Clause
11
Power
of search in contracted out prisons and secure training
centres
Question
proposed, That the clause stand part of the
Bill.
Mr.
Crispin Blunt (Reigate) (Con): I do not want to detain the
Committee, but I would like some elucidation of the thinking behind
this change to the law, particularly as I have two prisons in my
constituency. From the explanatory notes, I understand the change to be
that in contracted-out institutions—the prisons in my
constituency are not contracted-out—prisoner custody officers
will be allowed to invite prison visitors to strip themselves of all
their clothes to see whether there is anything in the clothes or on the
body. They will not, however, be allowed to carry out an intimate
search, which is presumably a search of body
cavities.
I would be
grateful if the Minister were to explain the reasoning behind the
provision. Will he give us some idea of offences that have been
committed by visitors smuggling drugs and other items into prisons?
What evidence does he have of behaviour in private prisons differing
from that in Her Majesty’s prisons? Is there a concern that a
lacuna exists, because he has not extended to contracted-out prisons
the right of intimate
searches?
Mr.
Sutcliffe:
I thank the hon. Gentleman for raising those
concerns. Perhaps it will help the Committee if I give some general
background to clauses 11 to 15, which deal with related
matters.
The Criminal
Justice Act 1991 created the legislative framework that supports the
use of private providers of custodial services. It created the role of
prisoner
custody officer, equivalent to a prison officer, as well as the roles of
director, equivalent to a governor, and of controller—a Crown
servant—who was given statutory duties aimed at ensuring the
proper running ofthe establishment and the appropriate
treatment of prisoners. The 1991 Act defines the scope of the powers of
each group. Clauses 11 to 15 and clause 21 make specific amendments to
the 1991 Act, rather than seeking to introduce new legislation to
replace or supplement
it. The first private
prison opened in 1992, and there are now 11 such prisons operating in
England and Wales holding about 10 per cent. of the prison population.
The companies that provide those services have developed a strong track
record of delivery and are driving forward the decency agenda, as well
as introducing innovation and increasing value for money in public
sector prisons. Martin Narey, the former director general of the Prison
Service, has said that if had not been for the private sector, the
decency agenda would not have moved at the pace that it has.
If we are to make a reality of
the recommendations in Lord Carter’s report, “Managing
Offenders, Reducing Crime”, then we need to provide, so far as
it is practicable, a level playing field between public, private and
voluntary providers in the delivery of services to offenders. That aim
is best served by ensuring parity in the framework within which
services are provided, so as to remove barriers to the best provider
being selected.
In
response to Lord Carter’s recommendations and the private
sector’s strong record on delivery, we therefore propose to
resolve some of the historical inconsistencies in the development of
private custodial provision. We will create a level playing field for
contestability by putting directors on a similar footing to prison
governors in the public sector and expanding the powers of less senior
workers to align them with their public sector counterparts. This raft
of changes is therefore supportive of the general development of
NOMS.
Turning to the
substance of the clause, the 1991 Act placed limits on the power of
prisoner custody officers to search visitors which are more restrictive
than those that apply to prison officers in the public sector. Those
powers prohibit anything other than a rub-down search, and they do not
permit a visitor to be required to remove any piece of clothing other
than an outer jacket, jacket or gloves. Such a strict prohibition is
not imposed on the public sector. The smuggling of drugs and other
items of contraband is a problem in both sectors. The searching
restrictions on prisoner custody officers have unintentionally made
illegal activities on the part of visitors and prisoners potentially
easier in private prisons, which does not make sense and which may
cause a real risk to the maintenance of prison security in the
future.
With this in
mind, we seek through this clause to make it clear that the rub-down
search power of a prison custody officer is broadly equivalent to that
available to a public sector prison officer. The clause expands that
power by deleting from the 1991 Act the prohibition of the removal of
anything other than outer clothing. I recognise that it is important
that the power is exercised properly and with restraint, and that the
limits to the power are fully understood by those
who use it. To reflect that desire, we have expressly included in the
clause a prohibition on the conduct of intimate searches, as defined
under section 164(5) of the Customs and Excise Management Act
1979, of visitors or prisoners by a PCO. It is our view that
such searches, if necessary, should be carried out only by a police
officer.
Mr.
Blunt:
Does that mean that prison officers and prison
custody officers will be on exactly the same footing, or will prison
officers still enjoy a wider right of search, such as the right to
conduct more intimate searches than prison custody
officers?
Mr.
Sutcliffe:
No; there are differences in relation to their
duties—we will come on to that point in clauses relating to the
role of a constable—but there will be parity in relation to
strip searches. It is important to set out the nature of those
responsibilities, which must be used in the right way in what we hope
will be very limited circumstances. However, we need to close that
gap.
