MoJ Give Evidence

Last Wednesday the House of Commons Justice Committee had the opportunity of grilling the new man at the MoJ, along with Jim Barton, Sonia Crozier and Amy Rees. As on previous occasions, although somewhat lengthy, it's important that what was said is examined in some detail, but in several chunks:-   

Q375 Chair: Minister, thank you very much for coming and bringing your officials. You are well known to us. All of us have met your officials in the past, but perhaps they could introduce themselves for the record. 

Jim Barton: I am Jim Barton, the director responsible for delivering the probation reform programme. 

Sonia Crozier: I am Sonia Crozier. I am chief probation officer of the National Probation Service. I also have responsibility within HMPPS for women.

Amy Rees: I am Amy Rees. I am the interim director general for probation and Wales. 

Q376 Chair: Let me kick off. There have been some important announcements about the future of probation, welcome ones as far as this Committee is concerned. What changed the Government’s mind from last October? 

Robert Buckland: First, can I pay tribute to the work of the Committee, which has taken a long and informed interest in this? I am grateful to all members for having considered the matter and helped inform the process. 

I am fairly new in post, but, as you know, Mr Neill, I have had a long involvement with the system and have worked with probation officers for the better part of 30 years, so I know their worth and value. I think we acknowledge that, although there has been important change brought about by transforming rehabilitation, we needed to make further changes. There had been a process during the TR regime from 2014 onward where we had made adjustments. Most notably, the decision to end the CRC contracts earlier than planned was a major adjustment, but we based our decisions on the evidence and the information, and as a Department we are not frightened to acknowledge when change is necessary. 

This was one of the key moments when both the Secretary of State and I felt very strongly that we needed to streamline responsibility for provision in the area to make it clearer and more straightforward, in particular to understand the important role of the National Probation Service. These reforms will give the NPS a stronger and clearer role in managing all offenders. We believe that the system we are going to develop will enhance and encourage voluntary sector involvement in rehabilitation to a greater level than we have seen previously. 

I have described the scenario as a mixed economy. I believe that very fundamentally. It is important that we retain the voluntary sector, and indeed the private sector, in helping us to make that provision, but the overarching framework within the NPS and the creation of 11 regions will underline the importance of allowing each part of the sector to play to its strengths and deliver more investment in further enhancing the role of our probation staff. That aspect of our proposed reforms has perhaps been somewhat overlooked. 

For me, it is absolutely vital not only that we increase the number of probation staff, which is happening, but that they feel valued and understood by wider society as a vital part of the system, whose judgments are to be relied upon by sentencers and whose assessments within the community are an important part of offender management and rehabilitation. As part of that process, your Committee played its role, but the observations of the former chief inspector of probation, Dame Glenys Stacey, also played a very important part in influencing the thinking that has brought us to this position. 

Q377 Chair: It is Keynesian; the facts or evidence have changed, and you have changed your view. 

Robert Buckland: To condemn TR out of hand and say that it was a failure is unfair to many aspects of it: for example, the increase in the overall number of people supervised; some of the really good projects that we saw in the south-east relating to stalking; and the work done on unpaid work requirements. I do not think it would be fair to write off the past four or five years as a blind alley, because it certainly was not. A lot of what we have learned from that will be taken forward in the new model, but the end of the division between serious offences and less serious offences will help us, most notably not just with overall accountability but with the workload of probation officers. Perhaps we can explore that as we go into questions. 

Q378 Chair: You have come into post recently. Have you had the chance to meet many frontline probation staff since you have been there? Perhaps you would tell us what you have found in terms of their response. 

Robert Buckland: In the few weeks that I have been in office I have already visited a probation centre in Greater Manchester, together with senior probation staff, but, most importantly, to meet probation officers working with offenders on the ground in an innovative way. In the particular probation office I visited they were managing quite hard-to-reach offenders with a particularly innovative programme that involved therapeutic and support services to understand the underlying reasons for offending. For me, it is reacquaintance with a profession I have worked with and been impressed by over nearly 30 years. 

Q379 Chair: I understand and agree with what you are saying. I think we would all endorse what you say about probation staff. 

One of the things that troubled us was what seemed to be a diminution of confidence on the part of the judiciary and sentencers in the way they could rely on the follow-up to sentences. Can you talk to us specifically about how that is going to be addressed in the new system? The decision was that the people who wrote the reports were NPS staff, but in the past the follow-up was done by CRCs. How is the confidence of magistrates and judges going to be addressed? Bring in your officials by all means. 

