House again in Committee.
Clause 14 [Power of detention in contracted out prisons and secure training centres]:
100: Clause 14, page 9, line 13, after first “is” insert “employed”
The noble Viscount said: I apologise for being slightly late for the resumption of the Committee. I shall speak also to Amendment No. 102. Clause 14 gives prison custody officers in contracted-out prisons and secure training centres powers to detain visitors where it seems that the visitor has committed an offence under Sections 39 to 40D of the Prison Act 1952. Both amendments seek to ensure that the new provisions in Part 2 meet adequately the intentions of Clause 14 as a whole. They are probing in nature because, if implemented, they would prevent the detention of any visitor to a prison, which I should like to make clear is not our intention. Rather, they seek to tease out exactlywho will fall under the ambit of Clause 14.
If accepted, the amendments would ensure that only those entering the prison as visitors to those held in custody or those working as employees of the prison would be subject to the new detainment laws. Currently, the Bill is so widely drawn that it would apply to representatives of the voluntary sector as well. The Minister in another place made it clear that the provisions of Clause 13, which was then Clause 11, were targeted at “criminality via visits”. I hope that the Minister will be able to provide further insight into this definition. Can he also confirm whether he expects representatives of the voluntary sector to be included among those who may be stopped, searched and detained for up to two hours? We are keen to ensure that, while the most appropriate security measures are in place, this specific function of the Bill is clarified. I beg to move.
The differences between public sector and private prisons that both this clause and related Clause 13 regarding search powers are intended to resolve relate to practices that are both unnecessary and inefficient. They create different operating practices between the two sectors, which in our view are detrimental to operations and security. Clause 13 gives police custody officers equivalent searching powers to those of prison officers in the public sector because, as the noble Viscount will know, the trafficking of drugs and other contraband is an operational problem that simply does not recognise the difference between public and private prisons. If we are to give PCO staff equivalent powers to detect smuggling activity, we must also give them powers to detain those undertaking it. However, we have specifically acknowledged that, given that we are dealing with employees of private companies rather than the Crown, tight controls should be placed on their powers of detention. For that reason we have not provided PCOs with broad constabulary powers as enjoyed by their public sector counterparts. Further, in the clause we have expressly limited the circumstances in which the power can be used and the maximum period of detention.
Against that background, the amendment is in any event fundamentally flawed, as it seeks to limit the detention powers of a PCO to other employees of the prison and to exclude from them visitors, who are the major source of trafficked items. We need this power to apply to all persons who may be attempting to bring items into the prison, which is why the clause was drafted as it was. It is designed to cover everyone, including visitors and those working in a prison, except the prisoners themselves.
Accepting this amendment would, as I am sure the noble Viscount would acknowledge, send a message to those who seek to smuggle items such as drugs into private prisons that they may attempt to do so at no risk to themselves. If detected, they would simply be able to walk away, with staff powerless to do anything to deal with the problem. That cannot be right. Indeed, it is precisely that result that the clause was intended to prevent.
Finally, and importantly, the amendments would create a disparity between what could be done in the private and public sectors when a criminal offence was suspected, for which there is no sensible justification. In any event, the amendment is flawed not only in purposive terms but in the manner of its drafting. A close reading of the amendment reveals that it excludes from the power to detain many of those “in” a prison by inserting the word “employed” before it, but does not at all deal with those “seeking to enter” such a prison. The latter remain liable to be detained under this amendment. It seems unlikely that this was an intended consequence of the drafting, as it leads to an anomalous outcome.
We will require contractually that staff be trained in how to exercise these new powers. In addition, sensible safeguards will have been put in place with regard to both the period of detention and the circumstances in which the power can be used. The contracts covering private prisons will continue to specify procedures to be followed and will place penalties, including financial penalties, on non-compliance. We also have the controller to monitor the application of the power, and other changes that we are proposing are intended to free up more of the time to undertake such tasks.
The noble Viscount asked whether the power would capture those in the voluntary sector. The measure is aimed at providing a flexible power to ensure that anyone reasonably suspected of an offence under the Prison Act 1952 can be detained. It would be wrong to exclude those visiting on a professional basis, although I anticipate that the power will be used primarily for those making social visits. The power needs to be there in extremis to cover those cases, but its use would have to be proportionate in the circumstances. Having said that, I hope that the noble Viscount will feel able to withdraw his amendment.
101: Clause 14, page 9, line 29, at end insert—
“( ) A prisoner custody officer may not exercise the powers in this section unless he has completed at least one course of appropriate safeguarding training including explicit child safety, protection and welfare provisions.””
