Clause
13
Powers
of authorised persons to perform custodial duties and search
prisoners
Mark
Hunter:
I beg to move amendment No. 39, in
clause 13, page 10, line 13, at
end add—
‘( ) A worker at a
contracted-out prison shall be subject to qualification requirements
that the Secretary of State shall by regulation
define.’.
Clause
13 deals with the powers of authorised persons to perform custodial
duties and search prisoners. As with earlier amendments, the amendment
in my name and that of my hon. Friend the Member for Ceredigion is
probing. It addresses the issue of the qualification requirements that
the Secretary of State might choose to impose on workers, at
contracted-out prisons in particular. I seek to establish precisely
what training, qualifications and vetting process will be required of
the staff of a contracted-out prison before they are given the special
status established in the clause and allowed to perform duties
previously reserved for prisoner custody officers.
That information is needed for
a number of reasons. First, as with probation, the quality and
effectiveness of the Prison Service depends on the individuals working
in it. They need to know how to deal effectively with prisoners, how to
supervise them with care for the safety of the public and how to help
with the rehabilitation
process.
3.30
pm
At present,
somebody wishing to become a prison officer has to undergo a vetting
process, a selection test and specific training. There is continual
assessment and support from experienced staff. The clause opens up the
profession to allow other staff members who have not undergone the
necessary training and vetting procedures to work on tasks for which
that training is considered vital. For example, supervising prisoners
and therefore protecting the public requires a thorough understanding
of security checks and searching procedures. Dealing with prisoners who
are a danger to themselves or are in danger from other prisoners
requires a level of inter-personal skills for which prison officers are
tested in the recruitment process but which other staff members do not
necessarily have.
We
are anxious to gain an assurance from the Minister that those involved
in restricted activities such as searching prisoners and visitors and
other custodial tasks will have the necessary training and skills. It
is essential that training is mandatory and that the supervision of
those receiving on-the-job training is vigorous and carried out by
experienced
PCOs.
Furthermore, it
is essential that those working in private, contracted-out prisons can
exercise powers to search and detain only within a clear framework of
accountability, as exists in the statutory sector, because of the new
powers allowing auxiliary workers to undertake previously restricted
tasks such as the searching of children. Will the Minister address that
issue? I hope that
nobody will mistake this for a trivial issue. The Howard League for
Penal Reform, which has expressed its concerns about the change, found
that in one secure training centre alone more than 1,500 searches were
carried out, some of which included the instruction to remove all
clothing. We must ensure that those carrying out such searches, who
will not necessarily be trained and qualified PCOs, are fit to do so.
The Children’s Society and Barnardo’s expressed similar
concerns in a joint document,
writing:
“We
are anxious to receive assurances that any powers given to authorised
persons to perform custodial duties and search prisoners will, where
relevant, be accompanied by robust training requirements, child safety
protection and welfare
safeguards.”
I share that
anxiety and would like an assurance from the Minister that the staff
who will perform previously restricted duties will be adequately vetted
and trained under the current Department for Education and Skills
guidelines for working with children, “Common Core of Skills and
Knowledge for the Children’s Workforce”. Will the
Minister assure as that those safeguards of child safety will be in
place and that auxiliary staff who gain special status will be
CRB-checked, checked against the new vetting and barring system put in
place under the Safeguarding Vulnerable Groups Act 2006 and trained
according to the most recent DFES guidelines for working with
children?
Mr.
Sutcliffe:
I thank the hon. Gentleman for the spirit in
which he spoke to the
amendment.
The
difference between public sector and contracted-out prisons is
unnecessary and inefficient. There are different operating practices
between the two sectors, which is sometimes detrimental to the
operations and security of prisons. The Criminal Justice Act 1991
specifies that a custodial duty should be performed by a PCO. However,
the 1991 Act does not explicitly define the scope of a custodial duty,
which creates unhelpful potential for confusion about what staff other
than the PCOs can do in a private prison.
The aim of this clause,
alongside other amendments to the 1991 Act made by the Bill, is to
clear up that confusion by providing a mechanism by which those tasks
can be carried out by non-PCO staff who will be listed in a statutory
instrument. Consequently clause 13 formally recognises that a non-PCO
may, subject to the authorisation of the director, do tasks requiring
the performance of some form of custodial duty. In order for a non-PCO
to do such a task, it must be listed in a statutory instrument and the
work must have been separately authorised by the director of the prison
in which he or she
works.
