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As well as the suggestion that adjudications could now be carried out by the director on the grounds that directors have proved themselves just as capable of running an establishment as the governor of a private sector prison, I understand that it has been suggested that one of the two monitors or controllers could now be removed, which would be a cost-cutting exercise. That would be enormously unwise because the duties of monitoring a prison, particularly as they become more and more complex, with more and more contracts to be monitored, are more than a full-time occupation. I have talked to some of the contractors, who are deeply concerned about this. Looking at this amendment and the whole way in which the private sector prisons are conducted, it is important that the issue of monitoring the contract by people who are there is looked at very seriously so that wethe publiccan be confident that those prisons are really being conducted in the way in which we would expect them to be. That is why we have ourthe publicsmonitor there on our behalf.
Baroness Gibson of Market Rasen: I thank the Prison Officers Association for briefing me on the amendment. The Bill is silent about which restricted activities the Home Secretary plans to allow non-prison custody officers to perform. I understand that that will be revealed only when the Home Secretary publishes the order, which will be subject to negative procedure in relation to which restricted activities a worker may be authorised to carry out. Once the order has been passed, it will be for the director of the private prison to instruct non-prison custody officer staff to carry out some, if not most, of the currently restricted activities. Amendment No. 104 is, I believe, an attempt to clarify at least some of the restricted activity areas that may be the subject of any such authorisation and place them in the Bill. As such, I support it.
Lord Hylton: I know from experience in England and Northern Ireland that the way in which a prison handles its visitors is crucial to its reputation. Furthermore, the prison rules state very clearly that everything possible must be done to maintain the relationship between the prisoner and his immediate next of kin and family. On those grounds, I support Amendment No. 104 and shall also support Amendment No. 105 when we come to it.
Baroness Howe of Idlicote: I support the amendment and thank the Prison Governors Association for its briefing. I reiterate the point that I made on the previous occasion: many visitors will be the kith and kin of people who are inside prison. As such, they are likely to be fairly vulnerable and may react in inappropriate ways to certain methods of restraint.
Lord Bassam of Brighton: Before I get into the body of Clause 15, it may be worth saying a few words on another matter. I think that, inadvertently, the noble Viscount, Lord Bridgeman, sowed seeds of potential confusion in addressing issues which would have been more properly bound up in a debate that we probably will not now have on Clause 16, which relates to the removal of controllers and adjudications and so onat least, that was the perception. We should focus on that because it will help us in terms of the order of debate, although I was grateful for the intervention of the noble Lord, Lord Ramsbotham, and shall say something about the work of the controller.
It is important to dispel the notion that we are somehow removing existing restrictions. In my view, we are simply removing a confusion that arises from the 1991 Act. This does not really have anything to do with the responsibility of controllers. As I said, Clause 16 deals with that, and, as we know, there are no amendments before us on that issue.
Before I get into the content of Clause 15 and the related amendments, I should also say something about recent reports on private prisons by HM Inspector of Prisons, because that was raised during this short debate. I cannot accept the assertion that somehow the private sector is going backwards. The perception is that private prisons have worked well and that there is improvement in that sector, as there is in public sector prisons. I do not pretend that there are no problems in either sector, as clearly reports indicate that from time to time there are, and those problems have to be properly dealt with. Here, we are seeking to address the difficulties of dealing with drugs, mobile phones and other illicit items that come into prisons. We must focus on adopting packages of measures to ensure continuous improvement across both sectors. However, I am grateful for noble Lords comments on those reports because they relate to important and significant issues.
Perhaps I may bring us back to Clause 15. The changes that we are making in relation to private prisons in general, and specifically in this clause to the range of tasks that can be undertaken by non-PCO grades, are intended to resolve what we see as unnecessary and inefficient differences between the public and private sectors. We are trying to create parity in terms of operational flexibility and staff deployment between equivalent staff grades in both sectors. Neither side will have greater power than the other. The way in which staff need to be deployed is constantly evolving in response to changing operational demands. Issues apply equally regardless of whether the prison is publicly or privately operated.
The public sector already employs operational support gradesOSGsto work alongside prison officers. These OSGs perform a limited range of custodial duties in support of the prison officers. The equivalent of an OSG in a private prison is an auxiliary officer or AO. Owing to restrictions in the Criminal Justice Act 1991, 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 that original Act has created unhelpful confusion over what operational duties non-PCO staff can undertake. This position becomes potentially ever more unclear as the public sector, which is free of any restrictions imposed by legislation, makes ever greater use of OSGs to support prison officers in their custodial work. We wish to remove the disparity between how equivalent grade staff are deployed across the two sectors. This will resolve unhelpful procedural differences and remove the commercial advantage held by HM Prison Service as an OSG is paid less to do the same work. I stress that we are not looking to give a non-PCO any power beyond those already held by their public sector counterparts.