The noble Viscount said: This follows on naturally from what the Minister was just saying on the previous amendment. My Amendments Nos. 101 and 103 would add valuable safeguards to the Bill to accompany the new power of detention given to prison officers. Currently, nothing in the Bill attaches specific child safety protection and welfare training in relation to the detention power. Given that a large number of people will be implementing this new power who will not have any experience of holding people in custody, it is vital that they are given the appropriate training in respect of detention, safe handling and the proper management of custody.
The Minister will not have forgotten that we will shortly debate the provisions for a duty of care owed to those held in custody. I do not believe that we need to rehearse those arguments again. The principle has been accepted by the Government that the Prison Service, in whatever form, owes a duty of care to those held in custody. Noble Lords have made it clear that they hope that there will imminently be such provisions in the Corporate Manslaughter and Corporate Homicide Bill. These amendments would be an essential and helpful addition to those providing prison services. I beg to move.
I support the amendment from my own experience of seeing the lack of training among both public and private sector custody officers, which has always caused me considerable concern. In the previous days in Committee, we discussed the training of probation officers and the need for a long—indeed, degree-based—course in their work.
To my mind, the custody officer, who has a very difficult task quite apart from the elements that are mentioned in the amendments, such as child safety, does not get good enough training to do their job, which is increasingly complex. It is small wonder that there are many problems connected with activities such as looking after young people, people with mental health problems or foreign nationals. Those run into problems because the staff are not trained to deal with them. Indeed, I always remember an inspection of a young offender establishment that we had criticised for the appalling way in which children were being mistreated. The staff appealed to me to inspect them because they had not been trained to look after those particular people, and therefore that activity was an unfair burden on them.
The Bill discusses the management of offenders. That management depends on the staff being able to carry out their tasks. If there is not a clear demand in the Bill that sets out the whole raison d’être of that management and reflects the amount of training necessary to qualify people to carry out the tasks on the public’s behalf in these places, the Bill is defective. We should seriously consider whether these amendments should go into it.
I support the amendments. In these clauses, the powers of search and detention are being extended to the contracted- out and privately run YOIs and the STCs, all of which are privately run. That means that custody officers could be in the position of searching a child visitor. The management and the handling of visitors in prison is an extremely sensitive areathat has to be properly and professionally managed. Although the notes to the Bill will be exercised in line with the relevant prison and YOI rules, there is no explicit reference to child safety, protection and welfare safeguards. This is a real and serious concern, so we support the amendments.
I support Amendments Nos. 101 and 103. It is of paramount importance that any custody officer is adequately trained to a high standard, especially when they are dealing with young people. I am sure that the Minister will tell the Committee that the Government support a high standard, and obviously I am pleased about that, but I hope that he will forgive me for being a little sceptical and for wanting to see this safely written into the Bill—if for no other reason than the fact that what happens today may not always happen tomorrow. The amendments would ensure that such standards did not slip and would remind those who run private prisons that some of the public, including politicians, will keep their eye on how they run those prisons, not only now but in the future.
I apologise that I was slightly late coming into the Chamber. I support the amendments, because I was a member of a board of visitors at a prison in the old days and have worked for the Police Complaints Authority. As the noble Lord, Lord Ramsbotham, said, we expect custody officers to perform a very difficult task. The largest number of complaints that I used to receive at the PCA concerned custody officers. They have a very delicate task. It is not disputed that training and, to an extent, the method of recruitment of custody officers would help to resolve this problem, but we are trying, in the interests of children, to put into the Bill an amendment that would be a safeguard. I do not think that any person in their right mind could refuse to accept it. I hope that the Minister will consider seriously what he can come up with so that the interests of children are protected.
I, too, apologise for not being here at the outset; I was at a meeting of the Joint Committee on Human Rights.
This is not a theoretical issue. There has been all too much evidence in recent years of things going wrong with children in our custodial system. Therefore, it seems crucial not just to anguish about what has happened in the past but to put in the Bill measures to ensure that these things will not happen in the future. Whatever our feelings about wrongdoing and crime, the moment of initial custody may for many youngsters be the most traumatic moment of all. It therefore seems particularly important that the people handling that stage understand everything that is involved for the young person, psychologically as well as physically.
I, too, apologise for not being here when the amendment was moved. The noble Baroness may have referred to the five-day juvenile awareness staff programme introduced to prepare custody officers to work with children. It is a step forward—a very small one, given that the programme lasts only five days—but I would be grateful to hear how far it has been rolled out. Can we expect every custody officer working with children to have gone through the JASP course?
