Three reasons Chris Grayling's outsourcing plan for the probation service is a terrible idea

It's the Work Programme all over again, and this time, damage to public safety is a high price to pay.

Last week, the work and pensions select committee published its second report into the Work Programme. After six months of inquiries, the committee found that it was failing some of its most difficult cases. The central premise of the job finding scheme was for contractors - big companies, small companies, charities - to be paid by their success or otherwise in getting people back to work. You might have predicted what impact this binary target-driven culture would have: the committee concluded that "Creaming and parking" (helping the jobseekers for whom it's easier to find work) was endemic.

Now this is bad news. It’s disturbing because of the resulting joblessness and the increased benefits that’ll have to be shelled out by the state, but it’s perhaps even more disturbing because one of the chief architects of the scheme, Chris Grayling, is now at the Ministry of Justice, and attempting to bring in a similar system with regards to probation. When the Work Programme fails, someone doesn’t get a job. When probation fails, there’s a very real danger to the public.

And that’s why it’s vital for those working in the sector to raise concerns. But there seems to be every indication the minister doesn’t want to hear them - even going so far as to gag staff on social media. Earlier this year, I spoke to senior probation managers about the forthcoming plans for outsourcing. A number of concerns were raised - primarily about the lack of detail.

A couple of weeks ago, Grayling expanded on the plans in parliament. We learned that the probation service, which currently deals with 250,000 cases a year, will remain responsible for the 30,000 high risk cases, while control of the roughly 220,000 low to medium risk offenders will go to private firms and voluntary groups.

There seems an obvious issue here - one which has an uncomfortable parallel with the Work Programme’s struggles. How do you tell if someone is high, low, or medium risk? Are people really that simple? Aren’t these definitions changing all the time? Ian Dunt cites the example of domestic abuse in his excellent piece on the scheme:

Perhaps an offender has a minor conviction of some sort and authorities are aware they have problems at home. They are low risk. Then something changes. Neighbours hear fighting in the house and inform the police. The risk level has changed and it has to be managed accordingly. Supervision needs to increase.

Savas Hadjipavlou, Business Director of the Probation Chiefs Association, tells me:

There’s a difference in relation to accountability. Originally the public sector was simply accountable for everything that might go wrong. There was a suggestion it would have people in outsourced offices - that’s gone away and now a series of triggers are proposed. If the offender is of a certain risk level to go to contracted services there are triggers that mean they come back.

It might sound a decent solution - but there’s remarkably little detail on what these triggers are. The Government’s documentation makes vague reference to a “change in circumstances,” but that’s about it. And what happens when a client is deemed serious enough to be moved back to public sector staff? Will the work done by the private sector providers be forgotten?

There’s a more pressing issue - that of accountability. Bluntly: if the public sector is overseeing things, then whose fault is it if an offender being dealt with by the private sector kills someone? Mark Ormerod, Chief Executive of the Probation Association, tells me:

We understand the provider would be accountable if they hadn’t pulled the triggers. It would come to a review of the case in the way that happens now. The issue we drew attention to is that it’s more likely to go wrong because you’ve introduced an interface. Things go wrong when communication breaks down. And it gets more complicated when some of the triggers have been pulled, and when the person goes forward and backwards between providers it becomes more difficult to assign responsibility - whose fault is it? Risk levels change in about 25% of cases. In some of the cases we’ve looked at, the risk levels change substantially. Low or high-risk cases are easier to manage. They’re the minority though. It’s the bit in the middle where change is dynamic and contextual.

Of course the other thing about this system is that money’s involved: we’ve seen exactly the impact it’s had on the Work Programme. Surely it could mean the providers will be incentivised to pull some triggers and leave others? “Therein lies the difficulty: other factors come into play. They have recognised this - the public sector will be able to carry out renewed risk assessments. It goes back to the point about how the operating model works in practice: it’s difficult to regulate it by contract,” says Ormerod.

Hadjipavlou expands on this:

Originally the public sector could pull in a case - we asked how would they know when they could call it in. This is an attempt to say the public sector doesn’t have responsibility for the whole thing. It places more emphasis on the assessment system. But risk assessment is not that precise a science. The culture will be new to the providers. It’s about looking at the behaviour of an individual intelligently, looking at the person intelligently. Is the risk assessment system capable of that fine granularity?

And lurking beneath the radar is another issue - one that’s rather complex, which is why it’s not received much coverage. Under the Work Programme “Primes” like A4e contract work to smaller providers - “Subs”. There have been problems with this relationship, with dodgy contracts drawn up by the big firms' armies of lawyers, which have lead to the smaller ones losing money and in some cases going out of business. First, there’s a lack of detail here around how this is to be avoided: the proposals don’t even explain how the subs will be selected.

Second, this system is still one of the things the reform has going for it - it will, for example, free up voluntary agencies on crime-ridden estates to engage with people they know and who might respect them a bit more than statutory workers. However, for all their exciting ideas and local connections, you still have to preserve standards. Some expertise will come from the former state workers who take new jobs in the private sector, but the only nod to this issue is a mention of a new “probation institute”. Hadjipavlou tells me: “We’re supportive of the creation of an independent probation institute capable of promoting evidence based practice and standards across the public, private and voluntary providers.”

