Offender Management Bill

moved Amendment No. 109: 109: Clause 19, page 13, line 3, at end insert ““prison rules or by”” The noble Baroness said: I shall also speak to Amendments Nos. 110 and 111. Clause 19 replaces Section 40 of the Prison Act 1952 with new Sections 40A, 40B and 40C. The new sections clarify the existing law, make changes to the penalties and mode of trial for certain offences and create the new offences of taking mobile phones, sound recording devices and cameras into a prison. We support the government amendment that has just been moved for that very reason: it clarifies and tightens up what could have been a loophole. We have tabled these amendments to ask the Minister to clarify matters regarding the actual process of authorisation that has been identifiedby the Delegated Powers and Regulatory Reform Committee in paragraphs 30 to 33 of its seventh report. Under Section 40E(1) and (2), as inserted by Clause 20—including as applied by Section 40C(7)—the Secretary of State may give an authorisation relating to the list B or list C articles. These authorisations need not be given only to individuals: they may be given to persons generally or to descriptions of persons, and for all prisons or for descriptions of prisons. So, authorisations by the Secretary of State which relate to all prisons or to descriptions of prison may be given either in prison rules, subject of course to the negative procedure, or by the Secretary of State administratively. In other words, the Secretary of State has a choice. The option of granting an authorisation by prison rules may recognise the fact that broad authorisations have, in effect, the legislative character of a general exemption. But the Bill does not require general authorisations to be given by rules, nor does the Home Office memorandum explain in what circumstances each different method will be used. The Delegated Powers Committee drew this position to the attention of the House so that we might ask the Minister to explain and justify in what circumstances the Government would propose to grant authorisations administratively and when they would choose to do it by prison rules. Furthermore, that committee pointed out that under Section 40B(2)(a), and Section 40(3)(a) and (b), the Secretary of State may give an authorisation relating to list A articles. While an authorisation cannot cover persons generally, it can cover descriptions of person—not just individuals—and all prisons or descriptions of both prison and acts, not just a particular deed. The only formality required for even a wide authorisation, which could border on the legislative, is that the authorisation be in writing or recorded in writing. What seems strange is that the option of prison rules seems not to be available at all. The Delegated Powers Committee similarly drew this matter to the attention of the House, so that your Lordships might ask the Minister to justify that position. We therefore tabled these amendments to enable the Government to do so, which I hope is to the satisfaction of the Committee today. I beg to move.