Prisons and Courts Bill (HC Bill 170)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Make provision about prisons; make provision about practice and procedure
in courts and tribunals, organisation of courts and tribunals, functions of the
judiciary and of courts and tribunals and their staff, appointment and
deployment of the judiciary, and functions of the Judicial Appointments
Commission; and make provision about whiplash claims.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Prisons

Purpose of prisons etc; Her Majesty’s Chief Inspector and Inspectorate of Prisons

1 Prisons: purpose, and role of Secretary of State

(1) 5The Prison Act 1952 is amended as follows.

(2) For sections 1 to 4 substitute—

“Purpose of prisons
A1 Purpose of prisons

In giving effect to sentences or orders of imprisonment or detention
10imposed by courts, prisons must aim to—

(a) protect the public,

(b) reform and rehabilitate offenders,

(c) prepare prisoners for life outside prison, and

(d) maintain an environment that is safe and secure.

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Role of the Secretary of State in relation to prisons
1 General control over prisons

(1) The Secretary of State has overall responsibility for prisons.

(2) The Secretary of State may do anything necessary for the maintenance
5of prisons and prisoners, including—

(a) appointing officers and other staff, and

(b) entering into contracts.”

(3) In section 5 (annual report of the Secretary of State)—

(a) in subsection (1) for “every prison” substitute “prisons”;

(b) 10for subsection (2) substitute—

(2) The report must set out the extent to which prisons are meeting
the purpose mentioned in section A1.”

2 Her Majesty’s Chief Inspector and Inspectorate of Prisons

(1) The Prison Act 1952 is amended as follows.

(2) 15Before section 5A insert—

“Her Majesty’s Chief Inspector and Inspectorate of Prisons
5ZA Her Majesty’s Chief Inspector and Inspectorate of Prisons

(1) Her Majesty may appoint a person to be Chief Inspector of Prisons.

(2) The Chief Inspector is to be paid such salary and allowances as the
20Secretary of State may determine.

(3) The Chief Inspector of Prisons, together with the staff who carry out
functions on behalf of the Chief Inspector, are to be known as Her
Majesty’s Inspectorate of Prisons.

(4) Her Majesty’s Inspectorate of Prisons may carry out any of the
25functions of the Chief Inspector, other than the functions mentioned
in—

(a) section 5C(1) (urgent notification of significant concerns), and

(b) paragraph 2 of Schedule A2 (certification to court of
obstruction).

(5) 30The provisions in this Act about Her Majesty’s Chief Inspector of
Prisons and Her Majesty’s Inspectorate of Prisons are in accordance
with the objective of OPCAT.

(6) In subsection (5)

  • “OPCAT” means the Optional Protocol to the Convention against
    35Torture and other Cruel, Inhuman or Degrading Treatment or
    Punishment adopted on 18th December 2002 at the fifty-
    seventh session of the General Assembly of the United Nations
    by resolution A/RES/57/199;

  • “the objective of OPCAT” means the objective of establishing a
    40system of regular visits undertaken by independent
    international and national bodies to places where people are

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    deprived of their liberty in order to prevent torture and other
    cruel, inhuman or degrading treatment or punishment.”

(3) After section 5ZA insert—

5ZB Further provision about the Chief Inspector and Inspectorate

5Schedule A1 to this Act (which makes further provision about the Chief
Inspector) has effect.”

(4) After section 5ZB insert—

5ZC Powers of entry etc

Schedule A2 to this Act (which makes provision about powers of entry)
10has effect.”

(5) In section 5A—

(a) omit subsections (1), (6) and (7);

(b) in subsection (5A), after “(5)” insert “and Schedule A2”;

(c) in subsection (5B), after “(5)” insert “and Schedule A2”;

(d) 15after subsection (5C) insert—

(5D) Paragraph 1 of Schedule A2 (powers to enter and require
information) applies to the areas of courts and the vehicles
mentioned in subsection (5C)—

(a) as if a reference to prisons were a reference to those
20areas or vehicles,

(b) as if a reference to prisoners detained in a prison were a
reference to prisoners detained in such areas or
transported in such vehicles, and

(c) with any other necessary modifications.