In Norway, prison officers have a two-year course of training. First, they simply have a responsibility as a turnkey and in their second year they go to correction college, or whatever it is called. They have access to a dummy prison and are encouraged to travel, perhaps coming to England to see what we do here. They are obliged to undertake a period of community service so that they learn about the sort of clients with whom they are dealing. I suggest that that is what we should aim for when we are talking about reform of these services for adults and especially children. It troubles me that we do not yet have really good supervision for custody officers, and I hope that that will improve. One hears on visits to these settings that the younger the offender, the more difficult they are to manage and the more expertise is required to do it well. I hope that the Minister can provide some reassurance. I strongly support the amendments.
I fully recognise that the basis of the amendments, tabled by the noble Viscount, Lord Bridgeman, the noble Baroness, Lady Anelay, my noble friend Lord Judd and the noble Lord, Lord Ramsbotham, is a concern to ensure, quite properly, that staff are competent to do their jobs and that we have the right safeguards to ensure that security and decent treatment of prisoners are not compromised. I especially understand the concerns about those detained in youth custody and secure training centres. The Committee will not be surprised to know that I share many of those concerns and that the Government are utterly committed to the maintenance of high standards of service delivery because we recognise that that is the only way to achieve the results on which there is a comity of view.
Including this area in the Bill and specifying requirements on training was the subject of much attention in another place. My understanding is that similar amendments were moved there but rejected. It is still our view that including such a requirement is unnecessary in the light of safeguards in the clause and elsewhere. Differences between public and private sector prisons are unnecessary and inefficient, as well as detrimental to operations and security. We do, however, recognise the very genuine concerns raised by these two amendments and are completely committed to ensuring that the treatment of children and vulnerable adults is to a high standard. The changes we are making in Clause 14 mean that private prison staff—PCOs—are more likely to detect items being illicitly brought into private prisons. We therefore need to give them effective powers to detain suspected offenders until the police can arrive to arrest the individual in the same way as prison officers operate in the public sector, because they have constabulary powers.
We resist these amendments not because their objective is wrong but because the restrictions they would put in place duplicate existing practice. Additionally, any greater detail that might be thought necessary for the clarification of certain obligations can better be achieved through the contractual process. We must not forget that many safeguards already exist to ensure proper treatment of all visitors. First, PCO staff are required to be properly trained in all aspects of their job, and the quality of their training is open to inspection by the controller, who also approves the content of their training course—so there is already that independent view. The course includes sessions on correct searching techniques and child protection. Passing the course is a condition of employment as a PCO. Secondly, PCOs are subject to certification systems, to ensure they are competent and suitable, by the PCO Certification Unit, which is a public sector body. In addition, private providers are required to comply with the National Security Framework (NSF) covering both public and private prisons, which details the precise techniques that must be followed when searching children and vulnerable adults. We believe that these training measures will be sufficient, when they have been adapted to take account of the new power, to ensure that detention under the new power is carried out in an appropriate and lawful manner.
In our view, the above measures, which have been in place since PCOs first started to discharge their duties, achieve the aims of the amendments. Consequently, it is difficult to see what the amendments usefully add in the absence of any concern that current training levels are inadequate for their purpose.
In addition to the above, the controller plus Independent Monitoring Board members at the prison can witness at first hand that the correct techniques identified in the NSF are being rigorously applied. Failure to comply can be punished via existing contractual mechanisms, including the application of financial penalties on the company running the prison.
I am also concerned that the amendments would not apply equally to the public and private sectors. There is no similar requirement for prison officers to be trained in this way, yet they would be employing exactly the same techniques—and they operate around 85 per cent of the prisons in England and Wales. It is wrong to label private prison employees as in some way less competent than their public sector counterparts, when we know that there is good and poor practice in both sectors. Martin Narey has said that it would not have been possible to achieve the decency agenda in prisons had it not been for the involvement of the private sector.
To the extent that it might be said that private contractors need to be made more aware of the details of their obligations—for example, with regard to conducting searches of, and detaining, children—we believe that a fair solution, which achieves precisely the outcome sought in the amendment, is to commit to ensuring that appropriate training in all aspects of the work and compliance with the NSF remain contractual requirements. Failure to provide properly trained staff or to adhere to approved searching techniques will be punished via existing contractual mechanisms, which include financial penalties. The controller will be able to oversee compliance as necessary. This means we can ensure that private prison staff are operating to the same standards as those in the public sector and that children are protected as they need to be, but also allows us the flexibility to respond to changes in training needs in the future without having to have recourse to primary legislation, which in this instance would be a clumsy way of tackling something that we all agree is important.
The noble Earl, Lord Listowel, asked how far the five-day training had been rolled out. I would like to answer him today but cannot. However, I will endeavour to write to him on that important background information.
It is important that one essential matter is carefully considered in this debate: the clause itself deals with a very short period of detention on suspicion of crime. I understand the valid concerns raised today but they relate to those detained in custody. This clause, of course, deals with visitors, not prisoners.
