We Told You So 2

Regrettably, despite the mountain of evidence confirming TR has been an unmitigated disaster, the MoJ is still intent on awarding new contracts for TR2 and the privateers are at this moment working up their bids. It's a long read, but this from the British Journal of Community Justice is as relevant today as it was on publication in December 2013:-

EDITORIAL 
PROBATION: PEERING THROUGH THE UNCERTAINTY

Paul Senior, Hallam Centre for Community Justice, Sheffield Hallam University 

"Uncertainty is the worst of all evils until the moment when reality makes us regret uncertainty" (Karr)

During the five hour, often high-quality, debate in Parliament on 12th November it was hard to see disagreement on the key features of Transforming Rehabilitation (TR) - reducing re-offending, supervision and support for under 12 month offenders, peer mentoring, specific services to women, prisoners resettled in prisons near to their homes, involvement of the private and voluntary sector, and the potential for innovative solutions to the problems of crime in communities. Most of the prescriptions for change, probation commentators and the Trusts themselves would support - and have in the past endorsed - and they are backed by persuasive and rich research evidence, some of which is presented in this timely double issue of the journal. However, nearly all the specific mechanisms and organisational arrangements proposed by government in its TR proposals, are not backed by evidence and moreover fly in the face of that evidence. The cacophony of noise now being heard across the country surely cannot be ignored. A pause, a rethink, even an abandonment of the current TR competition must be put in place to avoid a potential disaster, given the threat to public safety predicted by the rushed application of the current plans. To dismantle a century-old, high performing, probation service is policy-based evidence not evidence-based policy. 

There appear to be three ostensible motivators to change: reducing re-offending, saving money and process innovation. But clearly, given the climate of austerity and the public sector cuts elsewhere, this is most obviously about saving money amidst a rush to marketise public services treating offenders as commodities. The other two goals are relatively uncontroversial and are already provided by current service delivery. This is something that we must pause and reflect upon. The threats attendant on these changes are well documented - fragmentation, loss of expertise, conflicts of interest, inconsistent practices and the danger to public safety that would result from confusion on risk categorisation. Many of the gains of the last decade will all be negated by this rush to change. Clearly forgotten in this unseemly rush to change was the golden thread inherent in the 2007 Offender Management Act which was the public sector management of all offenders. The attempt to use this legislation for different purposes by the Coalition government should rightly be subject to public and political scrutiny as it alters the balance and unravels the historical continuity in the delivery of services for those in trouble with the law. 

The rush in itself flies in the face of a rational and planned approach to policy implementation and the management of organisational change. Historical evidence provides us with case studies demonstrating that speed of change can undermine and derail even well-meaning implementation plans. Indeed we only have to go back to 2001 when the National Probation Service (NPS) was first created and the rushed introduction of accredited programmes contributed to some of the failures in delivery subsequently experienced. We know from the leaked, though still unreleased, risk assessment document that MoJ's own calculations suggest an 80% risk of an unacceptable drop in operational performance. In moving to wholesale new delivery patterns there is the high risk of throwing out the champagne with the cork. What will happen to practices developed carefully and painstakingly in partnership with other organisations such as integrated offender management, restorative justice initiatives, women's centres, desistance applications and the offender engagement programme to name just five potential areas at risk? The sheer organisational complexity and confusion that will result from the pace at which this is being implemented will jeopardize operational efficacy and put at risk the entire change project. It has been repeatedly questioned as to why this approach has not been trialled in the first instance. Not only could particular aspects of the changes have been trialled, such as Payment by Results, but also the organisational transformation could have been attempted in one area only to test its practicability as well as desirability. 

