Can Transforming Rehabilitation be fixed?

The key issues identified by the Justice Committee in its inquiry into the part-privatisation of probation.

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Structural problems

There’s a consensus on why the Government’s privatisation of the probation service failed:

The reform was rushed through; the pilots were abandoned and there was no evidence base on which to base the new structure.
The split of the service into two parts dealing with high risk (Natonal Probation Service) and medium/low risk (21 new private Community Rehabilitation Companies) offenders created a needlessly fragmented service.
The reform was driven by ideology.
The MoJ cut costs too drastically and encouraged bidders to win on the basis of price.
Last minute changes in procurement largely excluded voluntary sector organisations with experience of working with offenders.

However, there’s no similar level of agreement on how to fix it. The legal basis of TR makes it difficult to simply tear up the contracts (although the MoJ is reportedly trying to re-negotiate with the CRCs at the moment) and re-nationalisation does not appear to have political support with neither the Government nor the Labour party in its 2017 general election manifesto apparently willing to consider it.

The Justice Select Committee produced a damning report on TR last week (22 June 2018) in which it requested the MoJ to review the current system and come up with alternative models by February 2019.

This post identifies three of the key issues the Justice Committee identified as needing urgent attention.

Fixed costs

The Committee is (rightly) extremely frustrated by the MoJ’s inability to calculate the likely costs of delivering a CRC. The contracts were designed on the basis that 20% of CRC costs were fixed, 70% were semi-variable and 10% were variable. In February 2016 the Ministry initiated a Probation Service Review, primarily focusing on the payment mechanism within the contracts. The National Audit Office (NAO) carried out an investigation into the changes announced in July 2017 on the CRC contracts and found that fixed costs for CRCs varied “from 44% to
99.8%”. This led the MoJ to change the fixed cost assumption to 77% in July 2017 adding an extra £342million to the cost of the TR contracts.

No-one seems to have been able to come up with a clear reason why the MoJ was so bad at predicting the likely split of work between the NPS and CRCs and why it did not take the downwards trend in community orders (now exacerbated by TR’s failings) into account.

Most (but not all) providers are forecast to make a loss over the life of the contracts. If the MoJ wants to re-tender, it is not clear how it will attract sufficient bidders.

Payment by results

Counter-intuitively, most providers have received payment for reducing reoffending in their CRC areas, despite a clear indication from HMI Probation that most areas were performing poorly. The Justice Committee report sheds light on this. Even though CRCs did not start delivering probation services until February 2015, the baseline for reoffending measurement was set at four years earlier, 2011. Between 2011 and 2015, two trends can be seen in reoffending rates:

The binary rate (whether people reoffend) was falling.
The frequency rate (the average number of reoffences committed by people who do reoffend) was rising.

These trends seem to explain why most CRC providers are receiving payments for reducing the binary rate of reoffending but not receiving them (and in some cases being penalised) for not reducing the frequency rate of reoffending.

New contracts will require at the very least more careful attention to baselines but also a more fundamental analysis of whether the quality of probation work is directly linked to reoffending. It seems entirely likely that local reoffending is more closely linked to police activity, especially in times of austerity and staffing cuts.

Accountability

Accountability for probation has become both complex and expensive since the TR reforms. Oversight of the NPS and the 21 CRCs require different systems and the contract management of CRCs has proved to be both expensive and counter-productive – encouraging providers to meet administrative targets rather than improving the quality of supervision and support to offenders.

Local stakeholders now have to develop working relationships with two different organisations locally and there is confusion over the role of Police and Crime Commissioners who are increasingly responsible for the delivery of the criminal justice system as a whole in their areas but have little say and no way of providing leadership for local probation services.

Conclusion

It is not clear what the future of probation will be. The MoJ has been working hard on a new system, although progress has been disrupted by frequent changes in Justice Secretary, rumours suggest that very few of these fundamental nettles have been grasped in the next version of probation.

Personally, I would like to see the MoJ respond to the Justice Committee’s challenge and come up with fully-worked out alternative models rather than trying to tinker with a broken system.

For one alternative model, why not check out this blog from Frances Crook of the Howard League.