(5E) 25But—

(a) before exercising the power conferred by paragraph 1(1)
of that Schedule (power to enter) in relation to a court
area mentioned in subsection (5C), the Chief Inspector
must notify the Lord Chief Justice (or a person
30nominated by the Lord Chief Justice), and

(b) before exercising the power conferred by paragraph 1(2)
of that Schedule (power to require information) in
relation to information which is—

(i) held by a judicial office holder, or

(ii) 35forms part of the court record,

the Chief Inspector must obtain the consent of the Lord
Chief Justice (or a person nominated by the Lord Chief
Justice).

(5F) In subsection (5E)—

  • 40the “court record” comprises information contained in—

    (a)

    any document filed with, or otherwise placed in
    the custody of, a court for the purposes of
    proceedings in a particular cause or matter, or

    (b)

    any document created by a court or a member of
    45the administrative staff of a court for the

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    purposes of proceedings in a particular cause or
    matter;

  • “judicial office holder” has the meaning given by section
    109(4) of the Constitutional Reform Act 2005.”

(e) 5for the section heading substitute “General reporting requirements:
prisons, immigration detention facilities and courts”.

(6) After section 5A insert—

5B Additional reporting requirements in relation to prisons

(1) The Chief Inspector must publish, or arrange for the publication of, all
10reports relating to prisons made to the Secretary of State under section
5A (but see paragraph 3 of Schedule A2).

(2) In preparing a section 5A(2) report, the Chief Inspector must have
regard to section A1 (purpose of prisons).

(3) In preparing a section 5A(2) report, the Chief Inspector must also
15consider the effectiveness of the leadership provided in relation to the
prison by—

(a) the governor or director of the prison,

(b) the prison officers, and

(c) any other persons the Chief Inspector considers relevant.

(4) 20Where a section 5A(2) report contains recommendations to the
Secretary of State, the Secretary of State must publish a response to the
recommendations before the end of the period of 90 days beginning
with the date on which the report was published.

(5) In this section—

  • 25“prison officer” includes a prisoner custody officer within the
    meaning of Part 4 of the Criminal Justice Act 1991;

  • “section 5A(2) report” means a report of the Chief Inspector under
    section 5A(2) following the inspection of a prison (or part of
    one).

5C 30Prisons giving rise to significant concerns

(1) Where—

(a) the Chief Inspector has inspected, or arranged for the inspection
of, a prison,

(b) the inspection has caused the Chief Inspector to have significant
35concerns about the treatment of prisoners or the conditions in
the prison, and

(c) the Chief Inspector considers that those concerns need to be
notified to and addressed by the Secretary of State as a matter of
urgency,

40the Chief Inspector must give a notification to the Secretary of State
describing the concerns (referred to in this section as “an urgent
notification”).

(2) Where the Chief Inspector gives an urgent notification to the Secretary
of State, the Chief Inspector must also publish, or arrange for the
45publication of, the notification (but see paragraph 3 of Schedule A2).

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(3) The Secretary of State must publish a response to an urgent notification
within 28 days beginning with the date on which the Chief Inspector
published the notification.

(4) The response must set out the actions that the Secretary of State has
5taken, or proposes to take, in response to the concerns described in the
notification.”

(7) After Schedule A1 (further provision about Her Majesty’s Chief Inspector of
Prisons) insert—

“SCHEDULE A2

Powers of entry etc.

1 Powers to enter prisons and require information

(1) 10The Chief Inspector may enter any prison.

(2) The Chief Inspector may require any person who holds relevant
information—

(a) to allow the Chief Inspector access to any of the information;

(b) to give the Chief Inspector—

(i) 15any of the information,

(ii) a copy of any of the information (in a form specified
by the Chief Inspector), or

(iii) an explanation of any of the information.

(3) But the Chief Inspector may not require the disclosure of information
20under this paragraph if the information—

(a) might incriminate the person disclosing it,

(b) is an item subject to legal privilege, or

(c) is intelligence service information.

(4) The Chief Inspector may require the governor or director of a prison
25to allow the Chief Inspector to communicate privately with any
person who—

(a) is a prisoner detained in the prison, or

(b) is employed or otherwise working in the prison,

(but this sub-paragraph does not impose any obligation on a person
30to communicate privately with the Chief Inspector).