The public
sector employees operational support grades will work alongside prison
officers. Those OSGs will perform a limited range of custodial duties
in support of the prison officers. The equivalent to a OSG in a private
prison is an auxiliary officer. However, due to the restrictions of the
1991 Act, the only people who can perform custodial duties in a private
prison are PCO grades. The absence of a clear definition of a custodial
duty in the 1991 Act has created unhelpful
confusion over what operational duties non-PCO staff
can undertake. The position becomes potentially even more unclear as
the public sector, free of any such requirements, makes greater use of
OSGs to support prison officers in the course of their custodial
work. The result is
potential disparity between the two sectors in who is able to perform
ostensibly similar tasks. As an OSG is paid less than a prison officer
it gives the public sector a financial and competitive advantage over
private contractors. It also provides a clear operational disadvantage
by creating greater operational flexibility which it would be desirable
to extend to private prisons. We are not seeking to provide non-PCO
staff with any power beyond those held by their OSG-equivalent
colleagues in the public sector. We are merely seeking to establish
that it is sensible to allow both to have equal powers so as to ensure
effective security and operational delivery.
To bring them in line with the
equivalent public sector staff, staff in private prisons need to be
able to do certain tasks that may involve the performance of a
custodial duty. If we do not give them those powers, inefficiencies in
operational management will continue, and transfer from one sector to
another will be made more difficult. We are formally recognising the
professional work already undertaken over many years by staff other
than PCOs to support the effective running of a private prison. In
exactly the same way as the OSGs have become a crucial part of the
operating environment in public sector prisons, in support of prison
officers, so auxiliary officers need to carry out a similar range of
functions in private prisons.
It is important to remember
that nothing in this clause will extend the boundaries of flexible
staff deployment in private prisons any further than is already
operating very successfully in the public sector. Indeed, it is only by
virtue of the different employment status of staff in public sector
prisons, rather than any tension in legislation, that this clause is
needed at all. The public sector Prison Service has been able to create
grades of staff other than prison officers to suit the changing
operational environment that it faces, according to need and without
any legislative restrictions on the range of custodial duties that
those new grades will then perform.
If we are serious about giving
effect to the principle of contestability across the prison estate, it
is vital that this flexibility be given to the private sector too,
subject to those safeguards which it is sensible to put
inplace to ensure effective scrutiny of the resulting
arrangements. Restrictions on who can perform custodial duties in
private prisons mean that while the public sector can regrade duties of
a supportive nature, such as gatekeeping and CCTV monitoring of prison
officers, to allow other grades of staff to perform them on the grounds
of operational expediency and cost-effectiveness, the private sector is
required to persist with rigidly imposed and unjustified requirements
to use PCO staff. Such restrictions are then passed on to the taxpayer
when savings could otherwise have been made with no more risks to order
and control than have applied in the public
sector.
Amendment No.
39 seeks to require the Secretary of State to set unnecessary
qualification requirements for non-PCO staff before they could be
authorised to
perform a custodial duty. The aim of the clause is to reduce unduly
restrictive limitation on those working in the private sector while
ensuring that appropriate safeguards are maintained. Accepting the
amendment would not only perpetuate unwanted differences in operational
practice between the public and private sectors but introduce an extra
difference: in the same way as PCOs can only formally carry out
custodial duties, in future only those who met the requirements set out
in a statutory instrument would be able to carry out duties listed
under the power given by the clause. If we were to accept the amendment
it would undermine the purpose of the clause. On the face of it, a
requirement on the Secretary of State to make non-PCO grades subject to
qualification requirements might appear to offer an assurance, but that
would not be the case.
Mark
Hunter:
I thank the Minister for his detailed response to
the amendment. I reassure him that I do not seek in any way to
undermine what the clause is about. However, I have listened carefully
to what he has said and I am still not clear whether he is giving me
the reassurance that I seek—this is the bottom line—that
the safeguards for child safety will be in place. Forgive me if he was
yet to come to that, but I am concerned that it should be absolutely
clear before he concludes.
Mr.