Robert Buckland: Absolutely, but can I lead off on that basis? I come to this job in the sense that I will take the position of the sentencer. Having done it myself and sat in the judge’s chair and looked at the options when sentencing, I understand that the confidence sentencers need in their options is absolutely vital. We are already seeing some important examples of work being done to improve the options that have existed for a very long time in statute but which, in reality, have proved somewhat different. 

Let’s take mental health treatment requirements as part of a community order. A number of pilots are now being undertaken in Milton Keynes, Northampton and a few other centres—I think London is piloting two. We have not yet seen the outcome evaluation or the process evaluation, although we will, by the way, have some idea shortly from the Department of Health as to the process evaluation, but we are already seeing a tailored approach to individual need. I accept that that can be a challenge and there is always a resource issue with these options, but it is my aim to try to make sure that sentencers have a proper choice, that the words on the page in the 2003 Act become more and more of a reality, and that by improving that choice prison is not the only staple in the diet of sentencing, if I can use that phrase. That is well understood. I am happy for officials to come in to develop those points. 

Q380 Chair: I understand that and agree with it, but I am interested in the nuts and bolts of how we give the sentencer reassurance that there will be a better follow-through than appears to have been the case in the past. Who would like to deal with that? 

Amy Rees: To add to what the Minister said, in July we launched our probation consultation document called “Building Confidence”. As part of that, we trialled the new model in Wales, which looks very similar to the model we are now going for in England and Wales, so we were able to gather quite a lot of detailed feedback about what people thought about that model, including the judiciary, and they were very supportive of what we were planning to do in Wales. 

It comes down to some quite simple things. There will be one person responsible for probation in a region. If you have issues that you want to follow through, you will be able to go directly to one person. The system will have an owner in a region that gives a point of interface with the judiciary that we think has been missing over the last four or five years. 

Q381 Chair: A resident judge at Chelmsford, Maidstone or somewhere has a specific person they can go to. Is that what it comes down to? 

Amy Rees: And who manages the whole system. 

Q382 Chair: That can be followed through, and the recorder, Mr Buckland or I, is in the same position to do that. 

Robert Buckland: Indeed. I think the relationship between the judiciary and the probation service is absolutely vital. The judiciary need to have confidence that the authors of pre-sentence reports are people who have the experience, authority and understanding to reach judgments that can be relied on. I am not a nostalgist, Mr Neill, but we are looking at building those relationships in a stronger way. With technology, there are many other ways in which it can now be done just as effectively. The relationship—the liaison—is strengthened so that resident judges, circuit judges and recorders can have confidence. 

Q383 Chair: I understand that. Does anyone want to add anything to the details and specifics of that? 

Jim Barton: I acknowledge that the model we are now proposing to implement removes the disconnects you have referred to, Mr Neill, in terms of the person offering advice to sentencers not necessarily working for the organisation that is then responsible for those cases. Under the new model, that disconnect is simply removed. 

Q384 Chair: There will be a direct link between the author of the report and those who do the administration. Similarly, if for any reason there is a breach and people are brought back, do you think you can give better assurance under the new system that it will be joined up? 

Robert Buckland: Yes. 

Q385 Chair: That is helpful. How does it differ from the old probation trusts? The Secretary of State says it does not, and I can understand why to some extent. Eleven regions are a bit different. What would you say are the key differences? 

Amy Rees: There is obviously a size difference, which we have acknowledged, and that is important. Beyond that, there are some more important differences. As I just referred to, there will be a single director responsible for probation services in a region. That means both the directly delivered part and the commissioned part, but that responsibility is through a civil service relationship so the Minister will still be able to have a line of sight, not just on the direct delivery but on the commissioned services. 

Jim Barton: Perhaps another point of difference with probation trusts is the size of the market involvement. I know that the Committee has followed the history of probation very closely over many years since the creation of probation trusts in 2010. You will remember that there was always an intent that probation trusts should commission out potentially up to 20% of their services. From my anecdotal memory of that time, having worked for one of those trusts, I think only one or two got anywhere close to that level, despite a considerable push from Ministers through successive Governments to try to achieve it. What we are committing to under this model is that there will be an absolute requirement that the National Probation Service commissions the provision of interventions from market providers, whether they be private or voluntary sector organisations. 