The searching
techniques employed will be exercised in line with procedures currently
used in public sector prisons and in accordance with relevant prison
rules and young offender rules. It will ensure that staff exercise
their powers appropriately by having them certificated as competent by
the controller. Furthermore, a controller will be able to observe staff
conducting such searches and report to the Secretary of State if
allegations are made that the power has been improperly exercised. They
will also be able to impose penalties under the contract. In addition,
the independent monitoring board in each establishment and the prison
and probation ombudsman will provide impartial avenues for
complaint.
Given that
the restrictions imposed by the 1991 Act apply to young offender
institutions in the same way in which they apply to prisons, I should
point out that the expanded powers this clause provides would apply
equally in a privately operated young offender institution, although at
the moment there are no privately run YOIs. A similar amendment to the
Criminal Justice and Public Order Act 1994 will create parity in secure
training centres by giving custody officers the same expanded power of
search. Once again, it is important to emphasize that the power relates
to searching visitors to those centres and not to searching the
residents
themselves.
Finally,
the changes proposed by the clause do not provide custody officers or
prisoner custody officers with constabulary powers. It is not necessary
to provide them with such powers in order to achieve the aims of the
clause. I hope that, with those assurances, the Committee will accept
the clause.
Question put and agreed
to.
Clause 11
ordered to stand part of the Bill.
Clause
12
Power
of detention in contracted out prisons and secure training
centres
Question
proposed, That the clause stand part of the
Bill.
3.15
pm
Mr.
Garnier:
I just want to develop some of the points that my
hon. Friend the Member for Reigate mentioned in the debate on clause
11. They relate to the powers of prisoner custody officers to detain
suspected offenders. I seek clarity about the geographical limits of
PCOs to detain. Under new section 86A(1) of the Criminal Justice Act
1991:
“A
prisoner custody officer performing custodial duties at a contracted
out prison shall have the following
powers”.
Are those powers
limited to the geographical area of the contracted-out prison, or can
the PCO exercise powers of detention outside the limits of the prison
grounds? That might be relevant, because under new section 86A(3), a
person who makes off while subject to a requirement to wait can be
guilty of an offence.
The expression “makes
off” might need further explanation. Does it mean get clean
away, or simply move away in a way that is contrary to the request of
the PCO? I can see that if the person gets clean away, that will
present a problem for the relevant officer, because he will not have
the power to chase after him or call for assistance. Perhaps something
needs to be done about that.
I also invite the Minister to
explain how new section 9A(2) of the Criminal Justice and Public
Order Act 1994 bites. It
says:
“Where
the officer has reason to believe that the person is committing or has
committed an offence...the officer
may—
(a)
require the person to wait with him for the arrival of a constable for
such period as may be necessary (not exceeding two hours);
and
(b) use
reasonable force to prevent the person from making off while subject to
a requirement under paragraph (a).”
Does that mean that the custody officer
has under that legislation the power to lock people up? Does the person
wait only in a waiting place, say a public room in which he is told,
“Please don’t move”, or does the expression
“reasonable force” imply that having ordered a person to
do as he is told, the officer can physically put him in a room and lock
him up until a constable arrives? Those matters will no doubt be made
clear during the training of PCOs, and it might be that they are powers
that public service prison officers have and private service prison
officers do not. It is important that legislators, at least, should
know what the Government intend so that we can better understand the
context in which the clause operates.
Let me say one more thing
before the Minister replies. One of the useful things that we gained
from the informal evidence session last week was that Mr.
Martin Narey, who had been in the Prison Service for 25 years before he
moved to NOMS and then to Barnardo’s, candidly told us that he
had spent a long time in the Prison Service thinking that the use of
the private sector in the prisons world was wrong. He even used the
expression “immoral”. However, by the time that he had
finished, he was utterly convinced that the private sector was a useful
addendum to the prison system. It is interesting how the Government
have followed his lead and, although the Labour party used to be
vehemently opposed to private sector involvement in prisons, it now
seems to be a champion of it. Is it not interesting how these things
change?
Mr.
Sutcliffe:
On that final point, what the Government are
concerned about is what works. I have a great deal of respect for
Martin Narey’s work in the posts that he has held and in his
current post at Barnardo’s, where he is doing some excellent
work on the provision of support for children and is involved in giving
expert advice on the sex offender review that is taking place. We
should listen to him. He has said interesting things about the respect
and decency agenda in prisons, and the cultural changes that have taken
place there. It takes somebody who is very keen and involved with the
issues to be able to change his mind in the way that Martin did. That
means that we should all show a great deal of respect to the detail of
what he has said.
