The MoJ Responds

I notice that the MoJ have responded to the issues raised by the Justice Committee and although somewhat lengthy, it's probably necessary to try and digest it by means of several chunks, this being the first:-   

Transforming Rehabilitation: Government Response to the Committee’s Ninth Report of Session 2017–19

Introduction 

The Government welcomes the report of the Justice Committee on Transforming Rehabilitation. The following document provides a response to each of the Committee’s recommendations which takes account of developments since the publication of the report in June 2018. In particular, responses to individual recommendations should be seen in the context of the planned reforms set out in the Government’s response to the public consultation Strengthening Probation, Building Confidence. 

The importance of the Justice Committee’s report is reflected in the Government’s decision to end contracts for Community Rehabilitation Companies early, in the publication of the public consultation on the future of probation, and in the nature of the strategic changes being brought forward. These changes are intended to directly address the structural challenges identified by the Justice Committee and reiterated in feedback from the public consultation, subsequent reports from other key stakeholders such as HM Inspectorate of Probation, and by our own internal analysis of lessons learned from Transforming Rehabilitation. 

Structural Issues 

We recommend that any significant changes made by the Ministry of Justice to CRC contracts, including those currently underway, should be publicly disclosed. This disclosure should include information on any significant changes to the payment model and funding for CRCs, as well as information on what the Ministry expects to receive in return for the changes. (Paragraph 42). 

Notice of significant changes made by the Ministry of Justice to CRC contracts have been published in the Official Journal of the European Union (OJEU). Regarding recently agreed changes, notice of confirmation that contract changes have been agreed was published on 8th February 2019. In the event that the Department makes any future substantial changes to the CRC contracts it will comply with any applicable transparency requirements in accordance with the Public Contracts Regulations 2015 including, for example, publication of Modification Notices in the Official Journal of the European Union. 

The Ministry of Justice should move away from a “sticking-plaster” approach of rolling contract negotiations following the current round of renegotiations. If contracts are to be terminated the Ministry of Justice needs to ensure that transition plans are put in place which make sure that: offenders receive the support they require to be rehabilitated and their risk of reoffending does not increase.

The Ministry should undertake a public consultation on any further changes to ensure a wider range of views on contractual arrangements. This public consultation should consider the number of CRCs and the bodies eligible to bid for CRC contracts (Paragraph 46). 

We have taken action to terminate existing contracts early and put in place new arrangements for delivery of probation services. We also made changes to secure operational stability over the remaining, shortened, period of existing CRC contracts, including investing an additional £22 million a year in Through the Gate support for offenders when they leave prison. 

Between 27 July and 21 September 2018, we conducted a public consultation, Strengthening probation, building confidence. This sought the views of stakeholders and the wider public on a range of proposals for the future of probation. We have taken consultation responses into account as we have developed our new plans and set out the action we intend to take and our strategic approach to the future arrangements for delivery of probation services in our response on 16 May. 

We are developing a transition strategy to ensure a smooth handover from incumbent providers to new providers, and effectively manage the integration of offender management responsibilities into the National Probation Service. This will include a variety of measures to protect operational continuity of services and minimise uncertainty for staff and offenders, informed by our ongoing engagement with Trade Unions and other partners. We will also ensure we learn lessons from the integration of offender management delivery in Wales, which we plan to deliver by the end of 2019. 

The Ministry of Justice should continue to closely monitor the financial position of all CRCs to ensure that no CRC is suddenly unable to deliver probation services. It should ensure its contingency plans reflect the Principles set by the National Audit Office in its paper on “Managing Provider Failure”. (Paragraph 49). 

We accept this recommendation. As part of our full review of probation services, we have built a comprehensive picture of CRC finances. While the Department expects all CRCs to continue delivering services throughout the remaining life of the contracts, we have extensive contingency plans in place should any provider be unable to deliver their contractual requirements. We have a contingency steering group which regularly reviews the likelihood of provider failure, based on commercial, financial and operational intelligence. We have detailed contingency plans in place for all contracts, which align with the National Audit Office principles. The plans have been developed, reviewed and tested with input from relevant functions within the Ministry of Justice and HMPPS, relevant specialists across government, key officials involved in the implementation of contingency responses in other government areas and external advisors. The plans are subject to regular review. 

The Department’s response to the Administration in February 2019 of CRCs operated by Working Links demonstrates the strength of our contingency planning. The Department arranged for and oversaw a successful transfer of affected services in the South West and Wales to Kent, Surrey and Sussex CRC (operated by SeeTec). Probation services remained fully operational throughout this period.

