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Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Macaulay of Bragar, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Tomlinson, L.
Tunnicliffe, L.
Varley, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.54 pm

Clause 19 [Powers of director of a contracted out prison]:

Lord Ramsbotham moved Amendment No. 29:

The noble Lord said: My Lords, it is unfortunate that this amendment was originally tabled by the noble Baroness, Lady Gibson. It would remove a clause which has long needed to be reviewed. When we originally looked at the whole idea of private sector prisons in 1991, it was decided that there

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should be a public sector representative in those prisons to monitor compliance with the contract.

When I was chief inspector, I was often conscious that the relationship between the director of the prison—in many cases, someone who had been a governor of a public sector prison—and the controller was difficult because of one particular factor, which was that in the 1991 Act it was agreed that one activity should remain in the hands of the public sector: the adjudication of prisoners. That was because adjudication involved punishment, which was the responsibility of the state. I do not believe that has changed; nor do I believe that any suggestion that the requirement for controllers who are, in effect, contract monitors in private sector prisons has gone. In some of the reports of my successor as chief inspector, she says that she has been concerned about the number of times that private sector companies have been tempted to fudge figures to appear to comply with contracts and not be liable to sanctions. In the treatment of offenders, that simply must not be tolerated.

What does not appear in the Bill is the suggestion, which I hope the noble and learned Baroness the Attorney-General will be able to comment on, that there are two public sector monitors in each private sector prison at present. The number will allegedly be cut to one because it is assumed that adjudication takes a day—it does not. Also, if done properly, contract monitoring takes more than one monitor. Therefore, rather than try to play around with words, it is appropriate to remove this clause and leave the status quo: leave the state responsible for punishment and leave contract monitors in place to fulfil their role of supervising what is done on the public’s behalf by the private sector. I beg to move.

Lord Elton: My Lords, I have necessarily stayed out of the discussion on this Bill until now, owing to pressure of underwork. Memories of our debates in 1991 were so sharp and poignant when I heard what was being proposed in Clause 19 that I felt I had to come, reluctantly, to your Lordships’ House to express my dismay.

As I recall, the support of wavering Conservative Peers like myself was solicited by the Government of the day—and by their Home Office spokesman the noble Earl, Lord Ferrers, whom we all hope to see back with us before too long—for the proposal that two pairs of eyes from the public sector would see what was going on and that things that should not be known in public were not being done in secret. The focus of this concern was adjudication—how fair and appropriate their punishments were to the people concerned.

When you take freedom from a citizen, you assume a terrible responsibility. When you take it from more than 80,000 prisoners, it becomes enormous. When a significant proportion of those are handed over to an organisation other than the state it becomes necessary to retain some hold on what is done. As I understand it, Clause 19, by transferring the right of adjudication to a governor, makes the monitor no longer necessary for the functioning of the prison. The monitor is

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necessary for its fair functioning, but not necessary for its economic functioning. This reminds me of what the noble Lord, Lord Ramsbotham, said a moment ago about the danger of figure-fudging. Contractors have targets to meet—haven’t we all these days?—otherwise they are in breach of their contract. Therefore, it is very important that the statistics, which reveal the performance against the target, are managed suitably for the contractor. In other words, there is a strong conflict of interest between the interest of the state in fairness and the interest of the contractor in profit. That may be an odd sentiment to express from the Conservative Benches, but we are dealing with matters of principle, and I believe that this House consented to this form of prison on the principle that there should be representatives of the public sector in it to act as referees and whistleblowers, and to protect the defenceless against injustice where the private sector was clearly motivated on occasion to commit injustice. For those reasons, I wholly support the amendment.

6 pm

Lord Graham of Edmonton: My Lords, I have some sympathy for the amendment to remove Clause 19. I had the privilege of representing prison officers in Parliament for some years, and I visited many prisons, so I have had experience of the nature of prisons and the prison environment. I also have a deep respect for the dedication of prison officers and prison governors. The background against which the existing legislation was made is very interesting. I draw attention particularly to punishment being the responsibility of the state. In that context, although many things can be parcelled out, privatised or sub-divided, ultimately—I am grateful for what the noble Lord, Lord Elton, said about his memory of the atmosphere and the intention at the time—the Minister should be obliged to tell us where this is coming from.