This wholesale organisational upheaval will spawn inexperienced organisations and individuals. This can of course stimulate innovative solutions but it also can lead to dangerous and costly mistakes which in a people business like probation puts communities and individuals at risk. The new partnerships created will be ones of convenience, not choice, driven by the commercial framework within which new relationships are being established. Of course many currently working in community justice will not become partners at all, as there is a real danger that smaller local VCS organisations will simply lose out. Recent commentary suggests that it will simply not be possible to transfer all cases into the new arrangements in a safe way by the deadline and some will be misplaced in either the CRC or the NPS and this will require a lot of juggling before correct allocations will be achieved. Chaotic clients do not deal with chaotic arrangements very easily. Even if we suspended disbelief about the efficacy of the TR changes is it realistic to go at this pace if we want to achieve successful implementation? Should change not be staggered in a reasoned, planned and considered way and a timetable for change be professionally driven, not politically motivated by the arbitrary timing of an election? 

The legitimacy of the current probation arrangements suggests fundamentally that there remains a strong argument for the retention of the institution of probation. There is no example worldwide of a probation organisation being shaped in the manner being suggested for England and Wales. Moreover the evidence is overwhelming that the probation trusts are highly successful by any number of markers: external kitemarks; significant reductions in re-offending and in the satisfaction of workers who work for the Trusts. The evidence base which supports practice capability with regard to rehabilitation has never been so extensive and convincing, some of which will be rehearsed in the papers in this volume. The probation trusts act as the social glue for local commissioning, avoiding an arbitrary patchwork of provision, reducing the risks of fragmentation, and loss of continuity of care all of which must ultimately heighten risk and threaten public safety. Trusts are accountable, integrated already with private and voluntary providers, are locally sensitive and connected and have comprehensive coverage and high reputations. Why abandon something which is not broken? 

The rump of the old probation service is being recreated in the second attempt to create a National Probation Service. Various estimates as to the size of this organisation have brought conflicting responses from the Ministry. In terms of caseloads it will be about 12% of the 300,000 clients under statutory supervision. But the role of the NPS will be limited to high level responsibilities. Its concerns will be the management of risk, public protection, compliance and enforcement issues, court reports and liaising over the supervision of high-risk offenders. Interventions however will be purchased from the contract providers. This will be a tiny organisation with little scope for progression. There will be a distinct lack of local presence with the NPS been divided into six huge areas with little co-terminosity to any other regional structures, including Wales. Significantly, probation staff will become civil servants and now, with the resignation of the originally appointed director of NPS, will be led by a non-practitioner, a career bureaucrat, working under the aegis of the National Offender Management Service (NOMS). The corporate silencing experienced by senior staff in the last few months will become the norm for workers in the NPS. This will paradoxically suit the style of management within NOMS. The command and control structures created by this prison-led organisation will transform the nature of the service delivery which will struggle to exert any substantive degree of professional independence. The new NPS does not create an infrastructure to resurrect public probation in the event of a disaster. There is no real sense that the NPS will offer leadership or innovation to the probation world. We have been here before in 2001 when the last attempt at a national service was an abysmal failure of leadership. The key skills developed will be those of allocation and brokerage - risk assess, write reports and manage high-risk clients - not intervention and engagement. Its supra-regional structure will make it remote from local decision making and the distribution of staff resources uncertain. This could well lead to staff having to move to work in areas a long way away from where they currently reside. 

There has been a constant querying of why the probation trusts were not allowed to mount competitive bids for the contract package areas. This would have aligned to the way in which the public sector prisons were allowed to bid for contracts for new or re shaped prisons. It has somewhat misleadingly been asserted by government that the development of Probation Mutuals is the avenue for public sector engagement with this competition. This runs the risk of turning the clock back to the 1930s and 1940s when there were many providers - mutuals, cooperatives and voluntary provision - but the system failed to provide a comprehensive universal service hence the original motivation to develop public services. Whilst there is some attraction in the notion of employee-led mutuals their ability to be in place and influence this competition is rather more fanciful. They are a weak alternative to Trusts being allowed to bid directly themselves, a sop to the lack of transparency and openness in the market. How feasible will it be for mutuals to set themselves up and be in a position, with sustainable financial backing, to ride the risks? Having a single customer raises questions about their future stability in the medium term. 