The Ministry should conduct a review after HMI Probation’s new inspection regime has been in place for a year to assess: the number of providers who are rated ‘good’ or ‘outstanding’; the additional burden being placed on providers because of the increased frequency of inspection; and whether there were any elements of the inspection and audit regimes which could be consolidated. (Paragraph 55) 

We do not accept this recommendation. A Memorandum of Understanding (MoU) on inspections has been agreed between the Ministry of Justice, HM Prison and Probation Service and HMIP. The MoU is regularly reviewed and will be fully updated in due course to reflect the implications of future probation arrangements for the oversight of probation. 

The MoU sets out how HMIP will target its recommendations following inspections and how the Ministry will respond to HMIP’s recommendations (and the implications for differing perspectives between contractual standards/SLAs and HMIP inspection standards). 

It also sets out an agreed approach to oversight of the probation system following the introduction of the inspectorate’s new inspection methodology from April 2018. HMIP is in the process of consulting on lessons learned from the first year’s application of its new inspection methodology. 

Given the different roles and remits of inspection and audit there are limits on the extent to which these functions can be consolidated. To avoid placing an excessive burden on individual providers, the MoU confirms that HMIP and the Operational Assurance team in HMPPS will share timetables of inspection and audit visits and liaise on any issues arising from the timetabling. 

The role of HMIP in providing an independent oversight of the quality of probation services will continue under future arrangements and HMI Probation will continue to independently set and review their inspection standards. MoJ and HMPPS will work closely with the inspectorate so that HMIP can consider the best approach to its future inspection regime taking account of the proposed changes to structures. 

The Ministry of Justice should review contract performance measures so that they focus on outcomes, especially on housing, employment and drug rehabilitation, rather than inputs or outputs. This review should be completed by 1 February 2019 (four years after probation services were fully divided between the NPS and CRCs). (Paragraph 62) 

Given their shortened duration the Government does not intend to review or make significant changes to existing CRC contract performance measures. As part of the programme of work underway to implement the changes set out in the Government’s response to the consultation Strengthening Probation, Building Confidence, we are developing key performance outcomes and measures to hold the National Probation Service and future contracted providers to account on their respective responsibilities. It remains our intention, as set out in the consultation response, that the future performance framework will take an outcome-focused approach to measuring quality of service delivery. It will be the responsibility of the NPS to ensure offenders receive the right interventions to improve outcomes such as accommodation, employment and health, and ultimately reduce re-offending. We will ensure the contract performance measures drive providers to focus on the quality of the services they deliver, in order to support changed lives and reduced reoffending. We will set out more detail in due course. 

In response to this Report the Ministry should set out whether the 2011 baseline for reoffending is the correct measure against which CRC performance should be assessed. If the Ministry believes that the 2011 baseline remains the correct measure it should set out its reasons why. (Paragraph 66) 

We set out in the consultation that, to provide a better reflection of CRC performance on frequency of reoffending, and to support providers in maintaining effective probation services, we would offer to amend contracts to measure CRCs against a 2015/16 baseline, rather than a baseline set in 2011. We have agreed to vary contracts with 20 of 21 CRCs. Merseyside CRC, which is owned by Purple Futures, chose to retain the 2011 baseline. 

By January 2019, when the next annual cohort data is released on final binary and frequency reoffending performance, the Ministry should ensure that CRCs receive full data relating to which of their offenders reoffended. (Paragraph 71) 

The Ministry of Justice does not have control access to the Police National Computer data, on which reoffending performance is based, and is unable to give access to the data to CRCs. This was explained during the bidding phase for CRC contracts, and some CRCs have made arrangements to access the data themselves at cost. To enable CRCs to assess progress against their targets, the Ministry of Justice published interim figures during the period in which full ‘one year’ reoffending results were not available. We continue to provide these interim figures to all CRCs. 

In response to this Report the Government should set out what other steps it is taking to address underperformance of CRCs, including in cases where service credits are not applied. (Paragraph 74) 

We have acknowledged that CRCs need to do more to improve performance in some areas. As part of negotiations on current contracts, we have introduced changes to improve performance over the now shortened remaining term of the contracts, including implementation of a new requirement to offer a minimum of monthly face-to-face contact with offenders and an enhanced specification for Through the Gate services. 