(5) The Chief Inspector must make arrangements under which a person
can make representations to the Chief Inspector about any
requirement imposed on the person under sub-paragraph (2) or (4).

(6) A disclosure of information to the Chief Inspector in accordance with
35this paragraph does not breach—

(a) any obligation of confidence owed by any person, or

(b) any other restriction on the disclosure of information
(however imposed).

(7) But nothing in this paragraph authorises any disclosure of
40information which—

(a) contravenes the Data Protection Act 1998, or

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(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of
the Investigatory Powers Act 2016.

2 Obstruction of exercise of powers under paragraph 1

(1) The Chief Inspector may certify to the High Court (or, in Scotland,
5the Court of Session) that a person has, without lawful excuse,
obstructed the Chief Inspector in the exercise of a power conferred
by paragraph 1.

(2) The court may inquire into a certified obstruction.

(3) If the court is satisfied that the person carried out the certified
10obstruction, it may deal with the person in any way in which it could
deal with the person if he or she had committed contempt in relation
to the court.

(4) But before doing so, the court must hear—

(a) any witness on behalf of or against the person, and

(b) 15any statement in the person’s defence.

3 Restrictions on disclosure of information

(1) The Chief Inspector must not disclose any information if the
disclosure—

(a) would contravene the Data Protection Act 1998,

(b) 20is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of
the Investigatory Powers Act 2016,

(c) would be against the interests of national security,

(d) could jeopardise the safety of any person, or

(e) could prejudice the prevention or detection of crime.

(2) 25The Chief Inspector must not disclose intelligence service
information (or the fact that the Chief Inspector is in possession of
such information) without the consent of the relevant authority.

4 Interpretation

In this Schedule—

  • 30“information” includes any recording of an image or sound;

  • “intelligence service information” means information held by,
    obtained (directly or indirectly) from, or that relates to—

    (a)

    the Security Service,

    (b)

    the Secret Intelligence Service,

    (c)

    35GCHQ (within the meaning of section 3 of the
    Intelligence Services Act 1994), or

    (d)

    any part of her Majesty’s forces, or the Ministry of
    Defence, which engages in intelligence activities;

  • “item subject to legal privilege”—

    (a)

    40in England and Wales has the meaning given by
    section 10 of the Police and Criminal Evidence Act
    1984;

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    (b)

    in Northern Ireland has the meaning given by Article
    12 of the Police and Criminal Evidence (Northern
    Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12));

    (c)

    in Scotland has the meaning given by section 412 of
    5the Proceeds of Crime Act 2002;

  • “relevant authority” means—

    (a)

    in the case of information obtained from or relating to
    the Security Service, the Director-General of the
    Security Service;

    (b)

    10in the case of information obtained from or relating to
    the Secret Intelligence Service, the Chief of the Secret
    Intelligence Service;

    (c)

    in the case of information obtained from or relating to
    GCHQ, the Director of GCHQ;

    (d)

    15in the case of information obtained from or relating to
    Her Majesty’s forces or the Ministry of Defence, the
    Secretary of State;

  • “relevant information” means information that—

    (a)

    relates to the running of a prison, or to prisoners
    20detained in a prison, and

    (b)

    is needed in connection with an inspection of a prison
    (or part of one) under section 5A(2);

  • a reference to communication between two persons is a
    reference to communication by any means (whether
    25conducted face-to-face or otherwise);

  • a reference to two persons communicating privately includes a
    reference to communication in the presence of, or with the
    participation of, another person if the two persons agree to
    the other person’s presence or participation.”

3 30Minor and consequential amendments to Prison Act 1952

(1) The Prison Act 1952 is amended as follows.

(2) In section 42 (display of notice of penalties), for the words from the beginning
to “every” substitute “The governor or director of a prison must display in a
conspicuous place outside the”.