Sutcliffe:
I am grateful to the hon. Gentleman. The hon.
and learned Member for Harborough chided me earlier about the notes
that are prepared for Ministers, and their ability to put on the record
all that is needed and to ensure that nothing is missed. It is
important that we ensure that everything that should be on the record
is on the record for when people look back on the debates. However,
even though I feel that I am reiterating many of the points, I reassure
the hon. Member for Cheadle that this is about equalising the
relationship between private and public sector providers. We are not
giving any new powers to the private or public sector, but providing
the flexibility requirements that we need to deal with offenders
better.
The hon.
Gentleman asks for assurances. Clearly, we want to ensure that all the
current protection measures will be in place and that the appropriate
checks will be made on the staff who go through the private sector.
Clearly, they will go through a thorough selection process with the
contractors prior to employment and all the employment checks that he
asked to be carried out will be, including the CRB checks. It is
important that the contractor can prove that the training will be
provided to ensure that the person who will carry out the services is
adequately trained and supported.
The position is clear. In the
training centres in particular, we need to ensure that the public
sector provisions are in place. That includes those covering how
officers are trained, and their abilities and powers to carry out their
duties competently and appropriately and to ensure that the safeguards
and checks are met. I hope that those assurances give the hon.
Gentleman the opportunity to support the clause.
I want to refer back to the CRB
checks. The hon. and learned Member for Harborough talked about what
might be on the national identity register, referring to the
announcements made by the Home Secretary the other day. A great deal of
information is
kept not only in the criminal justice system but
across the Departments and elsewhere. The Secretary of State has
written to Cabinet colleagues to see whether it is time for them to
agree that we ought to consider such information, whether it is held by
the DFES, the Department of Health or whoever, to ensure that nothing
is missed. One of our great concerns about child protection and child
safety is that nothing should be missed. We have seen far too many
examples when information that could have been shared has not gone to
the appropriate person. It is in that context that my right hon. Friend
the Home Secretary made his announcement the other
day. I hope that I
have satisfied the Committee. I hope that I have given the reassurances
that the hon. Gentleman was seeking and that he will withdraw his
amendment.
3.45
pm
Mark
Hunter:
I am grateful for the Minister’s further
attempt to be very specific on the issues that concern us. I indicated
at the start that the amendment was a probing amendment and, knowing
the Minister to be a reasonable person and a man of his word, I am
prepared to accept the assurances that he has given. I beg to ask leave
to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mark
Hunter:
I beg to move amendment No. 30, in
clause 13, page 10, line 20, at
end add—
‘(4) The
Safeguarding Vulnerable Groups Act 2006 (c.47) is amended as
follows.
(5) After paragraph
3(1)(g) of Schedule 4 there is
inserted—
“(h)
contracted out
prisons”.’.
This,
too, is a probing amendment. It is needed to ensure that those working
in contracted-out prisons and secure training centres who undertake
activities relating to children receive adequate and appropriate
training in working with children and young people, and that they are
subject to the relevant requirements of the Safeguarding Vulnerable
Groups Act 2006.
No
doubt the Minister will seek to reassure me about this, but clause 13
gives auxiliary staff working in privately contracted-out prisons,
including privately run young offender institutions and secure training
centres, the power to carry out tasks equivalent to those now exercised
by operational support grades in public prisons. That includes
performing custodial duties and searching prisoners, although the use
of force is not permitted in carrying out those
activities.
There are
no explicit child safety protection and welfare safeguards within the
measures, and there is no mention of training that staff might receive
prior to working with children or of any vetting process that they
might undergo before they are allowed to do so. My concern is that that
might demonstrate a lack of foresight and care on the part of
Government in relation to the protection of the most vulnerable in our
society.
My final
point is that the Safeguarding Vulnerable Groups Act 2006 prevents
people on the barred list—including list 99 for teachers, the
Protection of Children Act 1999 list for those working in
childcare settings and a new list of people barred from
working with vulnerable adults—from working in establishments in
which they would come into close
contact with children. Once again, we are seeking
reassurances that there will be an appropriate belt-and-braces approach
to the important consideration of safeguarding children and vulnerable
groups. In the spirit in which I moved the last amendment, I look
forward to hearing the Minister’s response on this
matter.
Mr.
Garnier:
The hon. Gentleman has lighted upon a subject
that needs greater airing. While I accept that he will not press the
amendment to a vote, there is a lacuna in the way in which we deal with
the mentally ill in prison. If they come under the definition of
vulnerable groups, this affords me a brief opportunity to say something
about that.
