The Future According to Reform 2

It seems highly likely that when politics returns to something approaching normality after next weeks EU referendum, whether we like it or not, probation is going to enter a new phase of turmoil and change. Everyone, including Gove, now knows TR has been an unmitigated disaster and the present chaotic state cannot continue. 

Having reversed virtually every one of Grayling's policies that were designed to save money, the MoJ is now faced with having to make cuts elsewhere and the hugely bureaucratic and unloved NOMS would seem to have no place in the new world of devolved control being given to prison governors. So that just leaves the irritating problem of what to do with the increasingly sclerotic NPS and the asset-stripping CRC contractors?

Increasingly, the mood music in the form of right-wing think tanks like Reform, appears to be indicating giving the whole lot to PCC's to try and sort out, but how exactly when the motley crew of CRC contractors would hardly seem up to the job of handling the high risk end? There's also the thorny problem of private contractors writing court reports? I bet Gove wishes he could magic away those pesky 8 year Grayling contracts that would now appear to be a significant barrier to re-uniting both elements of probation once more.

Given all this, it would seem sensible to start urgently giving some serious and careful consideration to what's being discussed and sketched out on fag packets in order to see if something can be salvaged from the omnishambles visited upon us by Grayling, award-winning civil servants and clueless Liberal Democrats. It may prove tedious to some, but I think it's worth ploughing through the Reform report line by line, starting with a reminder of just how we got to where we are now.             

1. Enduring problems

Reform of the offender management system over the last decade and more has sought to deal in one way or another with three inextricably linked issues: 

• reoffending rates which have remained stubbornly high; 
• a prison population which has consistently pushed against the available capacity in the prison estate; and 
• an increasingly pressing need to improve the value for money of the system, by improving performance and driving down cost. 

Whilst there has been some success in tackling each issue, progress, as this chapter will demonstrate, has been limited. Meeting these challenges will require radical reform to overcome longstanding barriers. 

1.1 The current context 

1.1.1 Reoffending rates 

Headline reoffending rates for adult offenders have barely shifted in 12 years. The most recent data published by the Ministry of Justice (MoJ) show a proven reoffending rate of 24.9 per cent. Whilst this is a marginal decrease (0.2 percentage points) on the previous year, as the MoJ note, reoffending rates have remained broadly static since 2003, fluctuating little between 24 per cent and 27 per cent.

Reoffending rates for offenders sentenced to custody have likewise scarcely changed since 2003, fluctuating between 45 per cent and 49 per cent. For those serving short prison sentences (less than a year), the reoffending rate has remained around 60 per cent over that period.

For offenders receiving community sentences, the news is slightly better with a reduction of six percentage points since 2003 (from 39.9 per cent to just under 34 per cent).

The Coalition Government sought to address this. The Offender Rehabilitation Act 2014 extends post-release supervision by probation to prisoners serving less than a year in custody. This much overdue reform ensures that, rather than leaving prison with no statutory supervision, the 45,000 or so short-sentenced prisoners will now be subject to the threat of recall and gain the benefit of rehabilitative support.

In parallel with the implementation of the 2014 Act, the Transforming Rehabilitation programme introduced Community Rehabilitation Companies (CRCs) to deliver local offender management services for low and medium risk offenders, paid via a payment by results (PbR) system that rewards statistically significant reductions in reoffending. It is hoped that the PbR focus will drive innovation and best practice across probation providers.

1.1.2 Prison population 

The increase in the prison population since 1993 has been well documented. Between 1993 and 2012, the population more than doubled, rising from under 42,000 to over 86,000 (at a rate of more than 4 per cent a year between 1993 and 2008).This increase has been driven by greater use of custodial sentences; higher numbers of recalls to custody for offenders on post-release licence; and by increases in average sentence lengths. Over the last three years, the population has remained relatively steady at around 86,000. As of 18 December 2015, the total prison population was 85,641 with a total useable capacity of 87,765 (an occupancy rate against useable beds of nearly 98 per cent).

The prison population is forecast to continue to increase and to reach slightly under 90,000 by the end of 2020-21.17 It may rise further if political pressure continues to propel further growth.

Under this pressure, the system can only respond by managing the population effectively and efficiently to achieve the best possible outcomes. With a very small operating margin, management of capacity becomes an operational priority, to the exclusion of other objectives such as ensuring prisoners are kept close to home or the facilitation of good resettlement outcomes. It also makes it more difficult to ensure that prisoners are in the right place at the right time, in order to receive the right interventions at the right point in their sentence. 

