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These notes refer to the Offender Management Bill as brought from the House of Commons on 1st March 2007 [HL Bill 47]
OFFENDER MANAGEMENT BILL
1. These explanatory notes relate to the Offender Management Bill as brought from the House of Commons on 1st March 2007. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. In December 2003, Lord Carter published his report, "Managing Offenders, Reducing Crime", which recommended the establishment of a National Offender Management Service (NOMS) with the aim of reducing re-offending through more consistent and effective offender management. A key recommendation of the report was that more effective service delivery could be achieved through greater use of competition from private and voluntary providers, and through a separation of the line-management of public sector providers and the commissioning of services. In January 2004, the Government published its response, "Reducing Crime, Changing Lives", which broadly accepted Lord Carter's conclusions, and NOMS was established in June 2004.
4. Under the current legislation the statutory duty to make arrangements for the provision of probation services rests exclusively with the local probation board. Probation services cannot currently be provided by any other organisation unless sub-contracted directly by probation boards themselves. This Bill will transfer to the Secretary of State the statutory duty to make arrangements to provide probation services, so enabling him to commission from providers in the public, private and voluntary sector. It will establish probation trusts, as public sector providers with whom he may make such arrangements. The Secretary of State may contract only with a probation trust or other public body for the giving of assistance to courts.5. The initial proposals for these changes were set out in "Restructuring Probation to Reduce Re-offending" in October 2005. The responses, along with the Government's proposals for taking the policy forward, were published in March 2006 in "Working with Probation to Protect the Public and Reduce Re-offending". The Government's intention to introduce greater diversity of provision was reiterated in both "A Five Year Strategy for Protecting the Public and Reducing Re-offending" (published in February 2006) and "Rebalancing the criminal justice system in favour of the law-abiding majority" (July 2006). In August 2006, the Government published "Improving Prison and Probation Services: Public Value Partnerships", which outlined the vision for contestability and indicated the pace and scale of change envisaged. A consultation document on the establishment of probation trusts was issued on 13th February 2007.
6. The Bill will also:
7. The Bill generally applies to England and Wales only. Some repeals and consequential amendments also extend to Scotland and Northern Ireland, as does the power in clause 35 to make consequential amendments.
8. The Bill is in four Parts.
Part 1 - New arrangements for the provision of probation services
9. Clauses 1 to 10 make new arrangements for the provision of probation services. They give to the Secretary of State the responsibility to ensure the provision of probation services and enable him to contract with others to do this. The clauses also abolish local probation boards and allow the establishment of probation trusts with whom he may contract.
10. Clause 11 makes it clear that the Secretary of State, bodies dealing with offender management and other entities with an interest in offender management may engage in reciprocal information sharing. Under the clause, information sharing may take place so long as it is necessary or expedient for the purposes of effective management of offenders.
11. Clause 12 provides a power to repeal clause 4.
Part 2 - Prisons
12. Clauses 13 to 17 remove some of the differences in the ways in which contracted-out prisons operate by giving their directors and prisoner custody officers powers comparable to those which governors and prison officers in directly-managed prisons already possess. Clauses 18 to 21 reform the existing offence of bringing proscribed articles into a prison and create a new offence of taking photographic images inside a prison. Clause 22 removes the requirement for prisons to have a medical officer. Clause 23 clarifies who may be authorised to undertake limited searches of prisoners.
Part 3 - Other provisions about the Management of Offenders
13. Clauses 24 to 26 provide for polygraph testing of offenders on licence from a sentence of imprisonment of 12 months or more for a specified sexual offence, describe the conditions under which polygraph testing may take place and set out that evidence obtained from polygraph testing cannot be used in criminal proceedings.
14. Clause 27 amends section 202 of the Criminal Justice Act 2003 to allow the Secretary of State to accredit programmes for the purposes of programme requirements.
15. Clause 28 amends section 41 of the Crime and Disorder Act 1998 to allow the Secretary of State to ask the Youth Justice Board to assist him in the exercise of certain functions and it also provides that the Secretary of State may restrict the way in which the Youth Justice Board exercises certain functions.