I have a question of clarification. The Minister said that the amendment was unnecessary because the private sector was trained to the same standard as the public sector, but before that he said that the public sector was not trained. Surely that is the purpose of the amendment.
I said that there was no similar requirement for prison officers to be trained in this way. I was not making the point, as the noble Lord seemed to imply, that there was no training for prison officers in the public sector. My concern is that there needs to be equal treatment across both sectors. The overriding desire, which we all have, is to raise standards and to ensure that the proper and appropriate training is in place so that standards across both the private sector and the public sector continue to rise. The noble Lord has previously made the point that some of the best practice from the private sector has had the beneficial effect of working to improve standards in the public sector. In some ways, that is the benefit that we are trying to achieve in part here. However, this amendment would be a rigid and constraining way of trying to achieve an objective that we all share: to raise standards across the public and private sectors.
I am still quite confused. Like the noble Lord, Lord Ramsbotham, I thought my noble friend said that those who work in state prisons do not have to meet the requirements in the amendment, although we all want to raise the standard of training, and that the training for those working in state prisons is currently not really good enough. If that is not what he said, perhaps he will clarify it. I am sure that the amendment is trying to raise the standard in private prisons to the level in public prisons. If the standard in public prisons is not good enough, perhaps we should table an amendment on Report to bring it up to the level in private prisons. I am a little worried about the whole question of adequate training. If we put anyone in charge of anyone else, be it in the private or public sector, that person must have adequate training—the best training that we as a country can give them—not only for their own sake but for the sake of those whom they look after.
Before the Minister responds, I thank him for attending to my question and kindly offering to write to me. It may be helpful if I draw attention to an experience I had when visiting a prison for adults. I spoke with a senior wing manager who had a specialism in drugs training. He told me that, unfortunately, as he was working in a private prison he had not had time to train people in this specialism of drugs. There seems to be a widespread problem that it is harder to release custody officers in private prisons to get the training they need than it is to release officers in public sector prisons. One can understand the commercial reasons for that. I should say that some of the private prisons for children I have visited have put great emphasis on training. However, given the commercial pressures that the private sector is under there might be a danger that this sort of thing might slip.
Recently, I tabled a Written Question to the noble Baroness, Lady Scotland of Asthal, about supervision for officers in an immigration detention centre. She answered that she could give no response to my particular question about supervision of custody officers in that centre because that was done within the setting and the Government only checked for the outcomes. In some ways that might seem satisfactory, but to my mind it is crucial when working with vulnerable children and families that officers have that supervision, so it is very disappointing to learn that it is not possible in that case. My worry is that this could slip by and vulnerable children could be put in an unacceptable position.
When visiting a prison with the Joint Committee on Human Rights, I asked a quite senior prison officer what issue he would like me to go away regarding as the most important as far as he and his work were concerned. Without hesitation he said training. He was a very dedicated officer; that was clear. He was committed to success in the whole operation, not just being part of a warehousing system but achieving a positive outcome with prisoners. He recognised that training was indispensable to achieve that. If we take seriously positive outcomes from the prison experience, it is simply not acceptable at any point in the story to have crucial responsibility carried by people who are not properly qualified.
I say to my noble friend that I believe the Committee is seeking an assurance not only that in principle the Government agree about this, because it is clear that in principle they do, but that they will make it absolutely clear in the Bill that that must happen.
Perhaps I can also ask for a little clarity. As I understand it, these two amendments relate not only to children detained in custody but to children who visit prisons. This is relevant to the powers to detain and search visitors and their families. What is important about this is that it is a very sensitive area; it is also the point at which prison staff, be they in private or public sector prisons, interface with the public. How they manage their visitors is vital not only to public perceptions of the quality of the service but also to the nature of the visit itself, which is one of the most important parts of a prison day. We must be absolutely clear. The wider subject of the training of prison staff with children who are detained in custody—be it for a long or short time—is a much larger and more significant question; this one is fairly narrow.
The noble Baroness has helpfully brought us back to the point, and I am grateful to her for doing so. She is right that we are talking about a narrow focus. I want to clear up the issue of training, because I thought I had been clear—perhaps I was not—and I want to make sure that the record is clear. The training is the same, and it is adequate in both the private and public sectors. I was talking more generally about our shared desire in your Lordships’ House to see standards rise at all times. It would be unduly restrictive to apply a legislative safeguard in the private sector that does not apply in the public sector; we need to have a level playing field. Perhaps because of its narrow focus, the amendment would achieve undue rigidity.
We are at one in the Committee on the desire to raise standards and to ensure that safeguards are properly in place, whether a prison is operating in the public or private sector. I hope that with that clarification we can move on, because I have answered the core points. I hope that the amendment will be withdrawn and that the noble Viscount will feel able to reflect on what others have said in this debate and on what I have said in setting out how we see this working.
