Offender Management Bill

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 ofthe prison and to exclude from them visitors, who arethe 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 theclause 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.