Given a level playing field and time to be organised effectively mutuals may have had a place in this new transformative world. However, as new emergent institutions they are extremely vulnerable, they have no track record of performance and they would need time to bed in effectively and influence the competition in any meaningful way. Clearly in a competitive environment mutuals could go bust with further risk to jobs and continuity of provision. Are they desirable to prime contractors either? Why would the primes wish to take on the risks associated with mutuals such as pensions, redundancy, servicing arrangements when the CRCs will be presented by government intervention in a way that takes care of those difficult issues? It is likely that a single mutual, in partnership, will become a prime to allow the government to show how open its competition has really been. But at present the only chance appears to be one where the mutual has a limited stake in the contract which it would share with a private contractor and a VCS as the Kent Probation Mutual and Delta Mutual in North Yorkshire appears at the time of writing to be currently negotiating. Without doubt there is a place for targeted small-scale mutuals delivering specialist services such as accredited programmes, training or dedicated interventions but the chances of influencing this competition more fundamentally, rather than merely creating the illusion that government has allowed the public sector to take part, seems unlikely. 

There is no doubt that the Community Rehabilitation Companies (CRCs) will be a difficult place for probation staff to find a home. Eventually to be run by private outsourcing companies with little sympathy or understanding of the traditions of probation it is unsurprising many probation staff are currently questioning whether they want to continue to work in this area at all. The loss to the vocation of probation of staff exiting completely is one of the most serious, avoidable but damaging outcomes of this change. However the best opportunity that probation staff have to maintain their professional role intact through the transfer process would be in the CRCs, not the NPS. In the CRCs the importance of the appointed leadership in transition cannot be underestimated. If the leaders can organise the delivery of services in the brief space they have before takeover and can act as a buffer against the new contractors this may help staff maintain a professional role. Crucial here will be who will win the 21 CPAs. Will it be the private for profit justice sector - Serco, G4S, GEO or Sodexho? Or will the majority of contracts go to private business process outsourcing agencies such as Capita, Interserve or Amey? If the latter outsourcing private sector model predominates they do not know the business of probation and they will need the professional expertise provided by the CRCs. 

Certainly this will not be an easy time for any ex-probation staff. Back office functions are at severe risk and likely to be the first casualties of the changes. There are no guarantees over time that the codes and conditions of service will not be threatened and dramatically worsened as evidenced in similar outsourcing projects in other fields and that staff working without the opportunity to work with the same range of clients will suffer loss of expertise in risk assessment, report writing and the management of high risk cases. The protection of training and stuff development and the ability to move between organisations for professional updating and career progression will be crucial. Of course working in an organisation where justice for profit is the key motivator may simply be, for some, a moral prospect which cannot be entertained. We have to understand that reluctance given the traditional vocationalism of so many in probation work. 

On the other hand there may be opportunities as well within these structures. Without the bureaucratic restrictions of being in a public sector agency, there may be improved technology support, opportunities to think outside the box, to innovate, to create and use resources differently. More job opportunities may arise in bigger companies and through some protection of service with the MoJ, who have the capacity to step back in if this experiment fails to deliver, there could just be a chance for probation to flourish again in the future. 

If ownership of public services is distributed amongst a constellation of private sector companies, third sector, mutuals and the residual public sector questions about the responsibility for the maintenance and quality of services urgently arise. Contracting is a threadbare model of accountability and quality assurance. There will be an urgent need to create a competency framework which supports a range of career opportunities in this new mixed economy of provision. It is clear that government do not want a statutory probation registration system in the short-term but a voluntary register developed under a potential Probation Institute will be a key way to bind new providers to a recognisable kitemark. Although it may be seen that the loosening of national standards might be advantageous to innovation in offender-centred practices without regulation how is good practice identified and maintained? Such an Institute is in development through the PCA, PA, Napo, Unison, Skills to Justice, higher education and with the voluntary sector and eventually the contract providers which will hopefully create an independent, credible organisation charged with maintaining the occupational culture, the value-driven institution of probation. 