I am most grateful to noble Lords for their support for the amendment. I am sorry that earlier I did not thank the noble Lords, Lord Ramsbotham and Lord Judd, for their support. This is an unequivocal ideal for which we should aim, and it is much better put into the Bill than left to what the noble Lord called the contracting process. Nevertheless, it would help the Committee if he would write to us about the standards of training in place for prison officers and for those in the private sector.
I am most grateful. We attach a great deal of importance to the subject, and we will read very carefully what the Minister said today and says in his written reply. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 102 and 103 not moved.]
Clause 14 agreed to.
Clause 15 [Powers of authorised persons to perform custodial duties and search prisoners]:
104: Clause 15, page 10, line 33, at end insert—
“( ) The restricted activity that may be the subject of authorisation under subsection (3) may include in particular—
(a) the control of entry to, and exit from, the prison by visitors; and(b) the staffing of prison control rooms.”
The noble Viscount said: Amendment No. 104 is in my name and that of my noble friend Lady Anelay. Clause 15 marks a radical departure from the Criminal Justice Act 1991, which enabled the contracting out of private prisons while providing an important safeguard requiring certain functions to be performed only by directly accountable public servants. The powers were adjudication, judgment of prisoners charged with offences under prison rules, segregation, cellular confinement and the application of mechanical constraints such as body belts. Clause 15 would transfer those powers to the employees of a private company delivering a contract at a contracted-out prison, potentially removing the direct line of public accountability from the PCO to a controller based in the new Ministry of Justice.
I am introducing the amendment and this line of argument regardless of any debate to do with the ethics of providing prison services through the private sector. Safeguarding and accountability in prisons are inextricable from the protection of the public and the accurate deployment of the duty of care that the Government owe to those whom they hold in custody. Clause 15 enables the Secretary of State to stipulate by order certain restricted activities that, by default, would be carried out by a prisoner custody officer or a prison officer temporarily attached to the prison, but that could be carried out by workers at a contracted-out prison with the authorisation of the director of the prison. The amendment would ensure that the Secretary of State included in the list of restricted activities those that are most essential to the preservation of safety and order in a prison—namely, the control of entry and exit of visitors and the staffing of prison control rooms.
I do not wish to undermine the capabilities of staff in the private prison sector. That is not what this amendment is about. It is about maintaining the safeguard of public accountability in a service where, at each legislative turn, the Government seem to seek to abdicate responsibility. In the debates on the Criminal Justice Act 1991 before it was introduced, the then Minister—now my noble friend Lord Waddington—stated that private prisons would have assigned to them,
“a Government-appointed controller, who, rather than the private sector director of the establishment, would conduct disciplinary hearings, authorise a prisoner's removal from association, his confinement in a special cell, or the application to him of any other special control or restraint”.—[Official Report, Commons, 20/11/90; col. 151.]
Yet this Government have seen fit to downgrade that function, as the Minister in another place rather glibly confirmed. He said:
“Although we accept that the current restrictions made sense when private prisons were first introduced, they appear to be increasingly unnecessary”.—[Official Report, Commons, 28/2/07; col. 1015.]
The majority of private prisons perform well. Indeed, I would not want to overlook the fact that since they were introduced, private prisons have inspired far greater performance across the whole prison estate. I do not deny that and I congratulate them on their work. However, in this instance, we must focus on the minimum standard of performance expected and the safeguarding of that through public accountability. An analysis of the lowest performing private prisons is necessary.
The need for the amendment is even more pressing following the most recent report of the Chief Inspector of Prisons. I am afraid that the prognosis on the private prison estate was not as good as we might hope. I am grateful for the assistance of the Prison Reform Trust regarding this report. On Forest Bank, the chief inspector noted:
“There had been 2,500 adjudications for offences against prison discipline in six months; drugs were rife, with a 40% rate of positive mandatory drug tests in the most recent month; prisoner assaults on other prisoners were running at 25 a month; and there were examples of assaults on, and routine intimidation of, staff. Staff turnover was high, and many lacked the experience and confidence to challenge inappropriate behaviour”.
That again relates to the training problem. The most recent report on Rye Hill stressed,
“the inexperienced and poorly supported staff group, 30% of whom had been in post less than 6 months”.
The report on Dovegate talked of,
“stretched and inexperienced staff struggling to maintain control”,
“worrying examples of searches not being conducted properly and of inappropriate use of force”.
The complaint of the noble Lord, Lord Judd, about training runs right through those reports. As it stands, the delegation of responsibility on custodial tasks is too great a risk to take for that part of the private prison estate.