The amendment addresses an issue quite properly raised by the Delegated Powers and Regulatory Reform Committee in its recent report on the Bill. At first glance I willingly concede that this amendment appears helpful, as it would place on the face of the legislation a clear indication of the sorts of work we are proposing to allow non-PCO staff to undertake. The tasks listed may well form part of our initial list of duties to be permitted. On closer inspection, however, the amendment is unnecessary and unhelpful. New subsection (2) in Clause 15(2) already provides an order-making power to allow the Secretary of State to list tasks that may be performed. We contend that there is nothing in that power that prevents the listing of the tasks covered by the amendment, so it is far from obvious why the amendment might be thought necessary.
If the purpose of the amendment is to seek clarification of our intentions, we are happy to confirm that the tasks that staff are likely to perform are similar to the sorts of activity specified in the amendment. During the drafting of the clause, great care was taken to ensure that our approach struck the correct balance between the need to ensure proper public accountabilityan issue that has been raised by noble Lords oppositeand necessary operational flexibility, which is something that we all recognise. By specifying types of work in primary legislation, we will risk destroying the very flexibility that this power is created to provide.
First, we need the private sector to be able to deploy its staff in the same way as equivalent grades in the public sector. No doubt that was in the mind of the noble Lord, Lord Waddington, way back in the early 1990s. No such restriction applies to Her Majestys Prison Service, so it can continue to deploy in innovative ways which the private sector would not be able to match. I cannot see the sense in that.
Secondly, we need to future-proof the legislation. Although we may currently want to allow non-PCO grades to do both the tasks listed in the amendment, we cannot be sure that this would always be the case. Including these tasks but not others rather begs the question why we do not list other tasks that we currently envisage being included in an initial list of activity. There is no obvious answer to that question if we retain the reference to some tasks in primary legislation but not others. In that regard, mentioning specific tasks on the face of primary legislation begins to have the appearance of effectively listing them in that legislation, which is directly contrary to the desired approach. If operational requirements change and we wished to place greater emphasis on other tasks, or less emphasis on the specific tasks of entry control and control rooms, it would be much easier to add or remove this emphasis via an order-making power subject to negative procedure than it would be to have to amend primary legislation to do so.
We need to be cautious of an approach that does not clearly define what the task would allow, as that leaves matters subject to interpretation by contractors themselves, which could be unhelpful and would be contrary to the apparent intention of the amendment. In this case, for example, the amendment would specifically permit non-PCO staff to allow visitors into and out of the prison but not staff, which neither makes sense nor matches what OSG grades are already doing in public prisons.
We believe that we have built in appropriate safeguards on the sort of work that can be done by non-PCO staff by virtue of the order-making power we have proposed, and that that satisfies the need for accountability as well as the necessary balance with operational flexibility. Additional safeguards at establishment level exist in the form of a requirement that the director authorises the person to do the work after satisfying himself that the individual is competent andto pick up the important issue of training, which many noble Lords have referred toadequately trained to carry out those tasks. Also, the controller has to be able to observe operations to ensure that no unauthorised tasks are undertaken.
I apologise for taking so long to go through this, but I wanted to ensure that the Committee fully understood exactly what was being put forward in the amendments and the difficulties with creating a legislative straitjacket in terms of fixing on non-PCO staff constraints, which does not make a lot of sense. If we did it in the Police Service where we have police community support officers, I am sure that noble Lords opposite would challenge us and say that we were over-regulating. We do not need it in the Prison Service; I do not think it will work.
Viscount Bridgeman: I am grateful if the amendment has had the unexpected effect of causing Clause 16 to be debated. We shall look carefully at the Ministers reply to this very involved debate, and in the mean time I beg leave to withdraw the amendment.
The noble Viscount said: This amendment, too, seeks to improve Clause 15. It turns the focus on to subsection (2) and would implement a further safeguard to ensure that any worker in a contracted-out prison carrying out a restricted activity had the correct training. It seems highly surprising that currently there is no requirement on the face of the Bill for appropriate levels of training to be undertaken prior to executing custodial functions.
I am sure that I do not need to remind noble Lords of the figures for the worst-case scenario in a prisonwhere a prisoner dies while in custody. I do not wish to make a judgmental comment on the case of Adam Rickwood, who committed suicide a number of hours after he was subjected to a restraint technique. Although the use of that technique might be acceptable, what gives cause for concern is that it was clear that he was suffering from mental problems. I note that an Oral Question has been tabled on this matter for tomorrow, so the matter might come up. That was just one of the 2,000 deaths in custody between 1995 and 2005.
These examples highlight to us the overall risks in the prison estate, which is full of a set of extraordinarily challenging individuals who often pose the greatest harm to themselves. I would not claim that even the most perfect training would prevent such incidents, because there are too many variables in the system. However, where we can establish safeguards and ensure high standards of practice, it is clear that we should do so. That is why this amendment is so importantif not the wording, then the principleand why I sincerely hope that the Minister will be able to accept it. I beg to move.
