Offender Management Bill

I support the amendment in the names of the noble Baroness, Lady Anelay ofSt Johns, and the noble Viscount, Lord Bridgeman. I also support the amendment to that amendment, in the name of the noble Lord, Lord Ramsbotham, as the statement of principles in the Bill that the amendment seeks would be better for probation without the inclusion of ““punishment””. I am sorry that, on account of other commitments, I was not able to participate in the Second Reading debate, because many things needed to be said about a Bill that sets out to make such fundamental changes to a service—the Probation Service—that has served this country well over 100 years. But I am glad to be able to participate in Committee and at succeeding stages. However, having missed Second Reading, I then had to go to Australia for two weeks, so I have barely had the chance to get myself up to speed. When I arrived back and asked how I could most usefully contribute today, I was told to speak for as long as I could on the principles of probation. That is not the kind of advice that I am accustomed to receiving and, should anyone ever give it, they usually come to regret it. The advice that I usually receive tends in the opposite direction. I am sure that that advice was not intended to encourage me to filibuster but that it simply reflected the importance that many people attach to the principles of probation, the subject of the amendment in the name of the noble Baroness, Lady Anelay. All the same, I am mindful of the countervailing advice of an old mentor who used to say that there is little worth saying that cannot be said within a reasonable compass. I shall try to steer a middle course between the different sorts of advice that I have been receiving and keep my remarks as brief as I reasonably can. As the right reverend Prelate said, there is a good deal of confusion about the role of punishment in our system. I suggest that the best way to sort out that confusion is to look at the system as a whole and in its component parts and to try to allocate the different aims of the penal system to different parts of that system as far as one reasonably can. For the first half of my working life, I taught law in one of our major universities. I specialised in criminology and penology and it fell to me to teach students about the penal and sentencing system, which meant telling them about the different types of penal measure available to the courts, including prison and probation. Looked at as a whole, the penal system embodies a range of aims, from retribution, punishment and deterrence to reform and rehabilitation, protection and prevention. These are not divided up and parcelled out neatly among the different penal measures, with one measure representing one aim and another representing another. All penal measures have a mixture of aims and none represents a particular aim in pure form. However, most penal measures probably represent one aim more than others and most aims probably characterise some penal measures more thanothers. Thus, fines and imprisonment are associated with the aims of punishment and deterrence more than any others; community service is associated with reparation to society and making the offender aware of the effects of crime on the victim. But I repeat that none of those aims exists in pure form. It is hoped that making some reparation to society will have a beneficial effect in terms of rehabilitation. Even prison strives to deliver a rehabilitative effect, although most of the time it seems to be an unequal struggle. It went without saying in my day that probation exemplified the aims of reform and rehabilitation more than any others and that it was the penal system’s principal vehicle for pursuing these aims. From that point of view, probation was the custodian of all the most liberal elements in penal policy. It therefore came as quite a shock when I turned my attention to these matters again on my arrival in this House to discover how much things had changed in the intervening decades. It seems generally agreed that the historic values of probation have been progressively eroded over the past couple of decades, so I absolutely agree with the noble Baroness, Lady Anelay, and her colleagues that we must not miss the opportunity presented by the Bill, which threatens to wreak so much damage on the Probation Service, to reassert the traditional values of that service. Let me illustrate what I mean about the progressive erosion of probation. The distinctive qualities of probation, which set it apart from more traditional penal measures, were emphasised right from the start, as the noble Lord, Lord Ramsbotham, has reminded us, in the Probation of Offenders Act 1907. That Act enabled the court to appoint probation officers so that certain offenders whom the court did not think it fit to imprison might be placed on probation under supervision. The duty of the officers, as is well known, was to advise, assist and befriend. Telescoping the process considerably but still very much in line with the development of the Probation Service throughout the 20th century as the liberal arm of the penal system, in 1962 the Morrison committee characterised a probation officer as a, "““professional caseworker, employing in a specialised field, skills held in common with other social workers””." Rehabilitation, from the start and for most of its history thereafter, has been at the very heart of probation. But from the late 1980s onwards, underpinned by the Green Paper Supervision and Punishment in the Community, the process began to go into reverse and the Home Office started to move probation away from advising and assisting to community punishment. This was first formalised in the Criminal Justice Act 1991, which gave the Probation Service a central role in delivering punishment in the community. National standards first introduced in 1988 were substantially revised in 1995, 2000, 2002 and again in 2005, each time becoming increasingly focused on punishment, custody and enforcement. The Criminal Justice and Court Services Act 2000 changed the name of probation orders to community rehabilitation orders; community service orders became community punishment orders, and the combination order became the community punishment and rehabilitation order. By 2000, probation officers could for the first time recommend custody in court reports. This changed one of the fundamental values of a service historically geared to dealing with offenders in the community. The fact that the values of a service have changed over time, perhaps evolving with changing circumstances, does not prove that the clock should be turned back and traditional values reasserted; the values might have changed for good reason. But I do not think that this is so in the case of probation, and it is certainly not how those who staff and have to provide the service, whose morale has been considerably undermined by the changes, see things. Why do I say this? I do so for two reasons. First, although I have argued that none of the repertoire