The growing political and public disenchantment with these changes maintains a small sanctuary of hope that a pause or abandonment of this unnecessary and wrong-headed competition will eventually transpire. It is no surprise that probation staff are feeling confused, angry, hurt and demoralised. Some will fight, some will leave and some, driven by protecting the needs of their families, will simply be resigned to the changes but without commitment. The cacophony of noise created in rallies, in the social media, through Napo strike action and the resistance provoked by attempts by the ministry to bulldoze changes through when they are not yet fully thought out or agreed produces some hope that the government will be forced to think again. 

There is a growing political resistance on both sides of the Houses of Parliament to these changes. The tyranny of the PQQ process may well make some private companies think again about the desirability of engaging in this new market. The final resolution of what the Minister called 'corporate renewal' by key private sector companies will determine whether those alleged misdemeanours amount to fraud and force their withdrawal from the competition or those concerned take their ball home anyway fed up with the threats to their commercial interests elsewhere. This does raise question marks about whether there remains a sufficient market for such a competition to take place anyway. For now, the probation trusts still exist and it is hoped that they will be given a stay of execution. The media becomes more aware day by day to the folly of what is unfolding. 

The Editorial Board of the British Journal of Community Justice hope in this issue to provide a significant snapshot of some of the considered thoughts of academics, probation practitioners, ex-offenders and other commentators about the recklessness at the heart of these unwarranted, untried and risky changes. 

The response to the call for papers illustrates the concerns of the wider community. There has been an unprecedented eagerness to contribute, though no submissions were received expressing unqualified support for the TR changes. So much has been received that this has been designated a double issue, though even then we have published well in excess of our norm. Rather than split the contributions we have maintained it as a single publication, we hope timely enough to influence the debate. Though we did not request papers in themes we have divided the issue into five broad themes which have emerged from the contributions. In addition we offered the opportunity for some to write an open letter to the Minister and four have taken up this opportunity. I hope the minister takes time to read and respond to the issues raised. The five themes are summarised as overview of TR; measuring outcomes; occupational cultures; women, race and TR and practitioner views. 

Overview of TR 

Two contributions in this segment kick off the issue. Bowen and Donaghue go to the heart of the concepts of local and community justice as a counterweight to the marketization imperatives of government policy. Is the former compromised by the focus on the latter ideology which is at the heart of TR development? Marples explores the role of the voluntary sector under the TR plans. Analysing what the official literature says about their role the article asks important questions about how these changes fit with the original mission of the VCS and the consequences for them of responding to the changes. There are two thought pieces in this section. Webster tries some future gazing by reframing the timetable for TR to see if a more evidence-informed approach could test out the ideas over a longer period without the damaging consequences associated with the current rush to change. Harper looks at the marketisation of justice services and suggests that the focus on building prisons, in itself, contributes to a flawed approach which diverts resources away from community provision. 

Measuring Outcomes 

One key idea at the centre of government rhetoric is the importance given to rewarding success in reducing re-offending, so-called 'payments by results'. Hedderman analyses the underlying themes at the heart of this idea suggesting eight ways in which the fundamental precepts may be problematic and demand some re-think. Wong focuses on a case study of Integrated Offender Management. Drawing on extensive experience of researching this area he highlights how difficult it is to attribute additionality to IOM as an intervention when looking for reductions in re-offending. He goes on to point out some of the difficulties of operationalizing IOM in the current TR plans.

In the Thought Pieces we have a characteristically innovative contribution from McNeill highlighting some fears at the heart of the TR agenda. Fitzgibbon focuses cogently on issues of risk and the consequences attendant upon the fragmentation to services. 

