Labour Research June 2014


Probation service up for grabs

What impact will the part-privatisation of the probation service have on those who work in the service and on public safety?

From 1 June 2014, probation trusts ceased to exist. Under the Tory-led coalition government’s Transforming rehabilitation reforms, the supervision of high-risk offenders will remain with the state-run National Probation Service (NPS).

But work with medium- and low-risk offenders, up to 70% of the work of the probation service, will now be carried out by 21 new regional organisations known as Community Rehabilitation Companies (CRCs) until this work is handed over to the private sector companies and consortia currently bidding for this work.

The government describes its Transforming rehabilitation programme as “a revolution in the way we manage offenders”. And it argues that its reforms will reduce reoffending rates while delivering improved value for money.

The key aspects of the reforms include:

• the creation of a new National Probation Service (NPS);

• statutory supervision and rehabilitation in the community “for the first time in recent history” for every offender released from custody. The Offender Rehabilitation Act 2014 extends statutory supervision and rehabilitation to around 50,000 offenders who are sentenced to less than 12 months in custody;

• a new nationwide “through the prison gate” resettlement service to give most offenders support from custody into the community. To support this, most offenders will be held in a prison designated to their area for at least three months before release;

• the part-privatisation (up to 70%) of the probation service; and

• a new “payment by results” system for reductions in reoffending.

Probation unions say the service has a good record, doesn’t need this “revolution” and that the true motivation behind the reforms is to drive down costs — as well as an ideological commitment on the part of the government to the private sector being the preferred bidder as opposed to state-run services.

For example, the Napo union for probation officers reports that over the last two to three years, every probation service in England and Wales has met its targets and all have performed well. In the majority of trusts, this has been to a standard of excellence.

Ben Priestley, national officer for probation members in the UNISON public services union, said: “Probation is a successful, local, accountable body that has worked well with its local partners including the police, community and voluntary sector, local government and the health service and has proved its worth.”

Collapse in staff morale

The reforms, unions argue, are fragmenting and damaging the probation service and staff morale and putting public safety at risk.

“Morale is at an all-time low among practitioners, not only because of concern about their own future, but also because of their fears about the impact of the changes on reoffending and rehabilitation,” Tania Bassett, Napo national officer for press, Parliament and campaigns, told Labour Research.

“Implementing the changes to such an aggressive timetable [see box below] is causing sheer chaos. Workloads are going through the roof as a result of increased bureaucracy caused by the split.”

One example of the impact of increased bureaucracy, she says, is that probation officers are now able to write only two, instead of three, same-day pre-sentencing reports. This is leading to delays in sentencing, with victims having to wait longer for closure, and costs increasing as a result of hearings having to be adjourned.

And, say unions, things can only get worse. UNISON’s Ben Priestley said that splitting the service in two will introduce barriers to joint working, and that currently “seamless” teams — 25% of offenders change risk during the course of their order or licence — will be split and could be relocated to completely different offices. Privatisation is likely to mean subcontracting, which will result in further fragmentation.

“The replacement of a unified, locally-accountable probation service with four, five or even six different organisations is a truly dreadful prospect for UNISON members and bad news for service users,” Priestley told Labour Research. “Who do you hold accountable when things go wrong in long, fragmented supply chains?”

He added that because the reforms are being implemented “with no regard for the impact of the changes on the workforce”, they risk driving people out of the service.

“The successful rehabilitation of offenders depends on finely-tuned, skilful behaviour of probation staff. Their skills and expertise are being ignored under the reorganisation and there is a real risk of people leaving.”

Napo members have already lodged 1,600 grievances and 500 appeals, with nine out of every 10 of these from staff who have been placed in the soon-to-be privatised CRCs. And the vacancy rate is soaring.

The number of staff vacancies across the service currently stands at 500, according to a Freedom of Information request by the Labour Party. In London alone, there are 284 vacancies.

Risk to public safety

“These reforms have not been piloted. They are an untried and untested social experiment,” said Napo’s Tania Bassett.

“If the split between the management of high-risk and low- and medium-risk offenders and payment-by-results reforms were piloted for two years, evaluated and shown to work, we would wholeheartedly support them. But this has never been done before.”

She said that there is no evidence that the reforms will achieve the government’s stated aim of reducing reoffending rates and, instead, “every sign that ripping up a coherent, joined up and locally-accountable system of public protection and rehabilitation that has been in existence for more than 100 years will put public safety at risk and result in more victims of crime”.

Earlier this year, Napo members took strike action in protest at the impact the reforms will have on public safety. The probation service supervises around 220,000 people and every year people on probation or parole commit around 400 serious offences including murder, manslaughter, robbery and rape.

The union says there is a real risk that these incidents will rise, not least because there will be insufficient staff in the private sector with the ability to properly recognise risk, and because these offences normally occur when an offender is going through a period of change, including a change of supervising officer. “There is a real risk that there will be more offences during these intense changeover periods,” it says. Napo will re-ballot its members over further action following their transfer from probation trusts to the NPS and CRCs.

