House of Commons - Explanatory Note
Offender Management Bill - continued          House of Commons

back to previous text

Clause 14: Powers of director of a contracted out prison

82.     This clause removes the prohibition in section 85(3) of the Criminal Justice Act 1991 that prevents a director in a contracted-out prison from exercising certain adjudication and segregation functions. The effect of this amendment is that a director, rather than a controller (who is employed by the Home Office and currently exercises the functions in question) will be able to inquire into a disciplinary charge laid against a prisoner, conduct the hearing of a charge or make an award in respect of any charge. All such proceedings will take place in accordance with the Prison Rules or the Young Offender Institution Rules, as appropriate. By virtue of the amendments made by this clause a director will also be able to segregate prisoners, temporarily confine prisoners or apply special controls or restraints in non-urgent situations.

Clause 15: Amendment of section 87 of Criminal Justice Act 1991

83.     This clause makes two small amendments to section 87 of the Criminal Justice Act 1991. The principal effect of the clause is to enable the search powers vested in "authorised employees" under section 8A of the 1991 Act, together with the mechanism for authorising those searches, to apply in a contracted-out prison. Accordingly a director of such a prison will be able to authorise employees who are not prisoner custody officers to carry out "rub down" searches in accordance with section 8A.

Clause 16: Assisting a prisoner to escape

84.     This clause replaces section 39 of the Prison Act 1952 with a new section 39 to bring the terminology up-to-date and more in line with the new sections contained in clause 17.

Clause 17: Conveyance of prohibited articles into or out of prison

85.     This clause replaces section 40 of the Prison Act 1952 with new sections 40A, 40B and 40C. These new sections clarify the existing law, make changes to the penalties and mode of trial for certain offences and create new offences of taking mobile phones, sound recording devices and cameras into a prison.

86.     New section 40A defines the categories of articles which are referred to in sections 40B and 40C. There are 3 groups (described as List A, List B and List C) of prohibited items. Subsection (2) provides for List A (dangerous articles and controlled drugs). Subsection (3) provides for List B articles (alcohol, mobile telephones, cameras and sound-recording devices). Subsection (4) defines "camera" and "sound-recording device". Subsection (5) provides for List C items which include any article or substance prescribed by prison rules. Subsection (6) enables the Secretary of State to amend new section 40A by adding, repealing or modifying an entry to List A or B or any provision for the interpretation of the section.

87.     New section 40B makes it an offence to convey List A articles into or out of prison without authorisation. Subsection (1) details the type of conduct which is covered by the new offence. Subsections (2) to (5) define authorisation and detail how the authorisation may be given and by whom. Subsection (6) sets out the maximum penalty and mode of trial for the new offence.

88.     New section 40C makes it an offence to convey List B or C articles into or out of prison. Subsections (1) (List B) and (2) (List C) detail the type of conduct which is prohibited by the new offences which a person commits if he does so without authorisation. Subsection (4) provides for defences where the person reasonably believed he had authorisation or where there was an overriding public interest which justified the doing of the prohibited act. Subsections (5) (List B) and (6) (List C) set out the maximum penalty and mode of trial for the new offences.

89.     Clause 17 (2) deals with the Secretary of State's power to make orders under the Prison Act 1952.

Clause 18: Other offences relating to prison security

90.     This clause inserts new sections 40D and 40E to the Prison Act 1952. These new sections create new offences of taking a photograph or making sound recordings within a prison or transmitting images or sounds from a prison without authorisation. It also makes it an offence to take a restricted document out of a prison.

91.     New section 40D creates the offence of taking a photograph or making sound recordings in a prison or transmitting any image or sound by electronic communications. Subsection (3) creates offences related to restricted documents. Subsection (4) provides for defences where the person reasonably believed he had authorisation or where there was an overriding public interest which justified the doing of the prohibited act. Subsection (5) sets out the maximum penalty and mode of trial for the new offences.

