“But the river remains unchanged, sad, refusing rehabilitation.”
‘No More Hiroshimas’
With privatisation proposals for Probation now on the government’s agenda, the campaign to keep the service public is getting into its stride. Amongst the service’s supporters, a great deal of emphasis is being placed on the role Probation plays in the rehabilitation of offenders. Whilst it might come as a surprise to some, these claims are technically unlawful.
To understand this point, we need to appreciate the legislative difference between the public and private sectors. No public service can exist without legislation that explicitly states what that service is empowered to do. When the legislation is in place, what is specified is all that service permitted to do. It is not authorised to do any more than the legislation permits. This is the legal difference between public and private. Private organisations can do pretty much anything provided it is not prohibited by law. It is a small but extremely important difference and I was taught this by the legal section of NALGO (now Unison) during my time as a shop steward.
This becomes relevant because when the Labour government enacted the NOMS legislation, it removed the word ‘rehabilitation’ from Probation’s terms of reference in favour of the term‘offender management’. This means that any rehabilitative work Probation might lay claim to falls outside the purview of the law. Simply put, if those employed by Probation are engaged in providing rehabilitative services to offenders, they are in breach of the legislation and possibly open to the charge of misappropriating public resources. If you doubt this, check it out for yourself. This legislative removal of ‘rehabilitation’ was the executive explanation supplied by one Probation area when dismissing a formal complaint that changes to my supervision were causing significant harm to my rehabilitation. It was made very clear to me – Probation does not ‘do’ rehabilitation anymore. Even if front-line staff aren’t aware of the impact this change has made to their work, their senior managers certainly are. Therefore, until the word rehabilitation is restored to UK legislation governing Probation, any claims of success merely point to the fact that employees are acting beyond their powers, i.e. unlawfully.
This creates an interesting situation. Technically speaking, this means that any offender who has successfully rehabilitated or desisted since NOMS came into existence has done so in spite of the Probation Service and not because of it. At the present time, such a suggestion might not sit comfortably with those proclaiming the service’s rehabilitative successes. Notwithstanding the legal position, these repeated claims also contain a remarkable blind spot in Probation’s view of itself. It is as though the offender ceases to have any involvement in their own improvement – the credit for our success accrues solely to our Probation supervisors. It is hard to put into words how profoundly disrespectful such attitudes are. How dare you exclude me from credits in the very hard work of my own rehabilitation! How very dare you! It explains my personal difficulty in finding any level of support within me for Probation (a problem that does not occur elsewhere with either the equally beleaguered police or prison services, I note.). When all my personal effort is so casually disregarded in favour of a service’s self-importance, I hope my ambivalence might be forgivable, especially when those claims also point to a public service stepping beyond its legislative powers.
Don’t get me wrong. I’ve encountered some very fine people working within Probation and with whom I would gladly share the credit for my rehabilitative successes – if it were lawful for them to have helped me. But it isn’t. Was I to do that – especially in the light of the executive reply I received to my formal complaint – I could be placing them at risk of employment sanctions. That is not how I repay personal kindness. Instead, the service needs to be held accountable for their failure to comply with, or explain the impact of, the change in legislation and its impact on delivering rehabilitation to offenders. Additionally, the government needs to be called to account for blaming Probation for failing to deliver on rehabilitation when, lawfully, the service has no authority to provide it.
No doubt someone somewhere will pick up on this apparently minor but highly significant point of law and challenge it using Human Rights legislation. After all, to legally remove offender access to rehabilitation is inhuman and forms no part of a mentally healthy society. This is an issue Probation must address if they are to avoid the charge of hypocrisy, especially remembering that ignorance of the law is no defence.
In closing and especially for those practitioners who think it’s OK to ignore this legislative change in their own work, it might be worth remembering that thinking the law doesn’t apply to you suggests that you are no better than those you supervise.