I
explained to the Committee what clauses 11 to 15 set out, and we have
just had an hour’s discussion on clause 11, PCOs, the criminal
offences that may be committed and the ability to carry out the
searches that are required. Clause 11 sets out how we want to extend
the effective search powers to PCOs, which is likely to increase the
detection of potential criminality via visits. Accordingly, it is
sensible that PCOs’ increased ability to detect potential
criminal acts is matched by provision of a specific power to detain an
offender at the point of detection until a police officer can arrive at
the prison in question and take over. The hon. and learned Gentleman
asked if that power would be extended to public places. No, it will be
confined to the grounds of the prison or secure training
centre.
These
difficulties do not exist in public sector prisons, because we know
that prison officers working there are Crown servants who have been
given constabulary powers by the Prison Act 1952. We do not consider it
necessary or desirable to give such powers to a non-Crown servant to
achieve the aim of the clause. However, we feel that this is an
appropriate time to resolve the difference in the power to detain. In
recognition of the concerns expressed over the granting of such
detention powers to employees of private companies, we have been
careful to ensure that the power does not provide more than is
necessary to achieve our desired aims. The clause does not create an
unfettered power to detain, and includes a number of important
safeguards that should ensure that it is used only when absolutely
necessary.
First, the
power to detain can only ever be used by a PCO in relation to a visitor
to a prison. Secondly, the detention power will be available only to a
PCO working at a contracted-out prison. Thirdly, we propose that the
PCO will have the power to require a visitor to wait with him or her
only when that officer has reason to believe that an offence against
section 39, 40 or 42 of the 1952 Act has been committed, or that the
person has attempted, incited or aided and abetted such an
offence.
Finally, we
propose limiting the period of detention permitted under the clause to
what is necessary to allow a police officer to attend the prison and
take over the arrest of the suspected offender. To remove any ambiguity
that that test might create, we have provided that the period of
detention should not exceed, as the hon. and learned Gentleman has
said, two hours in any event. The two-hour period was chosen to allow
reasonable time for the police to get to a remotely located prison at
peak times. Consequently, detention
under the two-hour power would be, we hope, very much the exception
rather than the rule. In our view, the time
limitation and the requirement that there be reasonable suspicion that
an offence has been committed ensure that any detention under the
clause either does not engage or is entirely compatible with article 5
of the European convention on human rights. To ensure that the power to
detain is fully effective in those circumstances where it is needed,
the clause also makes it an offence to attempt to make off from such a
period of detention and allows for reasonable force to be exercised in
support of the
detention.
Mr.
Blunt:
Can the Minister give us any statistics about the
number of times that such powers are required and about the concomitant
burden that falls on the police force that happens to be local to the
prison? Obviously the deployable resources of the police are frequently
stretched, although perhaps not always in visiting hours. I would be
grateful for some indication from the Minister how often the powers are
required.
Mr.
Sutcliffe:
As I said, I do not believe that the powers
will be used on a vast number of occasions. I do not have an exact
figure to hand. However, the police would clearly be interested in
acting if reasonable concerns had been raised by the prison custody
officer. I am not trying to deflect the hon. Gentleman’s
question. I am as concerned as he about the use of police resources,
but we are trying to set out a sensible opportunity for the police to
be called if there is a reason to suspect that an offence is being
committed. We think that the two-hour period is enough to ensure that
there is no impact on police resources and is appropriate in areas
where great distances need to be travelled. If we have any figures, I
will make sure that the hon. Gentleman receives them. We are talking
about prison visitors here, so any occurrence would be very
rare.
Mr.
Garnier:
The point is about police resources and dealing
with prisoners. I understand that, on 12 January, there were
300 prisoners in custody in police station cells. I wondered whether,
when the Minister writes to my hon. Friend the Member for Reigate, he
would include an up-to-date figure on the precise number of people who
would normally be in prison but are currently in police cells. I think
that we need clarity on
that.
Mr.
Sutcliffe:
The hon. and learned Gentleman is tempting me
down a route that I do not wish to take and which is outside the scope
of the Bill. The issue is of public interest, and the Home Secretary
and I intend to keep the House adequately informed, especially on the
progress that we have made. I think the hon. and learned Gentleman
refers to Operation Safeguard, but to give any great detail at this
point would be
wrong.
We were talking
about where we are heading with the detention powers in the clause.
Creating new detention powers raises key civil liberties and human
rights issues, which we have taken into account seriously during
drafting. I hope that we have put the right
safeguards in place. We think that bringing the private sector into
parity with the public sector on these matters is important. I hope
that, with the explanations that I have given, clause 12 can stand part
of the
Bill.
Question put
and agreed
to.
Clause 12
ordered to stand part of the
Bill.
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