92.     New section 40E gives details of how an authorisation may be given and by whom. It also provides definitions of terms used in the new sections and makes minor repeals of, and consequential amendments to, the Prison Act 1952. Amendments by Order under section 40A(6) relating to List A articles can only be made after a draft order has been laid before and approved by a resolution of each House of Parliament. Where an amendment is only made to List B articles then the order is subject to annulment in Parliament.

Clause 19: Offences under sections 17 and 18: extension of Crown immunity

93.     New section 40F extends Crown immunity in relation to offences under new sections 40B, 40C and 40D to designated persons working at a prison. This ensures that all relevant staff can be treated the same in relation to the new offences.

Clause 20: Removal of requirement to appoint a medical officer etc

94.     This clause removes the requirement in the Prison Act 1952 for prisons to appoint a medical officer. The medical officer role was created to reflect custom and practice at the time of incorporating specific managerial and clinical responsibilities within the prison. The role of the medical officer has, in practice, evolved over the years so that it is no longer common practice for managerial responsibilities to be part of the role. In recent years in many cases the purely clinical "prison doctor" role has been undertaken by externally contracted GPs from the NHS.

95.     From April 2003, prison health services became the responsibility of the Secretary of State for health under separate existing legal provisions. The NHS, in the form of Primary Care Trusts have now assumed statutory responsibility for local prison health services. The original medical officer role is no longer required.

Clause 21: Amendment of section 8A of the Prison Act 1952

96.     This clause makes a small amendment to section 8A of the Prison Act 1952 by providing that a person who is not necessarily an employee of a prison, but who is working there can be authorised to carry out a "rub down search" under section 8A.

PART 3: OTHER PROVISIONS ABOUT OFFENDER MANAGEMENT

Clause 22: Accreditation of programmes for purposes of programme requirements

97.     Currently section 202 of the Criminal Justice Act 2003 makes provision for an 'accreditation' body to accredit programmes. The Correctional Services Accreditation Panel (CSAP) is designated as the accreditation body and is an advisory non-departmental public body. The Panel replaced the Prison Service's General and Sex Offender Treatment Programme Accreditation Panels established by the Prison Service in 1996.

98.     Following the establishment of NOMS the separation of commissioning from operational delivery secures the independence from service providers necessary for accreditation. There is therefore no longer a need for an NDPB or external chair. This clause amends section 202 of the Criminal Justice Act 2003, making provision for the Secretary of State to accredit programmes in place of the accreditation body. Decisions will be taken after consulting and receiving advice from a panel of experts to replace the CSAP.

Clause 23: Functions of Youth Justice Board

99.     Section 41(6) of the Crime and Disorder Act 1998 currently enables the Secretary of State, by order, to allow the Youth Justice Board to exercise concurrently with him his functions in relation to the youth justice system. The Youth Justice Board already exercises functions in relation to the placement of offenders sentenced to a Detention and Training Order. Subsection (2) of this clause enables the Secretary of State to ask the Board to assist him in carrying out his functions in relation to the release of offenders in youth detention accommodation. Subsection (3) allows the Secretary of State, in an order under section 41(6), to restrict the manner or classes of case in which the Youth Justice Board may exercise functions of his in respect of individual offenders. The Secretary of State is also given power to include in the order supplementary, incidental or consequential provisions.

Clause 24: Detention and training orders: early release

100.     This clause introduces an element of flexibility into the arrangements for early release from the custodial part of the Detention and Training Order. Young offenders serving Detention and Training Orders of 8 months or longer may be released one month before the mid-point of their sentence. Those serving orders of 18 months or longer may be released either one or two months before the mid-point. At present, early release, where authorised, must take place exactly one or, where appropriate, two, months before the mid-point. If anything happens to prevent this, the young person must remain in custody for a further month (i.e. until the mid-point, or the second early release point in the case of sentences of 18 months or longer).

101.      The amendments made by subsection (1) enables the trainee to be released at any point during the last month of the order (or two months, in the case of orders of 18 months or longer).

102.     Subsection (2) specifies that this new flexibility will apply to orders made before the clause comes into force as well as those made subsequently.