Our contract management teams continue to robustly monitor CRC contracts. Assurance includes a combination of tracking compliance against contractual obligations and assessment of the quality of service delivery. Contract Management teams have identified a series of ‘risk based’ areas – key areas of service delivery where the greatest attention is required. There are strict monthly reporting processes, including the provision of detailed management information, to facilitate robust oversight of these areas. 

Where CRC service level performance is below a prescribed level, Contract Management teams implement improvement plans to address service delivery against a specific performance metric. As of February 2019, there were 26 specific improvement plans in place across 12 of the CRCs and covering 7 service metrics.

CRCs are also required to implement action plans to address HM Inspectorate of Probation and Operational and System Assurance Group findings and recommendations. Contract Management teams agree these plans with CRCs before implementation and hold CRCs to account against the recommendations using monthly governance arrangements. 

Our starting presumption is that service credits are applied if accrued by CRCs for underperformance. On those occasions where it has been considered appropriate not to apply the service credits we have instead sought to agree a reinvestment of the value of the service credit back into the delivery of services. 

Should the Government decide that probation services should continue to be delivered as per the Transforming Rehabilitation reforms, we recommend that the Government should ask HM Inspectorate of Probation to conduct a review of how best offenders should be distributed between the NPS and CRCs, and to investigate the impact of changing offender risk and how the NPS and CRCs manage this matter. (Paragraph 76). 

As set out in the Government’s response to the probation consultation, the split in responsibility for offender management on the basis of risk will not be retained under future probation arrangements. In future the National Probation Service will have responsibility for managing all offenders on a community order or on licence following release from prison. This clearer set of responsibilities will reduce duplication of roles and improve clarity and accountability whilst ensuring that we make the best use of wider private and voluntary sector provision. 

There are clear benefits for risk escalation procedures to having a single organisation responsible for managing offenders. This will allow us to better respond to changes in caseloads – for example, increases or decreases to the proportion of high or medium-low risk offenders – as well as improving continuity of supervision and removing inefficiencies as cases will no longer be required to be passed between the NPS and CRC as assessment of risk changes. 

The Ministry of Justice should assess whether it remains appropriate to encourage the NPS to use CRC Rate Card services, or whether the NPS should be liberalised to develop its own supply chain as a matter of course (Paragraph 87). 

Transforming Rehabilitation showed that real partnership working between public and private sectors can drive innovation. We recognise however that some CRCs have struggled to invest in the development of their supply chains and have often relied on developing and delivering Rate Card services themselves. This has affected the range of services they have been able to make available through the Rate Card and there has been much lower than expected use of rate card services by the NPS. 

Under plans for future probation arrangements, we are committed to harnessing the expertise and innovation of the voluntary and private sectors through the delivery of interventions – such as Unpaid Work, Accredited Programmes and wider resettlement and rehabilitative interventions, with the clear expectation that the NPS will source these services from the market. Each NPS region will have a private or voluntary sector partner responsible for direct provision of Unpaid Work and Accredited Programmes, and supporting the NPS to identify and deliver wider innovation.

We intend to create a separate dynamic commercial framework across England and Wales for the NPS to directly procure rehabilitation and resettlement services under future probation arrangements. This is central to our plans to streamline the system and develop a greater role for smaller providers, including voluntary sector providers in future probation arrangements. Our market analysis has shown this approach, which will allow for more direct and flexible local and regional approaches to commissioning services, would be welcomed by the voluntary sector. 

The dynamic framework will operate as an open panel of suppliers, who can be admitted to the panel at any point during its lifetime subject to a qualification process (based on experience and capabilities). Eligible panel members will be invited to participate in mini-competitions for the services required. Contracts will be designed flexibly, so that innovative approaches that show results can be quickly identified and spread across the wider system. 

We recommend that in response to this Report the Ministry of Justice should set out its vision for future local accountability of probation and the role that Police and Crime Commissioners might play. (Paragraph 90) 

We have engaged PCCs on how they could more effectively support probation services in the future and how probation can better work with them to engage with the local criminal justice system. We want NPS Regional Directors to be working with PCCs to identify shared strategic priorities, with an expectation that they would seek opportunities to co-commission services that reduce reoffending. To enable this, we are considering how probation performance and needs data can be meaningfully shared at a local level. Where appropriate, PCCs will also be represented during the recruitment process for the Regional Director posts. We will continue to engage with PCCs to ensure probation can take advantage of their developing role in local criminal justice systems.

(To be continued)