Occupational Cultures 

Robinson explores the nature of the occupational culture underpinning probation over a long period. The nature of this culture is assessed and links made to organisational changes in youth justice. Robinson argues that even when systems and structures change adaptation is often slower, with resistance and re-working, rather than producing a radical overhaul of occupational and professional identities. McGarry's thought piece pursues the theme of occupational culture suggesting that the culture of public service values may not re-work easily under the new more commercial world of TR. Clarke also is concerned that one key aspect of probation culture, the presence of reflective practice, may well flounder under the new arrangements. Mawby and Worrall highlight aspects of their recent book which Robinson also draws on to suggest that the risk to the institution of probation is very real and disturbing in the TR world. Finally Dominey, drawing on recent empirical research with service users, suggests that working with involuntary clients demands a distinctive ability to work effectively with people who are ambivalent about change and not always easy to engage. She wonders whether the more impoverished environment of TR will enable such supportive supervision to survive the organisational changes. 

Women, race and TR 

Given the relative neglect of women and race under TR proposals there is rightly a deep concern for how some of the more innovative developments of recent years can be sustained. Gilbert focuses in her article on the fate of domestic violence work given the projected pattern of organisational change. She argues persuasively that such offences mean a high risk of harm if not of re-offending and therefore could be designated as medium risk in terms of TR and be assigned to the CRCs. Some of the dangers in this approach are then explored. Gavrielides draws on recent empirical research in London Probation Trust relating to implementing race equality policies. Using the template for good practice developed by this work the author examines how such an approach can be sustained under TR arrangements and the risks associated with an approach which does not engage communities upfront in equality solutions. Birkett's thought piece is constructed as a conversation with a magistrate. It explores issues for court practices which the changes attendant upon TR will engender and the consequences for women in trouble with the law. Gomm draws on on-going research into the complex needs which women present in the justice system. The impact of good quality service provision on women with complex and diverse needs must be considered within a more sophisticated framework then TR allows. This raises a number of pertinent and difficult issues for practice. Finally in this section, McMahon, herself serving a suspended sentence, reflects on how the justice system has felt from her perspective suggesting the need for the system to understand more about the issues of housing, employment and substance misuse in planning and delivering services. 

Practitioner Skills 

The final section features two articles highlighting the impacts upon practitioners. Hylton draws on work undertaken to develop a training programme to support engagement with service users. It shows how long it takes to develop exercises which have empirical validity and which can improve practice. He doubts that TR will foster this kind of innovation. Calder and Goodman range across some of the broader issues of practice which the TR changes will threaten. Drawing on the consequences for practice the authors highlight how supervision risks becoming more idiosyncratic, possibly more rule-bound and will be less sensitive to issues of race and gender. Norton's thought piece is driven by the uncertainties created in returning to probation after an absence of some years at a time of such change and disruption and questions whether the traditions of practice have already been vitally compromised. Guilfoyle, having recently retired, reflects on what he considers a lifetime of innovative and transformative practice and simply he asks whether TR really can provide that level of creative potential. Finally Evans focuses on another neglected group in these changes, those at the transition from youth care to adult provision. This provokes questions concerning what will happen to this particularly vulnerable group of care leavers. 

Concluding thoughts 

Reading through these contributions and also adding the passion and sheer exasperation which emerges from the Letters to Grayling it is tempting, if not impossible, not to conclude that the TR changes are simply wrong-headed and do not appreciate the complex web of reciprocity that probation functions within. It is often stated in debates that probation is little understood and there is little doubt in a sound-bite world probation is not a sound-bite organisation. But what these papers suggest is that this is as it should be. Probation deals with complex, difficult and intangible problems in a quietly authoritative, caring and committed way. Moreover even in the language of government it works. Probation on the Justice Ministry's own figures reduces re-offending and moreover offers service users real opportunities to reintegrate into society. Rather than throw this away in the rush to appeal to an ideological dogma hardly demonstrably successful in any other field of welfare reform surely now is the time to stop and think again. These contributions suggest that is self-evidently the case. We invite the government and the Ministers to take note.

Paul Senior