinely new and exciting opportunities for colleagues in both sectors going forward."

Hmmmmm.

Julian Le Vay, with whom I worked when the plans for increasing private and third sector involvement in probation delivery were being considered (and I have no problem with private and third sector inclusion in probation delivery but as part of a supply chain managed by public sector probation) makes the following points:

• long term 'invest to save' promises in complex systems are always problematic. The MoJ refused to give estimates for costs and saving for this major government change programme. The leaked risk register for the programme gives an 80% risk that expected savings will not be achieved;
• if the probation service was too prescriptive why did Government not reduce the controls?
• if the public sector was not good enough at probation delivery why give it the very highest risk cases?
• the organisational and delivery models were untried, untested, over-complex and highly risky. Communication confusions, over- and under-laps, and additional structural hurdles were entirely predictable in a Criminal Justice System not known for effective information flows across institutional boundaries;
• a recent cross-governmental study of PbR schemes concluded that the rationale of using PbR schemes was often lacking & with TR carried financial risks that were not always properly understood (NAO 2015);
• the MoJ capacity to manage changes to achieve the new systems was and remains questionable (being very kind). The MoJ had just emerged from an excruciatingly critical audit of its contract management functions and was described as unable to cope adequately with its existing responsibilities. Yet it was expected to take on huge new and far more sophisticated contracts – not credible;
• the decision not to mandate qualifications & training, but to leave it to each CRC to decide on skills required & training levels risked competence & professional standards;
• it was, and remains unclear how government would deal with supplier failure either of performance or outright financial failure or withdrawal other than by rapid market consolidation. Contingency plans were not clear to the Justice Select Committee;
• the approach to risk was foolhardy with many involved in the programme commenting on the way it was simply asserted that issues would be fixed and managed. Difficulties were wished away. The TR programme was the only one examined by the Major Projects Authority where no information whatsoever was given due to commercial confidentiality;
• Le Vay concluded that he TR changes lack any compelling rationale or evidence, were uncosted, required extremely rapid implementation of new, highly complex organisational & relational models for all participants simultaneously, used payment mechanisms that were entirely untested & carried major risks of unforeseen consequences, relied on new & untested suppliers, required high levels of competence in contracting & contract management that the MoJ had recently been shown to lack and were being implemented at break neck speed for no reason - and there seemed to be no recovery plan if TR went badly wrong. He states that “it is like watching people doing their best to organise the perfect train crash”. And, this is a book praised by Martin Narey and Phil Wheatley.

Secondly, Sue Higgins of the NAO posted a blog on January 5 on the Art of Spending Public Money Wisely. She highlighted four broad issues that impede public service improvement and lead to poor services for citizens. The following are quotes from her blog:

“Often with the best will, government has a tendency to overlook conflicting priorities, ignore inconvenient facts, allow what’s out of sight to be out of mind, and just not learn from mistakes.”

“Big promises can result in unrealistic timeframes, simultaneous changes placing conflicting demands on resources, and rushed planning undermining sustainability.”

“Where organisations take time to acknowledge the challenges, benefits have been realised. Portfolios of change programmes can be managed; planning and capacity-management can avoid expensive mistakes.”

“”The elephant in the room” tends to be the optimism bias, the unrealistic assumption that is treated as the “likely result”, leading to under-delivery of benefits and over-run in time and money.”

“Although assumptions are unavoidable, results can be improved considerably by understanding the limitations of assumptions, considering the consequences of variation in their accuracy, monitoring their achievement, recognising and addressing risks, and tackling complications head on.”

“Localism can have great benefits. But devolving responsibility puts public service delivery beyond the day-to-day consideration of central government, which may then make funding and policy decisions without consideration of the local consequences. Accountability chains become long and complex, often meaning reduced accountability for public spending and a lack of understanding of how users are affected. As our recent reports on financial and service sustainability have shown, there needs to be better lines of accountability, a long-term view, consideration of knock-on effects, performance and cost data, evaluation and response, and sharing best practice across sectors.”

Ms Higgins also questions by implication that government is not much good at learning from mistakes. In the TR context the MoJ and NOMS managed to make every mistake. We have to hope that they can and will learn.

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.

Business requirements and principles. 

Again, not complicated:

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. The fundamental flaw with TR is the disaggregation of offender management, leading to complex communication arrangements (between CRCs and the NPS, with YOTs, courts, etc), multiple providers working inconsistently, unclear lines of accountability and responsibility; and now loss of transparency as CRC providers hide behind commercial confidentialities;
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 supported by an 'offender management relationship' with the prisons;
10. adherence to the 7 principles of public life. 

So, what’s the plan?

Julian Le Vay argued that there was no recovery plan should ‘thinks go wrong’. Well, there is, and it is quite simple. First and foremost bring the offender management function back under 'one roof' and retain it fully within the public sector to avoid the real dangers that further fragmentations are certain to create. All that is required is to bring CRC staff into the NPS, a small step. In tandem with this fundamental and totally necessary part reversal develop the structural TR changes to advantage. 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 spread amongst a small supplier base with developing structures. This still makes for too many senior managers for a fairly small business. Keeping with the LDU structure I advocate perhaps up to 9 Offender Management divisions led by CEOs (replacing the NPS deputy directors) supported by a deputy and LDU cluster ACOs, with each OM division having its corporate services structure.

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, balancing the accountability to government as civil servants and addressing the inappropriateness 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. Something like an NDPB structure makes sense in that it enables a degree of independence. 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, without some intervening more localised governance arrangement. The concept and potentially the practice of 'sufficient independence' is compromised without such an arrangement. A new model of governance that does balance the responsibilities of staff employed as civil servants with more local accountabilities should also apply to prisons. The 9 OM Divisional CEOs would be accountable, through their boards, via the probation policy leadership to their minister.

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. 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. Probation is very clearly a community based business, and its primary delivery partners are the police, health and local authorities. The changes advocated would require strong separate probation leadership, either in the MoJ or Home Office. Probation needs its own policy leadership, and own minister who would not be hijacked by prison service demands and priorities.

Supporting such changes is the 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 (to date) 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?

There are a number of ancillary but important matters:

• 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;
• 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;
• 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;
• 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;
• 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.

And, finally, some bigger picture strategic options around the commissioning of services and interventions:

• The MoJ or HO retains responsibility for nationally commissioned services / interventions;
• The MoJ or HO transfers its more local commissioning responsibilities and budgets to PCCs or to groups of PCCs (that match the potentially new OM divisions), and makes use of ‘earned autonomy clauses’ as the PCCs proved capability and capacity;
• The MoJ seconds existing key commissioning personnel into the PCC commissioning function to build capacity and ensure and enable alignment between the PCC plans with MoJ / HO objectives and between MoJ and HO objectives;
• The PCCs will include consultation with probation, local authorities, sentencers, victim organisations, YOTs, more local bodies and strategic partnerships in building its wider Police and Crime plan to ensure local probation / community offender management priorities are considered and are affordable;

The PCCs will performance / market test and compete intervention services with an intention to drive down costs and improve effectiveness. This will allow for market development and supply chain building.

Without doubt there will be flaws in these proposals and arguments, but I can only hope that they will at least spark some further thought and consideration. It is hard to conceive of an arrangement that is worse than that which Grayling foisted onto the public.

Joe Kuipers, 11 January 2016