And there’s one more big problem - quite apart from the fact that there is no data to support the idea (the probation service has met all its targets, contrary to Government figures spun out about how it’s “failing” on the eve of the announcement, to the Mail and others), which is the timeframe. Ormerod says: “The speed at which we’re expected to ready ourselves is just breathless. There is more detail now but that only makes you realise more clearly how much has to be done in a very short timescale."


Three main issues with probation reform then: one, there’s no data to suggest it’s a good idea, two, the timeframe appears to be rushed, and three, there are few safeguards to prevent all the mistakes of the Work Programme being repeated (we’ve not even mentioned the threat of fraud that comes with the lack of transparency surrounding commercial contracts, nor the inflexibility of the Government contractors, as described here). It’s hard not to conclude the reforms are a frantic attempt to put ideology into action before an electoral deadline, rather than any kind of considered response to the problems of reoffending. The Government must tighten up these proposals. Damage to public safety is a high price to pay.
 

Chris Grayling has brought the ideas behind the Work Programme to the Ministry of Justice. Photograph: Getty Images

Alan White's work has appeared in the Observer, Times, Private Eye, The National and the TLS. As John Heale, he is the author of One Blood: Inside Britain's Gang Culture.

Photo: Getty
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Labour will soon be forced to make clear its stance on Brexit

The Great Repeal Bill will force the party to make a choice on who has the final say on a deal withg Europe.

A Party Manifesto has many functions. But rarely is it called upon to paper over the cracks between a party and its supporters. But Labour’s was – between its Eurosceptic leadership and its pro-EU support base. Bad news for those who prefer their political parties to face at any given moment in only one direction. But a forthcoming parliamentary vote will force the party to make its position clear.

The piece of legislation that makes us members of the EU is the European Communities Act 1972. “Very soon” – says the House of Commons Library – we will see a Repeal Bill that will, according to the Queen’s Speech, “repeal the European Communities Act.” It will be repealed, says the White Paper for the Repeal Bill, “on the day we leave the EU.”

It will contain a clause stating that the bit of the bill that repeals the European Communities Act will come into force on a date of the Prime Minister's choosing. But MPs will have to choose whether to vote for that clause. And this is where Labour’s dilemma comes into play.

In her Lancaster House speech Theresa May said:

“I can confirm today that the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”

Later that day David Davis clarified May’s position, saying, of a vote against the final deal:

“The referendum last year set in motion a circumstance where the UK is going to leave the European Union, and it won’t change that.” 

So. The choice the Tories will give to Parliament is between accepting whatever deal is negotiated or leaving without a deal. Not a meaningful choice at all given that (as even Hammond now accepts): “No deal would be a very, very bad outcome for Britain.”

But what about Labour’s position? Labour’s Manifesto says:

“Labour recognises that leaving the EU with ‘no deal’ is the worst possible deal for Britain and that it would do damage to our economy and trade. We will reject ‘no deal’ as a viable option.”

So, it has taken that option off the table. But it also says:

“A Labour approach to Brexit also means legislating to guarantee that Parliament has a truly meaningful vote on the final Brexit deal (my emphasis).”

Most Brexit commentators would read that phrase – a meaningful vote – as drawing an implicit contrast with the meaningless vote offered by Theresa May at Lancaster House. They read it, in other words, as a vote between accepting the final deal or remaining in the EU.

But even were they wrong, the consequence of Labour taking “no deal” off the table is that there are only two options: leaving on the terms of the deal or remaining. Labour’s Manifesto explicitly guarantees that choice to Parliament. And guarantees it at a time when the final deal is known.

But here’s the thing. If Parliament chooses to allow Theresa May to repeal the European Communities Act when she wants, Parliament is depriving itself of a choice when the result of the deal is known. It is depriving itself of the vote Labour’s Manifesto promises. And not only that - by handing over to the Prime Minister the decision whether to repeal the European Communities Act, Parliament is voluntarily depriving itself of the power to supervise the Brexit negotiations. Theresa May will be able to repeat the Act whatever the outcome of those negotiations. She won’t be accountable to Parliament for the result of her negotiations – and so Parliament will have deprived itself of the ability to control them. A weakened Prime Minister, without a mandate, will have taken back control. But our elected Parliament will not.

If Labour wants to make good on its manifesto promise, if Labour wants to control the shape of Brexit, it must vote against that provision of the Repeal Bill.

That doesn’t put Labour in the position of ignoring the referendum vote. There will be ample time, from October next year when the final deal is known, for Labour to look at the Final Deal and have a meaningful vote on it.

But if Labour supports the Repeal Bill it will be breaching a clear manifesto promise.

Jolyon Maugham is a barrister who advised Ed Miliband on tax policy. He blogs at Waiting for Tax, and writes for the NS on tax and legal issues. 

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