Sonia Crozier: The other obvious difference is that we have become a national probation service in areas where it is important to have a greater degree of consistency. We have pursued that very hard and have taken out some of the differences that we inherited from 35 trusts—for example, in the use of our approved premises and the targeting of that. The benefits of being a national service will be taken forward into the new regions but will be combined with the kind of flexibility at local level around commissioning and engagement with the voluntary sector that Jim Barton has just described. It is about taking the best of what works nationally but combining that with new opportunities to have a greater focus on local engagement. 

Q386 Chair: One of the criticisms of the previous regime was that, whatever the intention, in practice some voluntary groups were involved, maybe not as many as had been hoped, but that one thing the old trusts had was a fairly direct link into the local community through representation and membership of the trusts. That seems to have been very much lost. 

Given that a lot of the folk who will be dealt with by probation will have housing and social services issues, potentially education issues and health issues, how will you get a meaningful say at local level as well as national level rather than everything being referred up the line to the Minister, as I found when I was in a health authority, and becoming very centralised? How are you going to avoid that? 

Robert Buckland: We are already having active dialogue with police and crime commissioners. There was dialogue prior to the announcement, as you would expect and hope, and that has carried on. I met a representative sample of PCCs only last week to discuss ways we can jointly commission local services. 

It seems to me that the “and crime” element of the PCC model is one that comes into play when we are dealing with prevention and rehabilitation. Therefore, it is an entirely logical step to use that network as an important framework, below regional level, to identify some excellent examples of local provision so that we can, as you say, have a direct link with the small charity that might be working with veterans in Wiltshire, for example, or an organisation that might be working with a particular cohort of vulnerable offenders in another part of the country. There will be a direct link in terms of how the relationship with the NPS is maintained. As Sonia says, the local being blended with the national is where the balance needs to be struck. 

Q387 Chair: It is local knowledge, isn’t it? Some of the key decision makers being involved is critical. What are the practical means by which you can achieve that, Ms Crozier? 

Sonia Crozier: As we take forward future design, we want enough well-informed local managers who are working to a common set of principles engaging with local partners. That is different from the position we have been in previously where you might have managers from the NPS and the CRC combining two voices locally, which can be confusing, or perhaps there are no voices because one thinks the other is doing something. We will have a unified approach, with leadership flowing down and sufficient local managers on the frontline doing all the things you have just described, building relationships with local charities at a very local level in small towns across the country. 

Q388 Chair: You signed MOUs with both the Mayor of London and the Mayor of Greater Manchester in relation to elements of justice devolution. Many of us would say that some elements of probation work are pretty obvious examples of areas where you could devolve a lot of the delivery of these matters. How will that fit together under the new set-up? 

Amy Rees: We are in active dialogue with both of those Mayors and both regions. We already work quite closely with them. For example, in Greater Manchester we have had an intensive alternative to custody pilot running for some time, so it is building on a dialogue that already exists. We think the new model will be much better placed to allow us to work much more closely with those kinds of partners and others. Why? Because we are directly commissioning from a framework that will both allow much smaller organisations to be part of that framework and enable us to commission together with all sorts of organisations—PCCs, metro mayors or local authorities. 

Q389 David Hanson: I will take you back to the National Audit Office, if I may. In its report in March this year, it said that the part-privatisation of probation services had been extremely costly to the taxpayer. What is your current estimate of the cost? 

Robert Buckland: Where we are with the overall cost is that the net figure, in fact, is somewhat more encouraging when one takes into account the fact that we will have ended the contracts early. 

Q390 David Hanson: What is it? 

Robert Buckland: The projected spend? The overall non-spend on the contracts is £1.4 billion. The net figure is £800 million in terms of money actually not spent, so there is still an overall excess, if you like, rather than a deficit. 

Q391 David Hanson: There is a figure of £171 million in the National Audit Office report as the cost to the taxpayer. How do you account for that? What is that for? 

Robert Buckland: That figure is included very much in the net figure. I can break that down. That £171 million consists of £113 million that the Department agreed with 20 of the 21 CRCs with regard to changing the baseline. You will remember that there was a frequency of reoffending baseline assessed as at 2011. What happened was that that was not reflected by the reality of the number of cases being dealt with by CRCs, and it was remodelled to a figure based on the 2015-16 year. 

Q392 David Hanson: There was £467 million put in 18 months to two years ago. Where has that gone? 

Robert Buckland: I am just trying to explain, if you will bear with me. A figure of £1.8 million was allocated to the Merseyside CRC. There was a particular issue there because they had overseen quite a significant improvement in the frequency of reoffending in their area and were making some progress. There was a request made by the parent company for the original baseline to be maintained because they were performing. 

