Post-Rational Probation: Learning from mistakes or history repeating itself?

When I say we live in a post-rational world some people still tend to look at me a bit odd and say, “Really…what do you mean?” A good clear example of what I mean is what happened to the probation service in England and Wales in 2014-15.

To recap for anyone who missed it - the Coalition Government, seeking to find a way of extending probation services to around 60,000 extra offenders who were released from prison after serving sentences of under 12 months decided on a bizarre solution. They would split local probation services in half - one half, looking after the high risk offenders, would be nationalised and run from Westminster; whilst the other half, looking after low and medium risk offenders, would be sold off and run by the private sector for a profit.

Let that idea sink in. Imagine if that was proposed for your local fire service… to look after more incidents a Government decides to nationalise management of serious fires and incidents where there could be a loss of life; whilst leaving the rest to a new privatised local service to respond to demand for a profit. Or local policing – half the service being nationalised and run from Westminster, so being brought under the direct political control of the Home Secretary; whilst medium and low risk crime would be sold off to security firms for a profit. Anyone else thinking a) there would be chaos and b) no-one would ever elect such idiots…?

And yet, inside 18 months from the start of it’s 1st consultation to the sale of half the service to 9 companies sharing 22 contracts, that’s exactly what the Coalition did to probation. Not even a pilot project to test the madness. It would be easy to blame the Lord of Post-Rationalism, Chris Grayling MP who as Secretary of State. But there has to be something systematically wrong for Grayling to have been in charge of probation in the 1st place – the 1st ever Lord Chancellor to have no background in the law who was ‘promoted’ after making a complete mess of the DWP ‘Works Programme’ and remains in Government... currently having lead responsibility for the 2 most expensive infrastructure projects in British history (HS2 and Heathrow Expansion).

Every expert who knows anything about probation said such a split would be dangerous as well as inevitably introducing additional bureaucracy, communication barriers and being more expensive than retaining unified local services. But the Minister did it. Partly because the majority spoke up (apart from Napo and some lawyers who were livid about parallel legal aid cuts) did so in whispers, some in case they lost their redundancy packages or upset new pay masters; whilst others were dismissed as lefties (“They are bound to be if they are in probation” one Tory said to me) or even worse, trade unionists.  Napo, the professional association and union for probation for over a century unsuccessfully threatened a judicial review leading to the MoJ putting two high paid civil servants on to examining our accounts to try and get us shut down.  

The main opposition parties should also be reflecting on their passivity during Grayling’s TR revolution. The LibDem’s were actually in Government, accusing those who voiced concerns since grimly realised that we were, to quote Minister Simon Hughes, “being hysterical” and defending “vested interests”. Labour did oppose TR to a degree, with particularly valiant efforts from their House of Lords team, but the feeling now was that many could have spoken-up louder and stronger (especially Labour members of the Justice Select Committee at the time) but failed to do so because there are few votes in probation – at least until something catastrophic goes wrong. On this point, one of the most post-rational consequences of TR is the Secretary of State now taking direct responsibility for all Serious Further Offence investigations, rejecting on cost grounds a universally supported proposal to pass this to the HMI Probation Inspectorate. This takes the centralising tendency in nationalisation to a new extreme. The political costs and implications of this could yet be enormous – if he had to sack the Parole Board Chief after a highly publicised case, the risk of having to become probation’s Grim Reaper by finding someone to blame every time someone on license kills or seriously injures someone is massive and so unnecessary.

Contracts Miss-sold

The private sector Community Rehabilitation Company (CRC) contracts have been beset with problems from the start. Like many privatised public services the root problem starts with Government letting the contracts on the cheap with companies taking 1st generation contracts on ridiculously tight margins (2-5% in most cases). These have been worse because Government also over-estimated the amount of work and weighted payments to supporting the wrong kind of clients. How? Well they’d run zero pilots and didn’t really know what was being sold. Quickly, CRCs started shedding experienced, highly qualified and so more expensive staff. Offenders would be supervised over the phone instead of face to face. Offices would be closed in favour of trying to conduct sensitive meetings in public places. Programmes that didn’t make a profit would be cut. Contracts with specialist local charities would be severed and taken in-house.