What consultation has there been, particularly with the Prison Officers’ Association and the Prison Governors Association? I would like to hear not only that there has been consultation with those two bodies but that they approve of the intention behind the clause. I do not think that they do; in which case, what is being gained? More than once, the Attorney-General has stressed that this is not driven by efficiency savings but is designed to make the system more efficient. How much more efficient would the system be if we were told that prison governors are burdened and that, in the absence of the clause, they would continue to have the responsibility to adjudicate; indeed, that they were screaming blue murder because of the weight on them? Whom have the Attorney-General and her advisers consulted? Someone told me that they had taken the views of the CBI. The Attorney-General can deny that—indeed, I hope that she will be able to do so—but I would be very worried if the views of industry were to reign over those of the people at the sharp end.

Let us make no mistake; despite the disputes involving prison officers and prison governors about conditions, pay and all the rest of it, they are at the

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front line, or the last line, of defence in this country in dealing with many, many people. We know that many people in prison should not be there, but a great many others should be and are determined to make the lives of other inmates bad. I was once asked at Wakefield prison to peep through the window in the door to the cell of a man who had murdered two prisoners while in prison. That is the kind of person with whom we are dealing. Prison officers are prisoners just as much as prisoners themselves, because they are locked in the prison estate and have a terrible job.

On equity, it is eminently right to say that the persistence of the clause is a condemnation of the present situation, which, as the noble Lord, Lord Elton, said, was built 16 years ago on the foundation of a major step—the introduction of privatisation into the prison estate—about which many of us still have questions. It is, however, now a fact of life, and I hope that the Attorney-General can satisfy the House that the alarm bells are ringing without reason. If she cannot, however, I very much hope that she will say something to allay my concerns about being party to a situation about which I am not very happy.

The Lord Bishop of Chester: My Lords, I have considerable sympathy for what the noble Lord, Lord Graham, has said and the questions that he has asked. As an occasional but regular visitor to prisons, the prisons with which I have been most impressed, certainly in the past 10 years, have been private and have been of great benefit to the system as a whole. However, the atmosphere in a prison can very easily become difficult for both prisoners and staff, so the principle of a co-operative regime, particularly when sensitive issues such as punishment arise, is a good one. Even in private prisons, the principle of the involvement of state officials in the punishment of those who are in prison is at least to be considered and quite possibly insisted on.

Lord Rosser: My Lords, I did not intend to speak to the amendment. Indeed, I may have misunderstood it. If I have, it will become painfully obvious in the next couple of minutes. As I understand it, the clause intends that the director of a private sector prison should be in much the same position as a governor of a public sector prison when it comes to disciplinary issues, and that is what is objected to and what the amendment seeks to remove. If I have got that part of the amendment right, surely a director of a private sector prison would have to work under basically the same instructions and rules as a governor of a public sector prison would in exercising such powers. Presumably the training requirements would therefore be similar to ensure that the individuals concerned were competent to exercise these responsibilities. Presumably, then, this is almost a professional question of being able to exercise these powers appropriately.

I also understand that private sector prisons are not exactly divorced from inspections. They are still subject to them, and must operate under the terms of a contract and in a particular manner. If they fail to do so, they leave themselves open to challenge. If my understanding of the position is basically right—it may turn out to be wrong—I really do not see what

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the difficulty is in enabling the director of a private sector prison to have very similar powers to those of a governor of a public sector prison in this regard.

Baroness Stern: My Lords, I hope to be able to answer the question that the noble Lord, Lord Rosser, has just asked and to explain why this is such a very bad idea. I should make it clear that this debate is not about whether private prisons are a good thing, whether they are value for money or whether they should be more publicly accountable. It is, as the noble Lord, Lord Elton, said, about the propriety of suggesting that the power of punishing prisoners should be handed to a non-state agent, and about the possibility that handing this power to the director of a private prison will lead to conflicts of interest, whether actual or perceived. Justice must be done and seen to be done. If the procedures are not seen to be fair and legitimate, the state of a prison will suffer because of the unhappiness of the prisoners and the way in which they feel they are treated.

I remind the House that the punishments available for prison directors to impose after adjudication are substantial. Directors may no longer add days to a prisoner’s sentence—that has to be done by a visiting magistrate and applies to the more serious offences. However, prison directors can confine prisoners to their cells for 21 days; exclude them from work so that they get no wages for up to 21 days; stop their earnings or make deductions from their earnings for up to 84 days; remove them to segregation for up to 28 days; and institute forfeiture of any privileges under rule 8 for up to 42 days.