A figure of £30.2 million was agreed by the Ministry with regard to some technical variations with providers, which related to the source of the data used to calculate the volume of casework by CRCs, and £43 million was agreed with CRCs to deliver an enhanced through-the-gate specification right through to the end of 2020. There was £213 million that was a marginal adjustment factor change; in other words, that was the change to the contracts made back in 2017. That payment was made to rectify the original assumptions that we know have been looked at carefully by the PAC and which I know you understand. 

There was an £82.2 million additional fee for service payments made to CRCs in the financial years 2016-17 and 2017-18, but, as I have said, because of the underspend of £1.4 billion, you take that into account and, although that money has been significant, the overall net sum that we are not spending—it is a bit inelegant—or the net money we have avoided spending because we ended the contracts earlier is £800 million. 

Q393 David Hanson: But by ending the contracts early you are still going to spend that money in some form or other in the next couple of years, but not with the current CRCs. 

Robert Buckland: Yes, but it is an important point— 

Q394 David Hanson: As a taxpayer, Minister, what I am interested in is that the National Audit Office has said that the cost to the taxpayer is £171 million. I want to hear from you whether you agree with the National Audit Office or whether you can publish figures that show a different form of defence. I would appreciate that.

Robert Buckland: With respect, I have gone through the figures with you because you deserve particularity. I know you would insist on nothing less as a former Minister for Prisons yourself. 

What I am saying is that the projected overall spend on the contracts was going to be £3.7 billion. By ending them, we spend only £2.3 billion. You then add on the £470 million I have talked about. I am not giving you a conservative estimate. There are other rounding figures that mean an overall £800 million underspend. 

Q395 David Hanson: Has it been a good deal for the taxpayer, Minister? 

Robert Buckland: I have acknowledged that there have been problems with TR. That is why we are making these reforms. I am sitting here telling you frankly that we think we can do better, of course; but it would be wrong to say that overall, looking back on this period, we will have ended up spending more than the projected £3.7 billion. In fact, we will be spending £800 million less than that, which I think is an important overall framework in understanding where we are financially. 

Q396 David Hanson: How much additional money have you put into the current CRCs for 2018-19? 

Robert Buckland: I do not know whether Jim has any more granularity on that. 

Jim Barton: You will appreciate that this is a reasonably confused figure, because, within the £467 million total, some payments, essentially, are backward looking because they correct assumptions in the original payment mechanism; some of them reflect adjustments to the ongoing monthly payments that we make—the changes to the fee for service mechanism that we made in 2017—and some of them are straightforward top-up payments to buy new services. 

On the specific question about 2018-19, the changes we have made previously that will impact this year are the £22 million additional spend on a significantly enhanced through-the-gate service. That service is now live in all bar four resettlement prisons, with 500 additional staff in post delivering improved support for offenders pre-release. The changes that we made to the frequency baseline that the Minister referenced previously mean that as a result most CRCs would, if we had not made those changes, have been paying us because of underperformance on the frequency measure. Most CRCs are now in a position where their frequency payments hover around a zero figure. 

As the Minister pointed out, we believe that the change in the frequency baseline was, with the benefit of hindsight, absolutely the right thing to do, because the deterioration in performance between 2011 and 2015 happened before the CRCs existed or were under private ownership. If we had our time again, we probably would not have signed a contract that linked frequency payments to a baseline in 2011 that we and providers did. Last year, we made the choice that to enforce that element of the contract would have meant that contracts would have been underfunded. The consequence of that is a poorer probation service. That is not in our interest. 

Q397 David Hanson: What is the plan for payments for 2019-20 until the contracts expire? 

Jim Barton: We will apply current contractual terms, so it will depend on the volume of work that CRCs do and their performance under the PBR mechanism. 

Q398 David Hanson: What is your rough estimate of the net cost to the Department of that contract for 2019-20? 

Jim Barton: That is included in the figures you cite. When the NAO rightly says that the cost of those contract changes is £467 million, that extends from the date we made the changes to the end of the contract. For example, through-the-gate is £22 million a year, and £43 million in total between the point when we made that change and the end of the contracts. 

Q399 David Hanson: In a previous session with Richard Heaton, we asked for a breakdown of the costs for each CRC, and the net plus or minus figure for each CRC. I have a letter from Richard Heaton dated 8 April in which he says: “You also asked for a breakdown of costs for the financial year… We are still finalising our year end position, so are not yet in a position to provide this data. We will provide you with an update as soon as we are able.” Do you know when that will be? 