As the
Minister knows, or ought to know, there are far too many people in
prison who ought to be under the care of the part of the national
health service that deals with mental illnesses. I shall not go into
historical analysis, because that is not strictly germane to the Bill,
but it is important that we should understand that in our adult prison
estate, there are people with mental
illnesses—
The
Chairman:
Order. I must stop the hon. and learned
Gentleman there. The amendment is about child care, so he is straying
extremely wide of the
detail.
Mr.
Garnier:
In the Inner Temple garden, there is a statue of
a small boy. Underneath, it says, “Lawyers too were children
once”.
The
Chairman:
Order. I do not think that that tactic will get
you round
me.
Mr.
Garnier:
I was hoping by that sleight of hand elegantly to
reverse in such a way that I could put my bottom back on my chair.
However, I shall have to do it rather more rudely. I fully accept what
you have said, Mr. Atkinson. I have highlighted the issue of
mentally ill prisoners, as there may be nowhere else in the Bill where
I can legitimately discuss it within the rules of the Committee. I
shall use any other opportunity that I can to highlight the
difficulties suffered by the Prison Service in looking after mentally
ill prisoners, be they youngsters or people over the age of 18. It is a
crying scandal, and we need to do something about
it.
The
Chairman:
Order. The hon. and learned Gentleman might
direct his attention to the new clauses, which will give him the
opportunity that he
seeks.
Mr.
Sutcliffe:
I will direct my attention to the amendment
tabled by the hon. Member for Cheadle. Many of the points that he
raised in the discussion on the previous amendment apply to this
proposal, too. I assure him that I want to be helpful, but amendment
No. 30 is both legislatively and operationally flawed. However, as it
is a probing amendment, I hope he will not take that criticism too much
to heart.
The purpose
of the clause is to deal with issues related to the activities of
non-certificated staff in private prisons. The amendment would apply
the regulatory framework established by the 2006 Act to everyone who
works in a private prison. The 2006 Act was debated in Parliament last
year and received Royal
Assent on 8 November. Consequently, all issues
relating to the safeguarding of vulnerable groups have been considered
very recently, and it was not felt necessary to include private prisons
in that measure. That is the correct approach and nothing has happened
in the interim to change
it The amendment
extends significantly beyond the scope of clause 13. It would cover all
staff of all grades in private prisons, whereas the clause is intended
to apply only to non-PCO grades—PCOs are those officers who have
direct day-to-day contact with prisoners. Under section 85 of the
Criminal Justice Act 1991, PCO grades must be authorised to
perform their duties by the PCO certification unit. As part of that
process, PCO staff are already subject to rigorous pre-employment
checks, which include a requirement to disclose all previous
convictions.
Although
non-PCO staff do not have the same contact with prisoners and are not
subject to the same certification requirements as PCOs, they are
cleared by the same unit as part of their pre-employment checks. Any
person who wants to work at a private prison receives a basic enhanced
police check. In addition, anyone who will be working in a juvenile
prison or who will come into contact with children or vulnerable adults
also undergoes that CRB check. The pre-employment checks are consistent
with those undertaken on equivalent grades in the public sector, where
the amendment would not apply. An additional bureaucratic check is not
necessary or justified, as existing safeguards on staff suitability are
adequate.
The clause
already limits the range of custodial duties that a non-PCO grade can
perform and submits those tests to parliamentary scrutiny. The
Secretary of State will have to specify in an order subject to the
negative procedure the activities that a worker may be authorised to
carry out. The list in the clause specifically excludes the use of
force.
A non-PCO has
to be separately authorised at establishment level to carry out any
task that is listed in an order. Such an authorisation can be given
only by a director, where appropriate, and can be made subject to
limitations or conditions. In determining whether an individual should
be authorised or whether an authorisation should be limited or made
subject to conditions, a director will need to satisfy himself that an
individual has an appropriate level of experience and expertise in
order to carry out the listed tasks in question, which is an inherent
requirement of any such power. When a director makes a decision on the
appropriateness of an individual for a particular task, he will have in
mind the contractual penalties, including financial penalties, and the
damage to reputation that operational failures in private prisons
incur.
I trust that
what I have said gives the hon. Gentleman the reassurance that he
requires. His amendment is unnecessary, and I hope that he will
withdraw
it.
Mark
Hunter:
In the spirit in which it was tabled, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
13 ordered to stand part of the Bill.
| 