I hope that the Minister will consider accepting the amendment; indeed, I fervently hope that when it is accepted, it will be implemented in the context of the Government owing a legal duty of care to those held in custody. It would surely be the greatest safeguard that we could hope for.
In the mean time, I urge the Minister to consider the full implications of separating the link between crucial custodial tasks and public accountability. It has been said previously that a Government who have nothing to be ashamed of have nothing to hide. I hope that the Minister will look on this as an opportunity to make a positive concession that demonstrates the Government’s faith in the private prison system. I beg to move.
Although it was a long time ago, in 1990 I think we envisaged that, barring a disaster, confidence in private prisons would grow with the years and the restrictions on the activities that could be carried out by workers in private prisons without special authorisation would gradually disappear. This amendment is useful because it gives the Minister the opportunity to justify the plan to allow authorisation of activities that are at present restricted. My noble friend referred to the words of the Minister in the other place, who said:
“Although we accept that the current restrictions made sense when private prisons were first introduced, they appear to be increasingly unnecessary”.—[Official Report, Commons, 28/2/07; col. 1015.]
However, the Minister did not begin to explain why he thought that the restrictions were now unnecessary. Is it because private prisons are better run than they were 10 years ago? Is it because there is less indiscipline? That does not seem to square with the inspector’s report on Forest Bank. My noble friend quoted from that report and those on Rye Hill and Dovegate. We should be constructive and not just imagine difficulties to justify the maintenance of restrictions. I am certainly not here to make difficulties of that sort. We need some help from the Minister to be convinced that the time has come for a major step forward. There was not the beginning of an explanation in the other place so it would be appropriate if there was a full explanation now.
I am interested in this amendment; a later amendment in the name of the noble Baroness, Lady Gibson, which has now been withdrawn from the Marshalled List, was about the adjudications that are carried out by directors of private sector prisons. That matter causes considerable concern to the Prison Governors Association in particular. When the private sector prisons started, the post of controller was put there as well, as I understand it—the noble Lord, Lord Waddington, will know better than me—to be the monitor of the contract. That is a very important role. One of the things that I found disturbing in the recent reports by the chief inspector was the suggestion that there are attempts to work around the contract and not to honour it in total. If there was not a contract monitor there to see it, there might be even more such attempts, which would reduce the effectiveness of the whole custodial operation.
As well as the suggestion that adjudications could now be carried out by the director on the grounds that directors have proved themselves just as capable of running an establishment as the governor of a private sector prison, I understand that it has been suggested that one of the two monitors or controllers could now be removed, which would be a cost-cutting exercise. That would be enormously unwise because the duties of monitoring a prison, particularly as they become more and more complex, with more and more contracts to be monitored, are more than a full-time occupation. I have talked to some of the contractors, who are deeply concerned about this. Looking at this amendment and the whole way in which the private sector prisons are conducted, it is important that the issue of monitoring the contract by people who are there is looked at very seriously so that we—the public—can be confident that those prisons are really being conducted in the way in which we would expect them to be. That is why we have our—the public’s—monitor there on our behalf.
I thank the Prison Officers Association for briefing me on the amendment. The Bill is silent about which restricted activities the Home Secretary plans to allow non-prison custody officers to perform. I understand that that will be revealed only when the Home Secretary publishes the order, which will be subject to negative procedure in relation to which restricted activities a worker may be authorised to carry out. Once the order has been passed, it will be for the director of the private prison to instruct non-prison custody officer staff to carry out some, if not most, of the currently restricted activities. Amendment No. 104 is, I believe, an attempt to clarify at least some of the restricted activity areas that may be the subject of any such authorisation and place them in the Bill. As such, I support it.
I know from experience in England and Northern Ireland that the way in which a prison handles its visitors is crucial to its reputation. Furthermore, the prison rules state very clearly that everything possible must be done to maintain the relationship between the prisoner and his immediate next of kin and family. On those grounds, I support Amendment No. 104 and shall also support Amendment No. 105 when we come to it.
I support the amendment and thank the Prison Governors Association for its briefing. I reiterate the point that I made on the previous occasion: many visitors will be the kith and kin of people who are inside prison. As such, they are likely to be fairly vulnerable and may react in inappropriate ways to certain methods of restraint.
Before I get into the body of Clause 15, it may be worth saying a few words on another matter. I think that, inadvertently, the noble Viscount, Lord Bridgeman, sowed seeds of potential confusion in addressing issues which would have been more properly bound up in a debate that we probably will not now have on Clause 16, which relates to the removal of controllers and adjudications and so on—at least, that was the perception. We should focus on that because it will help us in terms of the order of debate, although I was grateful for the intervention of the noble Lord, Lord Ramsbotham, and shall say something about the work of the controller.
