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On Thursday 26 July, the Offender Management Bill received royal assent and became an Act.

The Act comes into being three and half years after Patrick Carter’s original report, “Managing Offenders, Reducing Crime”, which recommend NOMS and the introduction of contestability into the work of the Probation Service.

The Offender Management Act 2007 differs markedly, not only from the NOMS as envisaged in the original Carter report, but also from the OM Bill as originally published last November.

Napo can take much credit for the significant changes that have been secured. Members and branches have successfully lobbied their MPs, and the debates in both the Commons and the Lords have raised the profile of the Service and increased a wider understanding of our work.

Ideally we would have defeated the Bill completely or secured more amendments, but we should not underestimate what we have achieved. As we said in Campaign Bulletin 23:

“Whilst the danger of fragmentation and privatisation remains, the final shape of the Bill allows for a strong Probation Service, appropriately working in partnership with other providers, winning through.”

This circular briefly summarises the changes that we have secured, and Napo’s next steps in what will be our ongoing campaign to “Keep Probation and Keep it Public”.

The Bill and the Act - Spot the Difference

When the Bill was fist introduced in November last, the NOMS press statement read:

“The new offender management bill published today aims to reduce re-offending and better protect the public by improving the way in which offenders are managed. In particular, the bill seeks to remove the public sector monopoly on the provision of probation services and enable the Secretary of State to commission services from the best available provider in the public, private or voluntary sector.”

Last week’s press statement read:

“The Offender Management Act received royal assent on Thursday July 26th. The aim of the Act is to improve the delivery of probation services so as to reduce re-offending and better protect the public. It will do so by allowing for the establishment of probation trusts; supporting the development of the commissioning of probation services; and enabling greater partnership working with providers in the voluntary, charitable and private sectors.”

The underlined sentences reflect differences in both tone and substance between November 2006 and July 2007. The July statement continues:

“Under the Act, the commissioning of probation services will be an activity taking place at national, regional, and local levels. Instead of the current situation, where 42 probation boards are managed directly from the centre, local lead providers will work under contract to Regional Offender Managers (ROMs) for the delivery of services in a probation area. Provided their performance meets the requirements, the lead provider in a probation area will be the probation trust. The lead provider will concentrate on the delivery of offender management, while commissioning much of their interventions work from other providers based on what is most effective, and who is best placed to deliver, in their local community. Where interventions can be delivered more effectively across a region, ROMs will contract directly with providers, but this will be so as to complement, not replace, the local arrangements.
Dates have not yet been set for when the various provisions will be brought into force, but we are planning to establish the first wave of probation trusts in April 2008.”

This statement reflects the concessions made in the Bill on the fact commissioning from non-public sector providers will not apply to court work unless both Houses of Parliament decide otherwise, and will not apply to offender management, until 2010 at least.

It also reflects the non- legislative commitments that were given on commissioning taking place at a local level as well as at a national and regional level. The statement makes it clear however that it is the intention to contract out interventions work to other providers, albeit subject to “what is most effective” and ”who is best placed to deliver”.

Concessions

Jack Straw’s 16 July letter to MPs, (attached), refers to 20 concessions or amendments that the Government has made during the passage of the Bill. The table attached to the letter has been amended in the boxes by Napo to reflect our current understanding of the final position defined in the Act.

Also attached is a 19 July letter from Jonathan Slater, Director of Performance and Improvement for NOMS, to the PBA, which also clarifies a number of aspects of the legislation.

In addition to the concessions as referred to above, on exclusions from the commissioning process and the role of local commissioning, other significant concessions include those that relate to local accountability, local consultation and local links and those that safeguard the standards and the professionalism of the Service, including training, national standards and national collective bargaining, and those that ensure that the equality provisions apply to all providers.

A further amendment on conflict of interest has been promised, but at the time of writing Napo has not yet seen its exact wording.

What does it All Mean?

Civil servants are using the phrase “light touch” when they refer to the Act. In other words this could mean that its exact interpretation will depend on the current attitude and philosophy of the Government ministers of the day.