In addition, high levels of prisoner throughput, in particular in local prisons, inevitably degrades the quality of care and support as resources are focused on responding to increased prisoner flow. 

A key question for reform of the offender management system is, therefore, whether it supports the most effective management of prison capacity, or whether in reality the objective becomes the most economic management of prison capacity. 

1.1.3 Value for money 

This tension between effectiveness (delivery of the most value per pound spent) and economy (delivery at the lowest spend per offender) is the challenge the MoJ has faced since 2010. Finding a middle course between these two has been required as, by the end of the 2010 Spending Review period, NOMS had to deliver nearly £900 million of cashable savings in spending on prisons and probation.

More than a third of this total has been delivered by implementation of a programme of efficiency benchmarking in prisons – a classic economy measure whereby prisons delivering the same outputs at higher cost have been challenged to reduce their spend in line with the ‘best-in-class’. A further £170 million has been secured through the closure of older, more expensive prisons and their replacement with modern, lower unit cost, facilities.

Pressure remains on NOMS to cut costs over the duration of the 2015 Spending Review period, with savings of £80 million planned in prison expenditure. To achieve this, the Government plans to invest £1.3 billion to modernise the prison estate by replacing outdated capacity in old and ‘hard to manage’ establishments with new fit-forpurpose prisons.

Significant reductions in probation spending were also delivered over the course of the 2010 Spending Review (nearly £120 million), with efficiencies delivered through the Transforming Rehabilitation programme reinvested to fund post-release services for short sentence prisoners.

Against a background of continuing fiscal pressure, reform of the offender management system must, at the very least, deliver the same outcomes for reduced costs. This means commissioning services in a way which enables cost control and prison management which is at least as good as the current arrangements. Delivering better outcomes for lower spend requires investment in services which maximise successful outcomes at each stage of the offender management process. 

1.2 Barriers to an effective offender management system 

1.2.1 NOMS 

Prison and probation services in England and Wales are commissioned, managed and provided by the National Offender Management Service (NOMS). NOMS was created in 2004 to integrate management of HMPS and the Probation Service. 

NOMS has had a troubled history. In its original incarnation, as part of the Home Office, it failed to secure the system-wide change envisaged by the Carter Review. In particular, it failed to meet the objective of ensuring seamless management of offenders, which it sought to achieve by putting the Probation Service in a controlling position in the offender management system. Alongside a badly botched attempt at introducing a common case management system (Nomis), the original incarnation of NOMS promised much, but delivered little. 

Re-launched in 2007, in parallel with the creation of the MoJ, the current incarnation of NOMS has made real progress, delivering the previous Government’s Transforming Rehabilitation programme alongside very significant cost reductions.

NOMS was created in 2004 with three aims:

• to reduce reoffending, primarily by breaking down the silos separating prisons and probation; 
• to deliver a system of end-to-end offender management; and 
• to deliver the most cost-effective services through increased contestability (more competition). 

There were a number of key barriers which prevented NOMS from achieving these aims. 

1.2.1.1 Inability to integrate workforces 

The first key barrier related to workforce reform. HMPS is unusual for a frontline service in that its staff are civil servants, and therefore are eligible for entry into the Principal Civil Service Pension Scheme (PCSPS). Those working in probation, having originally worked in local government, were members of the assorted local government pension schemes run around the country. The fundamental difference between the two is that the local government schemes are ‘funded’, whereas the PCSPS is ‘unfunded’. These two different pension schemes – and the potential costs involved in assimilating the two groups of staff onto a single pension scheme, have been a significant barrier to breaking down operational silos by integrating the two separate workforces. 

1.2.1.2 Short-term focus on prison capacity 

The second barrier was the constant pressure to produce ever more capacity as prison populations grew. The NOMS management was therefore focused on finding land to build new prison capacity, whilst also meeting the daily pressure of finding sufficient beds for all the prisoners sentenced by the courts: short-term capacity management inevitably trumped developing new strategies to find long-term solutions. This led, for example, to the introduction of the End of Custody Licence (which released eligible prisoners 18 days before their release date). This was a short-term measure, which lasted until February 2010, but which freed up prison capacity. It was acknowledged by the then Justice Secretary to be “not satisfactory”, but around 80,000 prisoners were released early under the scheme.