of measures available to the British penal system exists in pure form and all have a mixture of aims, nevertheless it is the case that all have a predominant character or ethos in which one aim by and large transcends the others and gives it that predominant character. Thus prison is principally associated with punishment, and probation with rehabilitation, reform and reintegration into society. It is right that there should be a degree of specialisation in the aims pursued by different aspects of the penal system, and differentiation of function between them, otherwise there can be a deal of confusion and unclarity of purpose. Punishment and rehabilitation do not cohabit well or make comfortable bedfellows. It is therefore important to retain within the penal system an institution whose raison d’être is to serve the traditional aims of probation, rehabilitation and reform differentiated from those elements of the system that are more oriented to supporting the aims of punishment, custody and deterrence. Secondly, if we look at prison, where there has often been greater confusion over its role, it is an understatement to say that we do not see there an institution that can claim a conspicuous record of success. As often as not, people are sent to prison not from any great sense of conviction—pardon the pun—that it is a particularly useful or constructive thing to do, but rather because there does not seem to be anything else to do. Half of young male prisoners are back inside within two years, while a third of the general prison population achieves the same distinction. In 2002, the Social Exclusion Unit estimated that former prisoners were responsible for 1 million recorded crimes each year. One does not have to seek far for the reasons. Around a third of prisoners lose their homes while in prison. Devastating in itself, this also makes the hope of reintegration into the community so much more of a lost cause. Two-thirds lose their jobs and two-fifths lose contact with their families. The outcome is the same. Thus it is absolutely vital that a specific arm of our penal system should be unequivocally concerned with the goals of rehabilitation and reform to offset as far as possible the failure of imprisonment, and that this core purpose should be up in lights on the face of the Bill at its head. When I taught criminology, figures for the comparative success rates of prison and probation were bandied about endlessly and were endlessly subjected to analysis, which was either sophisticated or casuistical and tendentious, depending on your point of view. But I always thought, even allowing for the differential characteristics of the clientele, that there was really no contest. Even if the success rates were no different, and I do not think that is the case—probation onmost measures coming out considerably ahead of imprisonment, as the noble Lord, Lord Waddington, reminded us—probation would win hands down on grounds of cost, disruption and social harm caused. If you can get people into employment, the risk of reoffending is halved. If you can get them a home, it is cut by 20 per cent. Probation is obviously better placed to do this than prison. In parenthesis, I should say that for these reasons the parts of the Bill that promote partnership with community organisations are very much to be welcomed, although it has to be said that much partnership work of this kind takes place already and there is no impediment to more being done without changing the law. Members of the Committee will observe and possibly object to the fact that I have concentrated almost entirely on rehabilitation. That is because I believe that rehabilitation is really the core animating principle at the heart of probation. I accept the other principles mentioned in the amendment and do not wish to quarrel with any of them, except punishment, which I shall come to in a moment. All the same, I wonder whether the amendment has the different principles in the right order. The only way ultimately to ensure the protection of the public, a reduction of reoffending and an awareness of the effects of crime on the victim on the part of its perpetrators is to rehabilitate them effectively. If you put the protection of the public first and despairingly decide that offenders cannot ordinarily be reformed, you move towards an American-style regime of long, fixed jail terms and deterrent-based sentencing. As we have seen, this has not been conspicuously successful, although it has been the UK’s direction of travel for some time now. Such an approach leads to a self-fulfilling prophecy in which the ever fuller jails can make ever less provision for individual prisoners to lay the foundations for life outside prison. The longer they stay, the more uprooted they are when finally released. By contrast, the purposes of probation and all the benefits that it can bring to society, the victims of crime, the criminal justice system and offenders themselves were well summed up in the original duty to advise, assist and befriend. I can give my reasons for supporting the amendment of the noble Lord, Lord Ramsbotham, quite briefly, because most of them are implied in what I have said already. The first is clearly that punishment does not sit comfortably with the rehabilitative role of probation. Too complex a mixture of aims leads to confusion and unclarity of purpose. Furthermore, too great an emphasis on punishment substantively undermines the rehabilitative work of probation, dependent as this crucially is on the development of a positive relationship between probationer and prison officer. I absolutely agree with the noble Lord, Lord Waddington, that it is important for people to see that probation is not a soft option, and I assure the Committee that a challenging relationship with a probation officer is anything but a soft option. The Probation Service certainly believes that strongly. The second point is perhaps even more fundamental. It is true that the proper punishment of offenders is an appropriate and important aim of the criminal justice system, but there are questions about the balance in that system between punishment, restitution, retribution and other aims of criminal justice and how those are institutionally reflected. As I have argued, the Probation Service has a specific function within that system of acting as the principal vehicle through which the rehabilitative aims of the system are transmitted. Probation officers, no more than psychiatrists, are not particularly well placed professionally to say what constitutes the proper punishment for an offence or an offender. The judgment of what a person deserves is far removed from professional advice on the likely impact on an individual offender of one sentence as against another. What is a proper punishment is a matter for the criminal justice system as a whole. It is for the court, not the Probation Service or any other part of the criminal justice system, to arrive at and handthat judgment down. I therefore conclude thatparagraph (c) should not remain in the amendment.