Nationalisation Fails

But the nationalised bit was hardly any better prepared for the Revolution. They got far more work than budgets had predicted so have had massive staff shortages leading to dangerous workloads. Line managers had all HR functions added to their workload with little to no specific training. To make matters worse the MoJ’s HR Shared Service Centre (SSCL) was forced on probation with an assumption that all staff would harmonise to civil service terms…something that should have evidently been impossible as the whole programme was legally dependent upon transferring staff remaining in the local government pension scheme because the Treasury wouldn’t meet the liability costs of staff moving from a funded scheme. The SSCL computer was never re-programmed (there wasn’t time) and so probation has been undermined by constant basic HR errors – e.g. new starters not being paid for months; people being given the wrong maternity pay; thousands not having their correct pension contributions collected by PAYE.

Nationalising half of probation is a daft idea – it inevitably works on trying to do exactly the same thing everywhere when by definition probation requires different approaches in Haringey and Hereford; Newcastle and Norfolk. That nationalisation also runs the risk of generating Kafka-esque bureaucracy and accountability voids shouldn’t be news. The same Ministers who voted to nationalise half of probation despite Labour and union opposition have been giving speeches about it for decades.

Impact on Staff

But the worst part is the impact at local level on the staff, clients and victims. Splitting the service creates communication and intelligence sharing barriers that can be literally fatal. Trust has eroded between the different halves of the service; between local judges and Magistrates and probation services; and links with community intelligence has been weakened by excluding charities.

Before the half way point of the contracts the NAO, Public Accounts Committee and Justice Select Committee were all commissioning or publishing critical reports and enquiries into what had gone wrong. CRC owners were looking to bail out or begging the MoJ for additional funding to avoid going bust. After the wave of publically funded early departures in 2014-16 both the NPS and the CRCs have too many vacancies for probation staff to fill.

Learning Lessons or Repeating History’s Mistakes?

Earlier this year Government finally announced they were terminating the contracts early. So have lessons been learned….?

Well – maybe but maybe not. Government have again run a consultation period over a summer holiday when Parliament was in recess…setting school homework over the summer holidays with doubts that anyone will spend anytime marking it. The consultation suggested the solution could be just offering bigger contracts and ensuring the local NPS Directors have greater oversight – the same companies just being given bigger more expensive contracts supported by the same NPS Regional Directors who can’t be trusted to make decisions by Minister or Treasury now. We’re told, all but 1 submission said reunify the service but the MoJ contracts team confirmed to Napo on 17th October that they are planning to push on with implementation on the assumption nothing changes after the consultation because of time pressures. They couldn’t answer Napo questions about how they can consult about incorporating into the wider contracts lessons from reunifying most services in Wales if they are aiming to let the wider contracts at the same time as they reunify in Wales…so hopeless and continuous contract variations could also be re-baked into the new contracts – history repeating its mistakes.

A Rational Alternative

There is a rational alternative, with an emerging consensus amongst unions, experts, academics, charities and wider social partners. This involves:

• ·        Starting by reunifying the local delivery of core probation services.
• ·        Binding these with clear professional standards and a licensing system to put probation on a professional footing with medicine, education and social work.
• ·        Devolving local accountability and commissioning of additional support services to new Community Justice Partnerships (similar to local Health Boards).
• ·        Properly assessing how much good and safe probation costs and using public money to fund extra investment from savings generated from sending fewer people to prison. Private profit off victims’ suffering is immoral but also inefficient.

What happens next in probation is a test case – not just for parliament and politicians but for our society. After all, we get the politicians we deserve and half the electorate keep talking about how they believe in taking back control. Those of us who retain a sense of reason need to make our case. The TR counter-revolution starts now.