Lord Bassam of Brighton: I recognise the background of and basis for this amendment tabled by the noble Lords opposite. I share their concerns to ensure that staff are competent to do their jobs. I reiterate that not only do I share those concerns but the Government are completely committed to the maintenance of the highest standards of delivery, because that is the only way in which we can achieve the outcome that we all wish.
Similar amendments were proposed in another place but were rejected, as it was accepted that placing training requirements in the Bill is unnecessary in the light of safeguards already contained within and outside the clause. It is important to remember that no such formal requirements on training apply to equivalent public sector staff performing the same duties, which is the issue that we rehearsed earlier, and that none of the powers proposed is different from those exercised by equivalent public sector staff. Even if we ignore those factors, we contend that the successful track record of private companies in delivering custodial services already offers assurance that they can be relied on to use competent and properly trained staff.
The private sector is no different from the public sector in seeking to ensure that it benefits from a trained and competent workforce. All private prison contractors require any newly appointed staff to undertake training prior to commencing their duties. That also applies in the public sector. Training may vary between contractors, but the goal is the same: a workforce with the necessary skills to deliver the contract. Before being able to do any of the tasks that Parliament will have had the opportunity to determine, a non-PCO grade would have to be authorised by the prison director to be a competent person to do so, and one of the key tests that a director would employ would be to satisfy himself that the person was suitably trained. In private prisons, unlike in the public sector, the contract enables financial penalties to be levied for operational failures, which is a powerful incentive for directors to use only staff with the necessary skills and training. It is also worth remembering that the controller can examine training packages, attend sessions and observe outcomes first hand.
The amendment is also vague because it gives no definition of what appropriate means in this context, nor does it make clear who would make that assessment. In reality, such considerations are clearly already being undertaken by the director as the clause is drafted.
The noble Baroness said: I will also speak to Amendment No. 91. We return to the conflict of interest provisions in paragraph 2 of Schedule 6 and their relationship to the declaration of interest provisions in paragraph 13.
Amendment No. 89 would insert the words direct or indirect into the definition of a conflict of interest in paragraph 2(6). At present, the definition includes financial or other interests. When the Minister in another place explained this, he said that or other was designed to catch a member of a persons family running a company that could be affected by the introduction of personal accounts. I put it to the Minister that that is not an interest of the person at allit is not an other interestit is the interest of someone else, and so the requirement that a person appointed as a chairman or non-executive does not have a conflict of interest would not be met.
I can readily understand that a relationship with another person could be an other interest, but not the fact that that other person had some business interest in personal accounts. If the Minister is going to claim that the relationship is the other interest, does its existence mean that all the financial interests of that person get drawn in? The drafting is vague because, if it does refer to relationships, it is unclear where they begin and end. Do siblings count or just spouses? What about infant or adult children? What about parents and grandparents? What about co-habitees?
I contrast that with the provisions in paragraph 13, which deals with declarations of interest. In that paragraph, the phrase direct or indirect is used in relation to the relevant interest, which is why I have drafted it into Amendment No 89. Paragraph 13 also imports the Companies Act definitions of persons connected with a director, which seem to give some certainty about the relationships that are important.
I hope that the Minister will reflect on the ambiguity of paragraph 2 and on Amendment No. 91, which requires that if there has been a declaration of interest under paragraph 13, it should be notified to the Secretary of State. There is a difference between a conflict of interest and a declaration of interest, but I think that it is a question of degree rather than real difference. At some point along a spectrum, a declaration of interest will also be a conflict of interest. My amendment is designed to ensure that the Secretary of State, who by paragraph 2(2) has to keep the issue of conflicts of interest under review, has the relevant information. There does not appear to be any other way for the Secretary of State to find out about declarations of interest. I beg to move.
Baroness Morgan of Drefelin: I thank the noble Baroness for her thoughtful and helpful contribution, which has allowed this short debate to take place. I hope that I can assure noble Lords that we consider the role of the chairman and non-executive members to be crucial to the effective operating of the authority. Not only will they bring a wealth of knowledge and experience to the authority, but they will also, in carrying out the non-executive functions, provide an important independent role.
The Secretary of State will be looking for candidates of the highest calibre when making these public appointments. That will include ensuring that a non-executive does not have a conflict of interest that is,
That is made clear in paragraph 2 of Schedule 6. Sub-paragraphs (6) and (7) define a conflict of interest and state the parameters that the Secretary of State must use in deciding on the suitability of non-executive members.
Amendment No. 89 proposes that the Secretary of State must consider a direct or indirect conflict of interest when appointing the chairman or another non-executive. The inclusion of direct or indirect in the criteria that the Secretary of State should consider does not add anything. As I have explained, the definition of conflict of interest is to be found at sub-paragraphs (6) and (7) and it includes direct and indirect conflicts of interest. Paragraph 2 already provides sufficient assurance that the non-executive members will be free from a conflict of interest. I therefore do not want to include that additional requirement.
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