16. Clause 29 amends the arrangements for early release from the custodial part of the Detention and Training Order.
17. Clause 30 widens the category of accommodation in which a period of detention and training may be served.
18. Clause 31 enables the Secretary of State to direct that a term of detention under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 226 or 228 of the Criminal Justice Act 2003 may be treated as a sentence of imprisonment when the offender has reached the age of 18.
19. Clause 32 extends the provisions of the Criminal Justice and Public Order Act 1994 with regard to the authority for transporting detained young persons between relevant premises.
COMMENTARY ON CLAUSES
PART 1: PROBATION SERVICES
Clause1: Meaning of "the probation purposes"
20. This clause sets out various purposes that govern the probation services that are to be provided under Part 1.
21. Subsection (1) defines "the probation purposes." It broadly replicates the existing provisions in the Criminal Justice and Court Services Act 2000 ("the 2000 Act"), as supplemented by the Local Probation Boards (Miscellaneous Provisions) Regulations 2001 (S.I. 2001/786) and as amended to reflect provisions on conditional cautions in the Criminal Justice Act 2003.
22. Subsection (2) adds further detail to the general purposes and is also based on the 2000 Act as amended. Subsection (2)(b) is new and puts beyond doubt that the provisions also cover the work which providers of probation services do in relation to offenders in prison.
23. Subsection (3) is new and clarifies that the probation purposes include the supervision and rehabilitation of persons convicted of an offence outside England and Wales who are serving all or part of their sentence in England and Wales.
24. Subsection (4) defines the terms "authorised person", "conditional caution", "community order", "suspended sentence order" and "victim" which are used in this clause.
25. Subsection (5) enables the Secretary of State to extend these purposes by regulations which will be subject to the negative resolution procedure.
Clause 2: Responsibility for ensuring the provision of probation services
26. This clause sets out the functions of the Secretary of State.
27. Subsection (1) states that it is the function of the Secretary of State to ensure that sufficient provision is made for probation purposes (as described in the previous clause) and for probation functions of the Secretary of State in other legislation. Similar functions to those set out in this section currently rest with local probation boards under section 5 of the 2000 Act.
28. Subsection (2) states that the Secretary of State is to discharge his function in relation to any probation provision by making arrangements under clause 3. Those arrangements will normally involve the making of contracts with a provider of services, but there is also the possibility of non-contractual arrangements or of the services being provided by the Secretary of State.
29. Subsection (3) requires the Secretary of State to have regard to aims in the exercise of his probation functions under subsections (1) and (2).
30. Subsection (4) sets out those aims, which replicate the ones currently set out in section 2(2) of the 2000 Act
31. Subsection (5) makes clear that the Secretary of State does not need to take action under this clause in relation to any particular probation service if he is satisfied that adequate provision will be made under other arrangements.
32. Subsection (6) requires the Secretary of State to consult at least once a year on the probation provision to be made for the following year. It is envisaged that consultation will be conducted through regional commissioners and that those consulted will include stakeholders at regional and local level, including sentencers, providers of probation services, providers of custodial services, other criminal justice agencies, local authorities and bodies involved in the provision of services which contribute to the reduction of re-offending.
Clause 3: Power to make arrangements for the provision of probation services
33. This clause gives details of how the Secretary of State will make arrangements for the provision of probation services.
34. Subsection (1) states that this section applies to any probation provision which the Secretary of State considers should be made under section 2(1).
35. Subsection (2) states that the Secretary of State may make contractual or other arrangements with any other person for the making of any probation provision. In most cases, it is envisaged that arrangements will be made under contract but this subsection does allow for other possibilities.
36. Subsection (3) clarifies that contractual or other arrangements may require or authorise the other party to:
37. Subsection (4) enables the Secretary of State, if he considers it appropriate, to provide probation services himself, acting through any members of his staff, including prison officers. In most cases, it is anticipated that the Secretary of State will make arrangements with others to deliver probation services but this makes it possible for prison staff, for example, to deliver probation services in the community. This could be helpful in terms of bridging the gap between custody and the community.
38. Subsection (5) defines providers of probation purposes as either the person with whom the Secretary of State makes arrangements or the Secretary of State, where he makes provision through members of his staff.
Clause 4: Restrictions on certain arrangements under section 3(2)
39. Clause 4 places a restriction on the ability of the Secretary of State to make contractual or other arrangements under section 3(2).
40. Subsection (1) states that contractual or other arrangements relating to restricted probation provision may only be made with a probation trust or other public body.