As a minimum we know that the Act will mean a continued threat to contract out interventions work. Time will tell whether other areas, such as court work and offender management, and possibly a whole trusts, eventually come into the firing line.

Subject to performance, “at the outset”, the lead provider in an area will be the probation trust, and boards need to demonstrate a certain performance level to become a trust in the first instance.

Jonathan Slater’s letter to the PBA makes it clear that, although there are no plans to merge trusts, one trust could take over another’s work or trusts might put forward a case for merging.

NEC 46/2007 set out the potential freedoms that trusts might have. This is still work in progress by NOMS, although the first wave of trusts will be determined at the end of this month.

To date we still do not know:

• The arrangements for regulating trusts;
• What the new freedoms that trusts will have will mean in practice;
• How trusts’ freedoms will be reconciled with government policies on criminal justice and the need for a national strategy, on say workforce planning, to meet the needs of such policies ;
• How these freedoms will not increase rather than reduce the silos between all parties;
• How the new arrangements for Probation will work without sentencing policy being addressed - using custody for only those that need it, promoting instead community sentences and restoring the use of fines and discharges - which Patrick Carter said was a pre-requisite for his proposals to succeed;
• How Probation Services will operate under the revised legislative framework without a significant increase in resources;
• How NOMS will operate without a functioning IT system that enables communications between all parties, in a way which C-NOMIS is clearly not delivering;
• How “effectiveness” and “best value” will be determined and defined in the commissioning process;
• Whether the Probation Service will continue as a clear national profession with a national Director and a national voice;
• Whether it is the case that the number of ROMS is to be reduced as their role has now declined;
• How, and if, NOMS will ensure that the value base of the Probation Service and the promotion of anti-discriminatory practice, and of equality and diversity, are not lost in the competitive new world of commissioning.

The reality seems to be that “light touch”, is code for “don’t know”.

What Next?

Prior to the legislation being agreed, Ministers argued that staff would feel more assured once the Bill had been finalised. The reality is that there remains a huge level of uncertainty about the future shape of the Service, and there is still a complete absence of any vision that could motivate and inspire staff.

Napo remains of the view that the fragmentation of provision and the reality of competition that this Act provides for, will not contribute towards the reduction of re-offending.

It is ironic that Jack Straw has now returned as our Secretary of State, as was his 1998 consultation paper, “Joining Forces to Protect the Public”, which referred to the Probation Service at that time, as a “fragmented organisation”; something his 2001 Act and the creation of the NPD sought to address.

Napo’s strategy will therefore be twofold ensuring that:

The interests of members are protected and promoted at all times.

For members in areas of work that will be subject to the commissioning process, Napo will be seeking to ensure that “best value” is not interpreted as “lowest cost”, and that equality impact assessments are undertaken in all cases. Napo will ensure that members’ terms and conditions are protected, in the event of a transfer, through ensuring the application of the TUPE provisions and of the Two Tier Workforce Agreement.

We continue our wider campaign for “Keeping Probation and Keeping it Public”.
This means continuing to:

• play our part in shaping the future of the Probation Service within this “light touch” legislation, building on the success and improved performance of the Service to date;
• ensure that the focus of any change remains the reduction of re-offending not the delivery of services on the cheap;
• press for a business case and an evidence base to justify any further change;
• press for the necessary resources to be provided to underpin the Services' work and to ensure that staff have manageable workloads;
• press for the highest standards of training for all staff;
• press for sentencing policy to be addressed and for Ministers to promote and speak up for community sentences and the work of the Probation Service;
• work for staff to be able to believe again in the vision and the values of their Service.

Napo’s negotiating, campaigning and lobbying activities on all these issues is already underway. Only last week, I wrote to Jack Straw asking for urgent action to tackle the Service’s current budgetary crisis, a crisis which is being exacerbated by the extra work involved with ECL, (End of Custody Licence), and a crisis which is evidenced by the fact that around 100 of the 454 Trainee Probation Officers due to graduate in September are being told that their Services cannot afford to employ them.

So Napo’s campaign to “Stop the Bill” may be over, but the next stage of our campaign to “Keep Probation and Keep it Public” begins.

Yours sincerely,

Judy McKnight

General Secretary
Napo

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