Robert Buckland: I will take that away and make sure that the Committee is furnished with that information as soon as possible. 

Q400 David Hanson: This is the final question from me on financing. In May this year, the permanent secretary, Richard Heaton, required a ministerial direction to process payments to CRC subcontractors because he could not reconcile those payments with his duty as accounting officer. Why could he not reconcile those payments? Why did the Minister overrule the decision of the accounting officer? 

Robert Buckland: I do not have the information before me with regard to that particular decision. I accept that the procedure is not one that is commonly used. 

Q401 David Hanson: It has not been used generally in the last 10 years. 

Robert Buckland: I accept that, Mr Hanson. It is a matter on which I will want to furnish the Committee with full information. I do not have it to hand. 

David Hanson: I am grateful for that, Minister. Could we have an explanation as to the reasons why the accounting officer’s decision to rule out payments to subcontractors was made by the Minister, unless anybody at official level can help?

Q402 Chair: It will be helpful to have that. 

Mr Barton, you talked about proceeding on current contractual arrangements until they terminate. Is there a risk of any further payments being necessary? You are working on the current volumes and assumptions until the end of the contract. Those assumptions of workload proved erroneous and unreliable in the past. Is there still a risk that we may need further bail-outs for some of those firms? 

Amy Rees: As Jim outlined quite clearly, the contracts will operate in the way we have now set out. The package to which we have been referring in terms of the £467 million was one that we designed in order to take us to the end of the revised contract period. We believe, from the best knowledge we have, that that will be enough to stabilise as we go forward. Having said that, in the way we have just described, the contracts are built on changing metrics. Did they reduce reoffending? Is that binary or is it among the reoffending group? What happens to fee for use? What happens to the rate card? Lots of elements can change over the next two years, so it is impossible to say it will be exactly as this, but in good faith we negotiated those contract changes in the belief that they would take us to the end of the contract period, and that would be sufficient to stabilise the system. 

Q403 Chair: I think the Committee is rather in favour of the change you made. There remains a risk, but your view is that it is a manageable one. 

Amy Rees: There are lots of changing numbers, and multiple parts and frequencies, which mean that it is difficult to say, when you take all of that, that there is no risk at all, but we believe we have taken steps to eliminate the risk as far as we can. 

Q404 David Hanson: Can I get a commitment from the Minister, helpfully, for the Committee? When the period with the current CRCs has been finalised and completed, will you agree to publish a cost analysis of the final package for the costs of CRCs and the changes from 2011 to 2020? 

Robert Buckland: What we can do is provide as much information, with as much granularity as possible, for the Committee, so that we understand the whole period. What that will look like precisely I cannot tell you now, as Amy has said, but in terms of learning we have had to deal with a number of issues—for example, Working Links and what has happened in Wales as well. We have the learning and experience of the model now to deal with any contingency issues that might arise between now and the end of 2020. 

Let’s not forget that the issue was the profile of offences and the unforeseen outcome that was the increase in serious offences that had to be dealt with by the NPS. The workload of the NPS increased in a way that perhaps had not been foreseen, which meant that there were fewer of the less serious offences that would have been dealt with by the CRCs. 

Understanding that fundamental reality can perhaps inform as fully as possible not just members of the Committee but the wider public about the scale of the challenge that CRCs faced.

Jim Barton: On the question about further contractual changes, you will have noticed in previous evidence that we had planned to end current contracts on 4 December 2020, but in our announcements on the future direction of travel we are referencing transition happening in spring 2021. We think we need to take the time to manage transition well. That is a hard lesson learned from transforming rehabilitation. To provide us with the small number of additional months needed to do that, we have an option to extend CRC contracts into the first half of 2021. We have recently published, through the Official Journal of the European Union, notice that we have that option and that we intend to make that contract change. That would be on amended contractual terms. 

Q405 Chair: I understand that. Perhaps hard-wiring anything by an absolute fixed date is never wise. 

Robert Buckland: That’s right, Mr Neill. As Jim said, the pace of change is different from the period prior to the introduction of TR in 2014. We will be developing our business case by late summer and looking to move on to the next stage, the competition stage, in the autumn. You are looking at a clear set of milestones within which there will be a lot of work that I will be keeping a very close eye on, because I get the point that we have to get the commissioning right. You will be bearing down upon me very hard if we do not, so it is very well understood. 

Chair: That is fair enough.

(To be continued)