Breach of Forced Labour Convention

Unions have also questioned the legality of the privatisation, which is being carried out under the 2007 Offender Management Act, introduced under the last Labour government. Labour strongly contests that this legislation has the power to privatise probation and UNISON says it is keeping under review legal avenues to oppose the privatisation.

Napo, UNISON and the GMB general union have also jointly referred the government to the International Labour Organisation (ILO) for breaching the ILO convention on forced labour by privatising the Community Payback (community service) scheme. Article 24 of the ILO Forced Labour Convention states that community payback orders must be supervised by the public sector.

Under the government’s plans, this supervision will be handed over to the private sector. More than 200 Community Payback orders are imposed by courts in England and Wales every year and result in around seven million hours of unpaid work in the community.

The unions say the government first breached the Convention over 12 months ago when it put outsourcing firm Serco — the company who last year had to repay around £68.5 million to the government for overcharging on contracts to tag offenders — in charge of Community Payback in London.

The Ministry of Justice (MoJ) announced earlier this year that the contract, which shadow justice secretary Sadiq Khan claimed has been “a disaster”, would finish at the end of this year instead of 2016.

The three unions have also jointly written to all potential CRC bidders asking them to reflect on the potential reputational damage in delivering a contract which is in breach of the ILO convention on forced labour.

Union demands

They have also made clear to these companies that a number of collective bargaining provisions will be a requirement on each CRC.

These include continued recognition of the three probation trade unions; national collective bargaining to govern the pay, terms and conditions of all CRC staff, including new starters; existing national collective agreements on pay and conditions to apply to all staff, including job evaluation, pay grades and premium pay; and the maintenance of existing funding levels for national and local facility time for trade union representatives.

In addition, the unions say they expect all CRCs to offer the Local Government Pension Scheme to new starters, as well as the transferred workforce, and that they should price their bids accordingly.

Contracts should not be awarded

The MoJ claimed in January 2014 that “we are able to confirm that we are on track with the key aspects of the reform programme”. And it said that the competition process launched on 13 September last year “continues as planned and successful bidders will be in place and delivering services in 2015”.

Bids are due in by the end of this month. But unions say this leaves little time to decide on whom to award contracts of up to 10 years if they are to be signed this October before the pre-election period.

And although they say official information is difficult to come by due to “commercial confidentiality”, the unions believe that several potential bidders have withdrawn from the process. If their information is correct, this will mean that in some areas there will be no competition because only one bid remains.

In Northumbria, for example, they believe that the Sodexo facilities management multi-national is the only contractor bidding for work to reduce reoffending. The company also runs Northumberland prison where it stands to make more profit if offenders go back to prison — a clear conflict of interest, as Napo points out.

Labour is opposed to the reforms and, in April, Sadiq Khan wrote to the permanent secretary at the MoJ, Ursula Brennan, asking that either the contracts be held up on the grounds that it would be wrong for the government to make such an important decision only months before an election, or that they are written in such a way that they can be cancelled by an incoming government without huge financial penalties.

Napo says that in the run-up to the general election, it will be focusing political lobbying on Liberal Democrat politicians while continuing to work with the Labour Party. “

The coalition’s justification for this was that offenders released from custody after serving sentences of 12 months or less should be supervised and rehabilitated in the community,” Bassett told Labour Research.

“That aim is not controversial and could have been carried out by probation trusts. In fact, 30 of the 35 trusts have said they could do this work within their current budget and system. But it will just not happen under the cut-price, privatised model the government has adopted.

“We will be making clear to all MPs that these reforms are leaving the service in such chaos that there is no way it will be able to provide supervision and rehabilitation for this additional group of offenders.”

Timetable for probation service reforms

The government announced in January 2013 that it intends to privatise up to 70% of the probation service.

But unions say the timetable for the reforms is “extraordinarily rushed”.

In June 2013, a risk register compiled by the Ministry of Justice (MoJ) was leaked, showing that the government intended to let contracts by the beginning of October 2014.

The risk register called the timetable “aggressive” and “challenging” and pointed out that the timetable had already slipped.

In December 2013, the government announced that 30 bidders had passed the first stage of a competition to win rehabilitation contracts.

While Serco and G4S are not on this list, the A4E training company, previously contracted by the government to help unemployed people find jobs, did pass the first stage.

In September 2013, nine A4E workers were charged with fraud for allegedly faking documents that falsely claimed they had found unemployed people jobs. A second investigation resulted in fraud proceedings against five staff (including one charged as a result of an earlier investigation).

The Public Contracts Regulations 2006 require the government to treat any contractor convicted of fraud as ineligible to bid for contracts.

Capita, Carillion, GEO Group, Interserve and MTC Amey are among other companies on the list. They are due to submit bids by the end of this month.

Probation staff have been split between the new National Probation Service and the Community Rehabiliation Companies (CRCs — see main text). This was originally planned to have taken place by 31 March 2014. But “shadow operations” (in advance of private companies taking over the work of the CRCs) commence on 1 June 2014.

Justice secretary Chris Graying, giving evidence to the Justice Select Committee in December 2013, indicated that the share sale may not occur until mid- to late-December 2014, and there is some doubt that the privatised CRCs can commence before the start of the general election.