Clause 25: Accommodation in which period of detention and training to be served

103.     Detention and Training Orders are in two parts: the first spent in custody and the second under supervision in the community. At present, the young person (or "trainee") must be placed, during the custodial part, in one of the types of "secure accommodation" listed in section 107 of the Powers of Criminal Courts (Sentencing) Act 2000.

104.     The amendments made by the clause provide that (unless he or she has attained the age of 18) the trainee must now be placed in "youth detention accommodation". This category is wider than the current "secure accommodation". In future, it will be possible, for example, to place a young person in an "open" children's home as well as in a secure children's home. Trainees who are sent back to custody because they have breached the terms of their notice of supervision or committed a further offence during the community part of the order must, unless they have reached 18, also be placed in "youth detention accommodation".

105.     Subsection (7) replaces "secure accommodation" with "youth detention accommodation". Subsection (7)(b) adds, as a type of "youth detention accommodation", secure accommodation provided on behalf of a local authority to the list of allowable types of placement. (Secure accommodation provided by the local authority itself is already on the list.). Subsection (7)(c) removes the requirement that accommodation, directed by the Secretary of State to be "youth detention accommodation", be for the purpose of restricting liberty.

106.     Once the repeal of the sentence of detention in a Young Offender Institution (under the Criminal Justice and Court Services Act 2000) is brought into force, it is possible that young offender institutions will cease to accommodate 18-20 year olds. It is therefore necessary to make alternative provision for trainees for whom youth detention accommodation in no longer appropriate. Subsection (5) inserts a new section 105A in the 2000 Act which provides that, where a trainee has reached the age of 18, it will be possible for him or her to be detained in a prison at the direction of the Secretary of State.

Clause 26: Conversion of sentence of detention to sentence of imprisonment

107.     This clause amends section 99 of the Powers of Criminal Courts (Sentencing) Act 2000 which currently enables the Secretary of State to direct that a term of detention under section 90 or 91 of that Act or section 226 or 228 of the Criminal Justice Act 2003 may be treated as a sentence of imprisonment, where the offender has reached the age of 21, or where the offender has reached the age of 18 if certain circumstances apply.

108.     Subsection (1) provides that the Secretary of State may make such a direction whenever the offender has reached the age of 18. This is to take account of the reduction in the minimum age of imprisonment to 18 (by section 61 of the Criminal Justice and Court Services Act 2000 - yet to be commenced). Subsection (1A) provides that the change made by subsection (1) does not affect the Secretary of State's power to direct that a person detained under section 92 or section 235 of the Criminal Justice Act 2003 be detained in a prison.

Clause 27: Escort arrangements

109.     Arrangements for conveying juvenile offenders between courts, custodial establishments, police stations and hospitals are currently provided in the Criminal Justice Act 1991 and the Criminal Justice and Public Order Act 1994. This clause extends the provisions of the 1994 Act. It gives authority for the transporting of a greater range of detained young persons between a wider range of types of premises, including young offender institutions, secure training centres and secure children's homes. Transporting of remanded, as well as sentenced, young people is covered, between any of the types of youth detention accommodation defined in section 107(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (as amended by clause 25(7)), as well as courts, police stations and hospitals.

PART 4: SUPPLEMENTAL

Clause 28: Orders and Regulations

110.     This clause sets out the level of parliamentary scrutiny applicable to orders and regulations made under the Act. It does not apply to orders establishing probation trusts and commencement orders which are not subject to any Parliamentary procedure. Save for orders made under clause 10(2)(g) or (7) or clause 30(2)(b), which are subject to draft affirmative procedure, orders and regulations will be subject to negative resolution procedure.

Clause 29: Financial Provisions

111.     This clause gives the Secretary of State authority to spend money provided by Parliament for the purposes of the Act.

Clause 30: Power to make consequential and transitional provision etc

112.     This clause enables the Secretary of State, by order, to make any supplementary, incidental or consequential provision, and any transitional or saving provision which he considers necessary to give full effect to the Act.

Clause 31: Amendments, transitionals and repeals

113.     This clause gives effect to Schedules 3, 4 and 5 which deal with minor and consequential amendments, transitional provisions and savings, and repeals respectively.