It is important to dispel the notion that we are somehow removing existing restrictions. In my view, we are simply removing a confusion that arises from the 1991 Act. This does not really have anything to do with the responsibility of controllers. As I said, Clause 16 deals with that, and, as we know, there are no amendments before us on that issue.
Before I get into the content of Clause 15 and the related amendments, I should also say something about recent reports on private prisons by HM Inspector of Prisons, because that was raised during this short debate. I cannot accept the assertion that somehow the private sector is going backwards. The perception is that private prisons have worked well and that there is improvement in that sector, as there is in public sector prisons. I do not pretend that there are no problems in either sector, as clearly reports indicate that from time to time there are, and those problems have to be properly dealt with. Here, we are seeking to address the difficulties of dealing with drugs, mobile phones and other illicit items that come into prisons. We must focus on adopting packages of measures to ensure continuous improvement across both sectors. However, I am grateful for noble Lords’ comments on those reports because they relate to important and significant issues.
Perhaps I may bring us back to Clause 15. The changes that we are making in relation to private prisons in general, and specifically in this clause to the range of tasks that can be undertaken by non-PCO grades, are intended to resolve what we see as unnecessary and inefficient differences between the public and private sectors. We are trying to create parity in terms of operational flexibility and staff deployment between equivalent staff grades in both sectors. Neither side will have greater power than the other. The way in which staff need to be deployed is constantly evolving in response to changing operational demands. Issues apply equally regardless of whether the prison is publicly or privately operated.
The public sector already employs operational support grades—OSGs—to work alongside prison officers. These OSGs perform a limited range of custodial duties in support of the prison officers. The equivalent of an OSG in a private prison is an auxiliary officer or AO. Owing to restrictions in the Criminal Justice Act 1991, the only people who can perform custodial duties in a private prison are PCO grades. The absence of a clear definition of a custodial duty in that original Act has created unhelpful confusion over what operational duties non-PCO staff can undertake. This position becomes potentially ever more unclear as the public sector, which is free of any restrictions imposed by legislation, makes ever greater use of OSGs to support prison officers in their custodial work. We wish to remove the disparity between how equivalent grade staff are deployed across the two sectors. This will resolve unhelpful procedural differences and remove the commercial advantage held by HM Prison Service as an OSG is paid less to do the same work. I stress that we are not looking to give a non-PCO any power beyond those already held by their public sector counterparts.
The amendment addresses an issue quite properly raised by the Delegated Powers and Regulatory Reform Committee in its recent report on the Bill. At first glance I willingly concede that this amendment appears helpful, as it would place on the face of the legislation a clear indication of the sorts of work we are proposing to allow non-PCO staff to undertake. The tasks listed may well form part of our initial list of duties to be permitted. On closer inspection, however, the amendment is unnecessary and unhelpful. New subsection (2) in Clause 15(2) already provides an order-making power to allow the Secretary of State to list tasks that may be performed. We contend that there is nothing in that power that prevents the listing of the tasks covered by the amendment, so it is far from obvious why the amendment might be thought necessary.
If the purpose of the amendment is to seek clarification of our intentions, we are happy to confirm that the tasks that staff are likely to perform are similar to the sorts of activity specified in the amendment. During the drafting of the clause, great care was taken to ensure that our approach struck the correct balance between the need to ensure proper public accountability—an issue that has been raised by noble Lords opposite—and necessary operational flexibility, which is something that we all recognise. By specifying types of work in primary legislation, we will risk destroying the very flexibility that this power is created to provide.
First, we need the private sector to be able to deploy its staff in the same way as equivalent grades in the public sector. No doubt that was in the mind of the noble Lord, Lord Waddington, way back in the early 1990s. No such restriction applies to Her Majesty’s Prison Service, so it can continue to deploy in innovative ways which the private sector would not be able to match. I cannot see the sense in that.
Secondly, we need to future-proof the legislation. Although we may currently want to allow non-PCO grades to do both the tasks listed in the amendment, we cannot be sure that this would always be the case. Including these tasks but not others rather begs the question why we do not list other tasks that we currently envisage being included in an initial list of activity. There is no obvious answer to that question if we retain the reference to some tasks in primary legislation but not others. In that regard, mentioning specific tasks on the face of primary legislation begins to have the appearance of effectively listing them in that legislation, which is directly contrary to the desired approach. If operational requirements change and we wished to place greater emphasis on other tasks, or less emphasis on the specific tasks of entry control and control rooms, it would be much easier to add or remove this emphasis via an order-making power subject to negative procedure than it would be to have to amend primary legislation to do so.