(3) 35In section 43 (places for the detention of young offenders etc)—

(a) in subsection (3), for “Sections 1 to 42A and Schedule A1” substitute
“Sections A1 to 42A and Schedules A1 and A2”;

(b) in the table in subsection (4)—

(i) in the row relating to young offender institutions, for “Section
4028” substitute “Sections A1, 5(2), 5B(2) and 28”;

(ii) in the row relating to secure training centres or secure colleges,
for “Sections 5” substitute “Sections A1, 5, 5B(2)”;

(c) in the table in subsection (7)—

(i) in the row relating to young offender institutions, for “Sections
455A, 6(2) and (3), 16, 22, 36 and 42A and Schedule A1” substitute
“Sections 5ZA to 5C, 6(2) and (3), 16, 22, 36 and 42A and
Schedules A1 and A2”;

(ii) in the row relating to secure training centres or secure colleges,
for “Sections 5A, 16, 22, 36 and 42A and Schedule A1” substitute

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“Sections 5ZA to 5C, 16, 22, 36 and 42A and Schedules A1 and
A2”;

(d) after subsection (11) insert—

(11A) Subsection (4) applies as if for the table there were substituted
5the following table—

Place Provisions
Young offender institutions Section 28
Young offender institutions
used wholly or mainly for
the detention of persons
aged under 18
Sections A1, 5(2), 5B(2) and 28

10
Secure training centres or
secure colleges
Sections A1, 5, 5B(2), 6(2) and (3),
12, 14, 19 and 28”

(4) In section 55—

(a) 15in subsection (6) (provisions extending beyond England and Wales)—

(i) omit the “and” at the end of paragraph (a);

(ii) at the end of paragraph (b) insert , and

(c) this section.”;

(b) after subsection (6) insert—

(7) 20And the following shall extend to England and Wales and, in
their application to functions conferred by virtue of section
5A(5A), to Scotland and Northern Ireland—

(a) section 5ZA, and

(b) section 5ZC and Schedule A2.”

(5) 25In Schedule A1, in the shoulder reference, for “5A” substitute “5ZB”.

The Prisons and Probation Ombudsman

4 The Prisons and Probation Ombudsman

(1) The office of Prisons and Probation Ombudsman (referred to in this Part as “the
Ombudsman”) is established.

(2) 30The Ombudsman has the following functions—

(a) investigating deaths of—

(i) persons detained or resident in criminal justice institutions in
England and Wales,

(ii) persons detained or resident in secure children’s homes in
35England and Wales,

(iii) persons detained in immigration detention facilities or under
immigration escort arrangements, and

(iv) certain persons who have ceased to be so detained or resident,

and producing reports on those investigations (see sections 5 to 8);

(b) 40investigating complaints made by—

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(i) persons detained in certain criminal justice institutions in
England and Wales,

(ii) persons detained in immigration detention facilities or under
immigration escort arrangements, and

(iii) 5persons subject to probation supervision in England and Wales,

and producing reports on those investigations (see sections 9 and 10);

(c) carrying out, at the request of the Secretary of State, other
investigations relating to detention or probation services (see section
11);

(d) 10producing reports on patterns and themes the Ombudsman has
identified from the exercise of the Ombudsman’s other functions (see
section 11);

(e) any functions conferred on the Ombudsman by regulations made by
the Secretary of State.

(3) 15Before making regulations under subsection (2)(e), the Secretary of State must
consult the Ombudsman.

(4) Regulations under subsection (2)(e) may specify the manner in which the
Ombudsman is to perform a function conferred by the regulations.

(5) Regulations under subsection (2)(e) are subject to affirmative resolution
20procedure.

(6) Schedule 1 (the Prisons and Probation Ombudsman) has effect.

5 Investigations of deaths within the Ombudsman’s remit

(1) This section applies where a death occurs that is within the Ombudsman’s
remit.

(2) 25A death is within the Ombudsman’s remit if it is the death of a person who, at
the time of their death, was—

(a) detained or resident in a criminal justice institution in England or
Wales (and for these purposes, a person is to be treated as having been
detained in a criminal justice institution if the person was on temporary
30release from that institution),

(b) detained or resident in a secure children’s home in England or Wales
(and for these purposes, a person is to be treated as having been
detained in a secure children’s home if the person was on temporary
release from that home),

(c) 35detained in an immigration detention facility, or

(d) detained under immigration escort arrangements.

(3) The person in charge of the criminal justice institution, secure children’s home,
immigration detention facility or immigration escort arrangements must
ensure that the Ombudsman is notified of the death.

(4) 40If the Ombudsman is notified of a death within the Ombudsman’s remit, the
Ombudsman must investigate the death.

(5) It is for the Ombudsman to decide on the appropriate extent of the
investigation and how it is to be carried out.