Clause 32: Extent

114.     The Bill forms part of the law of England and Wales only, save for the exceptions listed.

Clause 33: Commencement

115.     This clause sets out the arrangements for bringing into force the provisions of the Act.

116.     Subsection (1) states that the preceding provisions shall come into force on a day which the Secretary of State may, by order, appoint.

117.     Subsection (2) states that different provisions may be brought into force at different times and in different areas.

118.     Subsection (3) states that orders under this section may include transitional provisions or savings.

Clause 34: Short title

119.     This clause sets out the short title of the Bill.

COMMENTARY ON THE SCHEDULES

Schedule 1: Probation trusts: further provisions

120.     Paragraph 1 states that a probation trust is a body corporate and that its name is that specified in the order. It is envisaged that the order will name the probation trust in accordance with the geographical area in which it is based but without limiting the trust's area of operation to that geographical area (see also note to clause 4).

121.     Paragraph 3(1) specifies that a probation trust shall comprise a chairman and no fewer than four other members appointed by the Secretary of State. In practice, we envisage that most trusts will have more members than this but the legislation allows flexibility for the number to vary between trusts and over time, depending on the nature and scale of an individual trust's business. A trust shall also include the chief executive who will become an ex officio member on appointment. Paragraph 3(2) clarifies that, where subsequent provisions refer to an "appointed member" of a trust, this refers to a member appointed by the Secretary of State; it does not include the chief executive.

122.     Paragraph 5 states that the Secretary of State shall pay appointed members and pay, or make provision, for the payment of pensions etc. In both cases, the level of such payments is for the Secretary of State to determine. The paragraph also enables, but does not require, the Secretary of State to compensate a member who ceases to hold office (other than on the expiry of his term) if the Secretary of State deems it appropriate.

123.     Paragraph 6 states that the members appointed by the Secretary of State shall appoint a chief executive who shall be an employee of the trust and whose terms of employment are for the appointed members to determine (at present the chief officer of a local probation board is appointed by the Secretary of State). But this would not apply if the Secretary of State were to direct the appointment of the first chief executive of the trust and his terms and conditions.

124.     Paragraph 7 sets out the provisions for the appointment of staff. The trust appoints its own staff and sets its own terms and conditions, subject to the proviso (in paragraph 8) which sets out that the determination of terms of employment relating to remuneration, fees or expenses and pensions, allowances or gratuities requires the approval of the Secretary of State unless he directs otherwise. Such a direction may apply to all trusts or to individual ones.

125.     Paragraph 9 enables the trust to regulate its own procedure.

126.     Paragraph 10 clarifies that the validity of a trust's proceedings are not affected by a vacancy among its members or a defect in the appointment of any member.

127.     Paragraph 11 enables a probation trust to authorise an appointed member, a committee, the chief executive or any other member of staff to do anything that the trust would otherwise have to do itself.

128.     Paragraph 12 empowers a trust to do anything it thinks necessary to achieve its purposes, except that it may not hold land or borrow or invest money without the general or specific approval of the Secretary of State

129.     Paragraph 13 requires a trust to keep proper financial records and prepare an annual statement of accounts, which may be examined by the Comptroller and Auditor General. It makes consequential amendments to the Audit Commission Act 1988, as amended by the 2000 Act, changing references to "local probation boards" to "probation trusts" and requiring trusts to prepare their accounts in accordance with Audit Commission requirements. However, the Bill does not require the Secretary of State to consolidate accounts from the individual trusts for the National Audit Office (as the Home Office does currently for probation boards).

130.     Paragraph 14 requires a trust to comply with any general or specific directions given to it by the Secretary of State and to provide the Secretary of State with information if he so directs.

Schedule 2: Transfers of property etc and staff in connection with probation services arrangements

131.     Schedule 2 covers certain matters relating to the abolition of local probation boards or the making or termination of any arrangements for the delivery of probation services.