We need to be cautious of an approach that does not clearly define what the task would allow, as that leaves matters subject to interpretation by contractors themselves, which could be unhelpful and would be contrary to the apparent intention of the amendment. In this case, for example, the amendment would specifically permit non-PCO staff to allow visitors into and out of the prison but not staff, which neither makes sense nor matches what OSG grades are already doing in public prisons.
We believe that we have built in appropriate safeguards on the sort of work that can be done by non-PCO staff by virtue of the order-making power we have proposed, and that that satisfies the need for accountability as well as the necessary balance with operational flexibility. Additional safeguards at establishment level exist in the form of a requirement that the director authorises the person to do the work after satisfying himself that the individual is competent and—to pick up the important issue of training, which many noble Lords have referred to—adequately trained to carry out those tasks. Also, the controller has to be able to observe operations to ensure that no unauthorised tasks are undertaken.
I apologise for taking so long to go through this, but I wanted to ensure that the Committee fully understood exactly what was being put forward in the amendments and the difficulties with creating a legislative straitjacket in terms of fixing on non-PCO staff constraints, which does not make a lot of sense. If we did it in the Police Service where we have police community support officers, I am sure that noble Lords opposite would challenge us and say that we were over-regulating. We do not need it in the Prison Service; I do not think it will work.
Can the Minister clarify paragraph 29 of the report of the Delegated Powers and Regulatory Reform Committee, which says in large print that,
“we consider that it would be desirable for the power to be explicitly limited in this way”?
Is that compatible with what the Minister has just said?
I am grateful if the amendment has had the unexpected effect of causing Clause 16 to be debated. We shall look carefully at the Minister’s reply to this very involved debate, and in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
105: Clause 15, page 10, line 37, at end insert “and has the appropriate training to do so”
The noble Viscount said: This amendment, too, seeks to improve Clause 15. It turns the focus on to subsection (2) and would implement a further safeguard to ensure that any worker in a contracted-out prison carrying out a restricted activity had the correct training. It seems highly surprising that currently there is no requirement on the face of the Bill for appropriate levels of training to be undertaken prior to executing custodial functions.
I am sure that I do not need to remind noble Lords of the figures for the worst-case scenario in a prison—where a prisoner dies while in custody. I do not wish to make a judgmental comment on the case of Adam Rickwood, who committed suicide a number of hours after he was subjected to a restraint technique. Although the use of that technique might be acceptable, what gives cause for concern is that it was clear that he was suffering from mental problems. I note that an Oral Question has been tabled on this matter for tomorrow, so the matter might come up. That was just one of the 2,000 deaths in custody between 1995 and 2005.
These examples highlight to us the overall risks in the prison estate, which is full of a set of extraordinarily challenging individuals who often pose the greatest harm to themselves. I would not claim that even the most perfect training would prevent such incidents, because there are too many variables in the system. However, where we can establish safeguards and ensure high standards of practice, it is clear that we should do so. That is why this amendment is so important—if not the wording, then the principle—and why I sincerely hope that the Minister will be able to accept it. I beg to move.
I recognise the background of and basis for this amendment tabled by the noble Lords opposite. I share their concerns to ensure that staff are competent to do their jobs. I reiterate that not only do I share those concerns but the Government are completely committed to the maintenance of the highest standards of delivery, because that is the only way in which we can achieve the outcome that we all wish.
Similar amendments were proposed in another place but were rejected, as it was accepted that placing training requirements in the Bill is unnecessary in the light of safeguards already contained within and outside the clause. It is important to remember that no such formal requirements on training apply to equivalent public sector staff performing the same duties, which is the issue that we rehearsed earlier, and that none of the powers proposed is different from those exercised by equivalent public sector staff. Even if we ignore those factors, we contend that the successful track record of private companies in delivering custodial services already offers assurance that they can be relied on to use competent and properly trained staff.
The private sector is no different from the public sector in seeking to ensure that it benefits from a trained and competent workforce. All private prison contractors require any newly appointed staff to undertake training prior to commencing their duties. That also applies in the public sector. Training may vary between contractors, but the goal is the same: a workforce with the necessary skills to deliver the contract. Before being able to do any of the tasks that Parliament will have had the opportunity to determine, a non-PCO grade would have to be authorised by the prison director to be a competent person to do so, and one of the key tests that a director would employ would be to satisfy himself that the person was suitably trained. In private prisons, unlike in the public sector, the contract enables financial penalties to be levied for operational failures, which is a powerful incentive for directors to use only staff with the necessary skills and training. It is also worth remembering that the controller can examine training packages, attend sessions and observe outcomes first hand.
The amendment is also vague because it gives no definition of what “appropriate” means in this context, nor does it make clear who would make that assessment. In reality, such considerations are clearly already being undertaken by the director as the clause is drafted.
I hope that, having heard my response, the noble Viscount will feel able to withdraw the amendment.