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

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Schedule 5: Repeals and revocations

148.     This Schedule lists provisions repeals as a consequence of the Act.

FINANCIAL EFFECTS AND EFFECTS ON PUBLIC SERVICE MANPOWER

149.     The Probation Service estimated outturn for 2006/07 is £880m. This estimate includes the cost of local probation boards and the National Probation Directorate. It excludes certain probation related functions that are carried out at NOMS centre such as Public Protection and Finance. The cost of electronic Monitoring is not included in this estimate.

150.     The main financial implications arise from implementation of the new arrangements for the provision of probation services in Part 1. Offering other providers the opportunity to demonstrate what they could deliver will incur costs for NOMS in a number of areas, including the administration of procurement exercises, the preparation of providers proposals and commissioner requirements, and the management of contracts and in-house contract compliance. These are both affordable within current allocations and expected to be offset and exceeded by the savings from implementing commissioning with contestability.

151.     Using a range of savings rates starting at 3.5% of the value of business contested and taking the upper limit of savings as 8.5% it is anticipated that there will be annual savings of over £2m at 3.5% and around £13m at 8.5%. These figures apply once the programme of contestability is established.

152.     It is not envisaged that Parts 2 or 3 of the Bill would have any significant financial effects.

Effects of the Bill on Public Sector Manpower

153.     Public sector manpower is not expected to increase as a result of the Bill.

154.     The new arrangements for the provision of probation services may result in some public sector staff transferring to the private or voluntary sector. In such circumstances, terms and conditions will be protected by TUPE regulations, or by the equivalent provisions detailed in paragraph 5 of Schedule 2.

SUMMARY OF THE REGULATORY APPRAISAL

155.     A regulatory impact assessment is published with the Bill. There are no proposals that have an adverse impact on business. Some additional business opportunities for the small business sector may be created through the increased competition for services.

EUROPEAN CONVENTION ON HUMAN RIGHTS

156.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Home Secretary, Dr John Reid, has made the following statement:

  • In my view the provisions of the Offender Management Bill are compatible with the Convention rights.

Part 1 -New arrangements for the provision of probation services

157.     Clauses 1 to 8 abolish local probation boards and give the responsibility for providing probation services to the Secretary of State. These are the legislative provisions necessary to enable the Secretary of State to commission probation services from the best available provider, whether in the public, private or voluntary sectors. Probation trusts will be established as the public sector provider with whom he may contract. Clause 9 deals with approved premises. It is not considered that these clauses give rise to any ECHR issues.

158.     Clause 10 enables the Secretary of State, providers of probation services and their officers, to share information with each other or with the Youth Justice Board, private prison contractors, the police and any person responsible for electronically monitoring an individual. The power applies where it is necessary or expedient for certain specified purposes. Disclosure of information relating to individuals is capable, in individual cases, of engaging the Government's obligations under article 8 of the ECHR (right to respect to private life). However, the power created by the clause is compatible with those obligations. This is because the clause creates a power to disclose information, not a duty to do so. Accordingly the party proposing to disclose is able to refrain from doing so if he considers that such a disclosure would amount to an unlawful interference with an individual's article 8 rights

Part 2 - Prisons

159.     Powers of search etc. Clauses 11 and 13 confer new powers of search. It is possible that the exercise of these new powers might engage the "right to respect for private life" limb of article 8 ECHR. Such an issue is most likely to arise in relation to exercise of new search powers or where the exercise of these new powers might engage the "correspondence" limb of article 8 ECHR, e.g. where the exercise of the new power authorises the performance of an activity which requires the supervision or observation of a prisoner in the prison or his communications with the outside world. However, it is considered that any interference with the right to respect for private life occasioned by these new powers would be in accordance with the law (because of the provision the Bill makes) and would be justified by reference to a legitimate aim - that of maintaining good order, protecting the health and security of prisoners and others and, possibly, preventing the commission of a crime. The question of whether any interference is proportionate will always depend on the circumstances of each case.

160.     Powers to detain. Clause 12 amends the Criminal Justice Act 1991 and the Criminal Justice and Public Order Act 1994 to enable a prisoner custody officer, or a custody officer, to require a person to wait with him for a period no longer than is necessary for a constable to arrive and, in any event, for no longer than two hours. The Government considers that this requirement to wait does not amount to a deprivation of liberty and therefore does not engage article 5 of the ECHR (the right to liberty and security). However, even if this were not the case and article 5 was engaged, the power does not of itself breach any of the obligations under article 5 in any event. This is because article 5(1)(c) permits an interference with the right to liberty guaranteed by article 5, where that interference is "effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence". The power provided for in the Bill is squarely within this limb of article 5, as it is clear from the express wording of the clause that a requirement to wait can be imposed by a prisoner custody officer or custody officer only where that officer has reason to believe that a person has committed a prison offence.

161.     Prison adjudication powers. Clause 14 enables a director of a contracted out prison to inquire into a disciplinary charge against a prisoner and to order the removal of a prisoner from association with other prisoners, temporarily confining him or imposing any control or restraints. It is not considered that this gives rise to any ECHR issues.

162.     Conveyance of prohibited articles into or out of a prison. Clauses 17, 18 and 19 amend the law relating to taking prohibited articles into and out of a prison by inserting new sections into the Prison Act 1952 and replacing section 40 and repealing section 41. The new section 40D will create the offences of: taking a photograph or making a sound-recording inside a prison; or the transmission of images or sound. That section will also create an offence of removing or transmitting a restricted document from a prison. Both of these offences will only be committed if the person is acting without authorisation. The Government is of the view that the new section 40D could, in certain circumstances, engage and interfere with rights under Article 10. However, the Department believes that the interference will be justified for the protection of the rights of prison staff and prisoners and the security of the prison.

163.     The new section 40B will prohibit the conveyance of dangerous articles like drugs, explosives and weapons and does not therefore engage ECHR rights.

164.     The new section 40C will prohibit the conveyance of, amongst other things, cameras, sound-recording devices and mobile phones as well as any other article prescribed by prison rules. These offences will only be committed if the person is acting without authorisation. The Government is of the view that the new section 40C may also engage Article 10 but that this is justifiable for the same reasons as for new section 40D.

165.     Abolition of requirement for a medical officer. Clause 20 provides that it is no longer a requirement for there to be a medical officer for every prison. The reason for this change is because the provision of medical care is now contracted out to primary care trusts and the role of medical officers has become redundant. This raises no ECHR issues.

Part 3 - Other provisions about offender management

166.     Conversion of sentence of detention to sentence of imprisonment. Clause 26 gives the Secretary of State power to send people who receive a detention and training order, and who turn 18, to prison and in this regard we note the Joint Committee on Human Rights' findings and recommendations in its Third Report. There will be policy guidelines in place to ensure that transfer to prison takes place only in appropriate cases, with due consideration to the requirements of the ECHR.

Part 4 - Supplemental

167.     The provisions in Part 4 of the Bill do not give rise to any ECHR issues.

COMMENCEMENT DATE

168.     The provisions of the Bill with the exception of sections 33 and 34 will be brought into force by way of a commencement order made by the Secretary of State.

 
 
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Prepared: 24 November 2006