132.     Paragraph 1 states that transfer schemes may be made in connection with this and defines "property transfer scheme", "property", "relevant person" and "staff transfer scheme".

133.     Paragraphs 2 to 4 deal with property transfer schemes. Paragraph 2 enables the Secretary of State to make a property transfer scheme to transfer to the Secretary of State the property and liabilities of a local probation board, or a relevant person, or to transfer to a relevant person any property or liabilities of the Secretary of State.

134.     Paragraph 3 states that a property transfer scheme takes precedence over any other provisions which might restrict transfers. Such compensation for loss of rights or reverter is to be paid by the transferor and/or transferee as appropriate, and the scheme may include a mechanism for resolving disputes over compensation.

135.     Paragraph 4 states that any ongoing proceedings or activities relating to the transferor are to be treated as if relating to the transferee when the transfer has taken place.

136.     Paragraphs 5 to 10 deal with staff transfer schemes. The policy intention is that staff who transfer between providers of probation services should have their terms and conditions protected by law. In many cases the Transfer of Undertakings (Protection of Employment) Regulations 2006 will provide the appropriate protection. But, in cases where TUPE does not apply, these paragraphs enable the Secretary of State to make equivalent provision. Paragraph 5 enables the Secretary of State to make a staff transfer scheme to transfer:

  • employees of a local probation board to a relevant person;

  • employees of one relevant person to another; or

  • transfers from providers to the civil service and vice versa.

A scheme may not be made unless any directions about consultation given by the Secretary of State have been complied with.

137.     Paragraph 6 deals with transfers between relevant persons or between probation boards and relevant persons and it provides that, when an employee is transferred under the scheme, his continuity of employment is maintained and the rights, duties and liabilities of his previous employer are transferred to the new one. If an employee does not wish to transfer to the new employer, his contract is terminated and he is not to be treated as having been dismissed for the purposes of the Employment Rights Act 1996.

138.     Paragraph 7 makes similar provision in relation to employees of probation boards who transfer to the civil service.

139.     Paragraph 8 makes similar provision in relation to civil servants who transfer to the employment of a probation trust or other provider.

140.     Paragraph 9 makes clear that the Schedule does not prejudice an employee's right to terminate his employment if his working conditions are changed substantially to his detriment.

141.     Paragraph 10 states that, if a contract of employment with either a board or a trust is not transferred to a new employer, the contract is terminated and the employee is treated as having been dismissed for the purposes of the Employment Rights Act 1996.

Schedule 3: Minor and Consequential Amendments

142.     Part 1 makes amendments to various Acts consequential on the amendments in clause 25 relating to the accommodation in which a person may be detained under a detention and training order.

143.     Part 2 makes changes consequential to the revision by clause 27 of the escort arrangements for young people who are detained, so as to include those remanded or committed to custody and to cover the full range of "youth detention accommodation".

Schedule 4: Transitional and transitory provisions and savings

144.     Paragraph 1 deals with what happens when a chief officer of a local probation board is not appointed chief executive of a probation trust. If a local probation board is abolished under the terms of the Act and the chief officer of that board is not appointed as chief executive of a probation trust before ceasing to hold office as chief officer, the Secretary of State may pay such compensation as he considers appropriate.

145.     Paragraph 2 deals with what happens when a chief officer of a local probation board is appointed chief executive of a probation trust. In that case, his continuity of employment is preserved and the period he spent as a chief officer (including any previous service as a chief probation officer with a probation committee) will count as a period of employment with the trust.

146.     Paragraph 6 makes clear that the Secretary of State may make an order under clause 30(1) to provide transitional arrangements, in the event that the new escort arrangements in clause 27 are introduced before the sentences of detention in a young offender institution and custody for life are abolished.

147.     Paragraph 7 of the Schedule makes transitory provision to cover the possibility that section 59 of the Criminal Justice and Court Services Act 2000 (which provides for the abolition of remand centres) does not come into force before the amendment made by paragraph 7(2) of Schedule 3.

 
previous Section Bill Home Page continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries ordering index

© Parliamentary copyright 2006
Prepared: 24 November 2006