41. Subsection (2) defines restricted probation provision as the giving of assistance to courts in determining the appropriate sentence to pass, or making any other decision, in respect of a person charged with or convicted of an offence.
Clause 5: Power to establish probation trusts
42. This clause gives details of the Secretary of State's power to establish probation trusts.
43. Subsection (1) states that the Secretary of State may, by order:
It is not envisaged that any geographical area for which a trust is to act will be specified in the order establishing the trust. This will be a matter for the contract agreed with the Secretary of State.
44. Subsection (2) specifies that the purposes of a probation trust must consist of, or include, the making or performance by the trusts of contracts with the Secretary of State in line with clause 3(2).
45. Subsection (3)(a) specifies that the purposes may also enable the trust to enter into contracts with parties other than the Secretary of State for the provision of probation services. In practice, it is envisaged that the majority of a trust's activity will be under contract to commissioners acting on behalf of the Home Secretary, but this subsection allows trusts the flexibility to enter into contracts with others, including other probation trusts, where appropriate, provided that the activity concerned is part of their core purposes.
46. Subsection (3)(b) specifies that these contracts may also cover probation-related activities in relation to service courts.
47. Subsection (3)(c) provides that the purposes of a probation trust may also include any other purposes specified in regulations made by the Secretary of State.
48. Subsection (4) clarifies that the purposes set out in the order may be expressed in more specific terms than those used in subsection (2) and (3).
49. Subsection (5) clarifies that a trust may carry out activities relating to contracts, including before and after contracts are agreed; this enables it to bid for and negotiate contracts in the first place and to carry out any activities necessary to wind up business after a contract has expired.
Clause 6: Power to make grants for probation purposes
50. This clause enables the Secretary of State to make payments (other than under the contractual or other arrangements referred to in clause 3) to a trust or any other person for the section 1 purposes. It is envisaged that contractual or other arrangements will be the main source of probation funding but this clause allows for situations where this may not be appropriate; a possible example might be a pilot or research project.
51. Subsection (2) makes clear that the Secretary of State may attach conditions to such grant payments.
Clause 7: Officers of providers of probation services
52. Existing legislation (e.g. section 2(1)(b) of the 2000 Act) refers to "officers of local probation boards". As local probation boards are abolished, a new term is needed. This clause sets out provisions relating to "officers of providers of probation services".
53. Subsection (1) defines an "officer of a provider of probation services" as an individual who is for the time being authorised to carry out the functions of an officer of a particular provider of probation services.
54. Under subsections (2) and (3) an individual may be authorised as an officer of a provider of probation services by the Secretary of State or (where the provider is not the Secretary of State) by a provider of probation services who has been authorised to do so.
55. Subsection (4) defines the functions referred to in subsection (1).
Clause 8: Abolition of local probation boards and transfers of property etc and staff
56. Subsection (1) provides for the abolition of local probation boards constituted under section 4 of the 2000 Act.
57. Subsection (2) gives effect to Schedule 2 which contains provisions relating to transfers of property etc or staff in connection with the abolition of local probation boards or the implementation or termination of arrangements under clause 3.
Clause 9: The inspectorate
58. This clause makes consequential amendments to the provisions establishing the Inspectorate of the National Probation Service to reflect the fact that the National Probation Service will cease to exist when the local probation boards are abolished and that the inspectorate will in future need to inspect a range of providers of probation services.
59. Subsection (1) renames Her Majesty's Inspectorate of the National Probation Service for England and Wales "Her Majesty's Inspectorate of Probation for England and Wales", and renames its Chief Inspector "Her Majesty's Chief Inspector of Probation for England and Wales".
60. Subsection (3)(a) amends section 7 of the 2000 Act to include the inspection of the provision of probation services under clause 3. Subsection (3)(b) makes an amendment to allow the Secretary of State to give further directions related to the probation purposes referred to in Clause 1, conferring further functions on the inspectorate.
Clause 10: Approved premises
61. This clause sets out provisions relating to approved premises. It is closely based on existing provision in section 9 of the 2000 Act.
62. Subsection (1) is based on section 9(1) of the 2000 Act. It enables the Secretary of State to approve premises providing accommodation for persons on bail or for the supervision or rehabilitation of offenders.