1.2.1.3 Poor macro- and micro-implementation of offender management 

The third barrier emerged through the implementation of offender management, which was defined at both a macro and micro level. It was used at a system level to refer to the network of structures and processes by which the population of offenders would be managed through custody and into the community. To support this network, the then Government introduced regional commissioning of provision from a mixed market of providers. Regional Offender Managers were appointed with responsibility for this commissioning activity and for the reduction of reoffending in their regions. Multi-agency partnerships were developed to harness the capacity of other government departments, agencies, and local authorities to influence the factors which affect offending. 

In addition, offender management was the label applied to the approach used in managing individual offenders. A single offender manager from the probation service would be appointed when the offender was sentenced and would be responsible for the offender until the sentence was completed. The key principle of the approach was continuity of case management through the sentence. This offender manager, located in the offender’s home area, would assess risk of harm and produce a sentence plan. If the offender was in custody, an offender supervisor would be appointed in the prison to act as a link between prison staff and the offender manager in the community. 

This model failed at both levels. At the system level, regional commissioners did not have sufficient traction over existing public sector providers – the prison and probation services – to deliver substantive change, most noticeably through NOMS failing to wrest operational budgets from providers to commissioners, save at the margin. The Government’s intention had been to make Regional Offender Managers responsible for integrating service delivery across custody and community and to give them the authority and budgets necessary to commission services from public, private and voluntary providers. In reality, Regional Offender Managers, and the Directors of Offender Management which they later became, never had the infrastructure, authority, or budget to secure what were radical changes to the status quo. In reality, therefore, Regional Offender Managers became an additional layer of management attempting to integrate services, but without the freedom to move money between prisons and probation or to commission new services from alternative providers. In 2010, five years after the new arrangements had been implemented, there had been no movement of funding from prisons to probation.

At the case management level, the NOMS Offender Management Model was complex, theoretically heavy and detached from the day-to-day reality of the role of probation officers in the community. The 82-page manual was developed by headquarter staff, rather than being developed in detail by frontline practitioners reflecting live operational experience. In practical terms, it ignored the obvious difficulties in giving probation officers responsibility for offenders who may be in prison for long periods of time, and potentially many miles away from their home probation areas. As a result, the principles and their practical delivery became diluted to such a degree as to make their impact negligible. As HM Inspectorate of Prisons (HMIP) sadly described: 

We have come to the reluctant conclusion that the Offender Management Model, however laudable its aspirations, is not working in prisons. The majority of prison staff do not understand it and the community based offender managers, who largely do, have neither the involvement in the process nor the internal knowledge of the institutions, to make it work. It is more complex than many prisoners need and more costly to run than most prisons can afford.

More recently, NOMS has shifted further from the original offender management model and implemented a ‘handover’ model, with responsibility for offender management in custody sitting with the prison, transferring to a community-based case manager on release. This, however, is a failure to operationally deliver a workable solution, not a counterargument to the evidence base for consistent end-to-end case management, which remains compelling. 

1.2.1.4 A National Offender Management Service 

The fourth barrier was the design and priorities of NOMS itself. As a national service, it naturally focuses on delivering against pressing, national priorities – and given the domination of the prison budget, specifically prison priorities. The challenge of ensuring adequate prison capacity has already been discussed. Added to this, NOMS has focused on four national objectives:

• Achieving procurement efficiencies through offering contracts which deliver economies of scale via national purchasing (for example, prisoner escorts and electronic monitoring). 
• Maintaining national industrial relations with unions and workforces through national pay structures. For probation, for example, all pay negotiations have been undertaken nationally through a joint negotiating structure representing all probation trusts. For prisons, the national Prison Service Pay Review Body makes recommendations which are then subject to national negotiation between NOMS and the relevant trade unions. 
• Delivering national systems of control over local delivery to be able to deliver reassurance to ministers and senior officials. For example, the detailed audit of prison systems and processes against the requirements of the many Prison Service Orders and Instructions. 
• Establishing a National Probation Service (NPS) to consistently manage the riskiest offenders in the community. 

In delivering against these priorities, NOMS has been effective. This centralised agenda is, however, clearly at odds with an effective end-to-end offender management model which requires local integration of services. More specifically, it runs contrary to the current Government’s stated aim of public services freed from central control via professional autonomy.