Offender Management Bill

I say straightaway to the noble Baronesses, Lady Howe and Lady Linklater, that we are confident that Articles 5 and 8 of the ECHR are not being breached. The requirement in Wainwright is that there be clear procedures and proper training. We are happy that we have in place precisely such procedures; we are not worried about that. The noble Viscount, Lord Bridgeman, asked an important question in relation to the amendment moved by the noble Baroness, Lady Linklater, about undue burden on workers and the prisons estate. We think that such burden would be the precise impact of the amendment, although I am sure that that is not what the noble Baroness intends. My noble friend Lord Bassam dealt in detail with some of these matters yesterday, so I shall try to deal with them as quickly as I can. However, before doing so, perhaps I may say how disappointed I was at the noble Baroness’s remarks about the perception of the probation services, because it flies in the face of reality when one bears in mind the Government’s investment in, and concentration on, training, expertise and excellence. The noble Baroness, Lady Linklater, mentioned searching. One of the tragedies the system regrettably faces is that some very alarming items have been found on the person, sometimes the intimate person, of visitors. That creates a real challenge for all of us. However, I recognise the purpose of the noble Baroness’s amendment; it tries to ensure that the quality of staff is sufficient and that operations are undertaken correctly. I hope that I have already made it clear that I share those concerns, but I am glad of this opportunity to remind the Committee of the safeguards that we have in place to ensure that this is the case. As Members of the Committee indicated, this issue was discussed at some length in Committee in another place, but the opportunity to restate the Government’s position is none the less welcome. The proposed amendment would require the Secretary of State to set unnecessary qualification requirements for non-PCO staff before they could be authorised to perform a custodial duty. Before I explain why the amendment is unnecessary I would like to make clear what this clause is intended to achieve. Its aim is to reduce unduly restrictive limitations placed on those working in the private sector while ensuring that appropriate safeguards are maintained. I would be happy to write to the noble Earl, Lord Listowel, about those details and circulate them to other Members of the Committee because the detail is often reassuring and helpful. Accepting the amendment would not only perpetuate existing unwarranted differences in operational practice between the public and private sectors but introduce an extra difference. We assume that it was intended that only those meeting the requirements set out in an SI would carry out duties listed under the power given by the clause. The amendment achieves that result, but it also goes considerably wider: its wording would mean that every worker in a privately run prison would be required to meet those qualification requirements. Every such worker, irrespective of whether they were ever likely to have any contact with a prisoner, would be required to meet standards identified and described in secondary legislation. That is unnecessary and disproportionate. Moreover, it would deprive those running private prisons of the operational flexibility which is vital for the effective management of a significant part of the prison estate. Consequently, the amendment would undermine the very purpose of this clause, which is to deregulate an aspect of the private sector with appropriate safeguards—the emphasis must be on ““with appropriate safeguards””—not to impose additional and weighty burdens on it. There are other, equally good reasons for resisting this amendment, even had it been drafted to achieve the intention which we assume those drafting it had in mind. As I stated previously, the Government explained in another place why we believe that, although on the face of it a requirement that the Secretary of State make non-PCO grades who seek to perform custodial duties subject to qualification requirements may appear to offer assurance, in reality that would not be the case. As we stated then, no such restriction exists for the public sector. There is a 14-year record of quality delivery in private prisons; the staff performing those duties will not be doing so all the time—they will simply be part of their job, as is the case for OSG in the public sector. Finally there is no justification for the significant additional bureaucracy that the amendment would require. In addition, the clause already limits the range of custodial duties that a non-PCO grade will be able to perform and submits those tasks to parliamentary scrutiny. The Secretary of State will have to specify in an order subject to the negative procedure the activities that a worker may be authorised to carry out, and we have explicitly excluded the use of force from this list. Furthermore, an individual non-PCO has to be separately authorised at establishment level to carry out any task listed in such an order. Such an authorisation can only be given by a director where appropriate and can be made subject to limitations or conditions. In determining whether an individual should be authorised or whether any authorisation should be limited or made subject to conditions, we anticipate that a director may well wish to satisfy himself or herself that an individual has an appropriate level of experience and expertise to carry out the listed task in question. Any such exercise inevitably entails the consideration of the non-PCO’s qualifications. The director will have in mind the contractual penalties—including financial penalties—and reputational damage that operational failures in private prisons incur, then they will make a decision on the appropriateness of an individual for a particular task. I hope that that satisfies the Committee that the amendment is unnecessary, and that the noble Baroness will feel happy to withdraw it, although I understand why she has raised the matter and why it is important to have this discussion.