63. Subsection (2) enables the Secretary of State to make regulations concerning approved premises. This subsection is based on section 9(3) of the 2000 Act, under which the Criminal Justice and Court Services Act 2000 (Approved Premises) Regulations 2001 (S.I.2001/850) were made.
64. Subsection (3) enables the Secretary of State to make payments in relation to the operation of approved premises. They may also make payments in relation to their construction, enlargement or improvement if they are approved premises already or the works are being carried out with a view to their approval.
65. Subsection (4) is additional to the provision in the 2000 Act and makes clear that the Secretary of State may attach conditions to the payments in subsection (3).
66. Subsection (5) clarifies that subsection (3) does not prevent the Secretary of State from using his powers under clauses 2 to 6 to commission new premises and the running of them.
67. Subsection (6) clarifies that references in other enactments to an approved bail hostel or approved probation hostel are to be read as a reference to approved premises. This replicates subsection (2) of the 2000 Act.
68. Subsection (7) makes a consequential amendment to paragraph 2(7) of Schedule 2 to the Private Security Industry Act 2001 to make clear that those involved in the management of approved premises, who may need to determine who has access to those premises, are not caught by the licensing requirements applicable to manned guards.
Clause 11: Disclosure for offender management purposes
69. This clause clarifies the powers of certain bodies to share data for any purpose mentioned in subsection (4).
70. Subsections (1) and (2) list the entities who are able to benefit from the power to share data.
71. Subsection (3) provides the power to share data but only if the disclosure is necessary or expedient for purposes mentioned in subsection (4). That enables the bodies listed in subsection (1) to share data with one another. It also enables disclosure between those bodies and the bodies listed in subsection (2). The clause has no application to disclosures between bodies listed in subsection (2), but there may be powers elsewhere that cover these.
72. Subsection (4) specifies the purposes for which disclosures are permitted by the clause. These include "the probation purposes (see clause 1), "the performance of functions of the Secretary of State, other persons to whom clause 11 applies and persons listed in subsection (2), provided the functions relate to prisons or prisoners, and other purposes connected with the management of offenders.
73. Subsection (5) expands upon the meaning of functions, prisons, and prisoners, and confirms that young offender institutions and secure training centres, together with those persons detained within them, are treated as prisons or prisoners.
74. Subsection (6) confirms that the power to exchange information by virtue of this clause does not affect any existing power to share data that exists independently of the clause (e.g. section 34 of the Serious Organised Crime and Police Act 2005 (c.15)) and that any such exchange is subject to the existing safeguards regarding data protection.
75. Subsection (7) creates a power for the Secretary of State to amend any enactment which would otherwise prevent the sharing of data permitted by this clause. Clause 33 provides that this order making power is subject to the affirmative resolution procedure.
76. Subsection (9) defines relevant contractor for the purposes of subsection (2) and confirms that those contracted to provide prison, young offender institution, secure training centre and related escort services are within the ambit of the clause.
77. Subsection (10) defines "enactment" for the purposes of subsection (6) so as to include any subordinate legislation within the meaning of the Interpretation Act 1978.
Clause 12: Powers to repeal section 4
78. Clause 12 provides a power for the Secretary of State to repeal clause 4 by order which (by virtue of clause 33) will be subject to affirmative resolution.
PART 2: PRISONS
Clause 13: Power of search in contracted out prisons and secure training centres
79. Subsection (1) of this clause amends section 86(2) of the 1991 Act which prevents prisoner custody officers performing custodial duties at a contracted-out prison from conducting anything more than a "rub-down" search of a visitor. The amendment removes this restriction and allows a prisoner custody officer to require a visitor he wishes to search to remove an item of clothing which is not only an outer coat, jacket or gloves. However, the amendment makes clear that a prisoner custody officer shall not be able to require that an intimate search is carried out. This subsection also amends section 86 by clarifying that the power to search will be exercised in line with relevant Prison Rules and Young Offender Institution Rules.
80. Subsection (2), amends section 9 of the Criminal Justice and Public Order Act 1994 by removing an equivalent restriction placed upon a custody officer at a secure training centre and expands his power to search in line with subsection (1). Subsection (2)(a) provides that the power to search will be exercised in accordance with relevant Secure Training Centre Rules.
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