The significance of that is that prisoners can be demoted on the incentives and earned-privileges scheme and so may have their entitlement to visits from their families reduced. Furthermore, the imposition of those punishments can have wider implications for prisoners. The power to reduce family visits affects Article 8 of the ECHR, on the right to family life, as given effect to by the Human Rights Act. The frequency and level of punishments given in an institution will go on parole reports and will affect whether prisoners receive parole. The Parole Board takes those matters into account when deciding whether it is safe to release prisoners; therefore, there is an effect on the right to liberty.

Directors of private prisons are in a difficult and very different position from a public prison governor. They have to take account of the requirements of their employers—that is, the company, which is usually far from the day-to-day concerns of the prison—the requirements of the contract and the need to avoid fines and penalties that such prisons attract if they fail to carry out the contract. It also puts the private prison director under strong pressure and would make it very difficult for even the most well trained and longstanding prison director to be seen to operate fairly and without being accused of conflicts of interest. It seems to me that private prison directors would not want to be put in that position, and this House certainly should not allow that to happen.

Baroness Gibson of Market Rasen: My Lords, I have a great deal of sympathy with the amendment. The noble Baroness, Lady Stern, has encapsulated

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what I feel about it. I have been approached by the Prison Governors Association, the Prison Reform Trust and the Prison Officers’ Association on this, and they all support the amendment. Very often, when the Prison Officers’ Association is mentioned one thinks only of state prisons, but it also has members in private prisons. I do not want to repeat what others have said, but I support the amendment.

Lord Wallace of Saltaire: My Lords, I strongly support the amendment. An underlying principle, which we should not cross, is at stake. This is not a criticism of private prisons. We are all conscious that, on the whole, the introduction of private prisons has had a beneficial effect on prisons in this country. Next week, I am to visit a prison whose reputation is among the best of the private prisons in this country.

The principle at stake is the relationship between the state and the private sector: the proper management of public/private partnerships. The state should have the monopoly of force, and punishment is a use of force. Earlier, I spoke about the difference between the American model of privatisation and the Nordic model of a mixed economy of public/private partnerships. In the United States, they are very relaxed about private contractors carrying guns: mercenaries operating on behalf of the state. We are not happy with that. The state should retain the monopoly of force. If we cross that line we enter a very different world.

As the noble Baroness, Lady Stern, said, there are potential conflicts of interest. The lines of authority and accountability of a private prison governor and his unavoidable concept of role and responsibility are, to some extent, necessarily different from that of a governor of a state prison. That is in the nature of a public/private partnership and, therefore, it is entirely appropriate that proper tension between the public and the private sectors should be built into the system. The amendment would retain that; Clause 19 would cross that line.

6.15 pm

Lord Judd: My Lords, the amendment raises a very important principle. I shall be interested to hear how my noble and learned friend replies. The noble Lord, Lord Wallace, has just made a comparison with the United States, which has a more relaxed attitude towards private contractors carrying guns and the rest. That is about security; in the prison system, we are talking about justice. The amendment raises the issue of whether we want a system in which justice is operated by people with a commercial interest in the operation. I make no criticism—I have no ground for making any—of any director of a private prison at the moment, but a crucial principle arises about justice: how it should operate and how it can convincingly be seen to operate, as has already been said. My noble and learned friend should not dismiss the amendment lightly. In view of her new responsibilities, I shall be interested to hear how she deals with the point about justice.



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Baroness Scotland of Asthal: My Lords, my noble friend is right to emphasise the importance of justice, but also important is parity of treatment in relation to how we house and deal with those who are sentenced to periods of imprisonment. I want to clear up a few points as there may have been some misunderstanding.

The noble Lord, Lord Elton, is concerned that we are removing the role of the controller, as a third pair of eyes, from the process. I can reassure him that we are not doing that. Controllers will no longer conduct adjudications, but will still monitor the conduct of them by private prison staff; for example, they can even attend individual adjudications if they want to. That is not changing. We agree with him on the need for that scrutiny to be maintained.

The consultation process was raised by my noble friend Lord Graham. I know how seriously he addresses the issue. I can reassure him that we have consulted the Prison Governors Association and there has been further consultation with contractors and existing controllers. Plans have been developed in discussion with the public sector Prison Service to ensure parity with its procedures. My noble friend Lord Rosser was correct in the premise that he made about the way in which we seek to deal with the matter. These are sensitive issues. I assure the House that the Government recognise that sensitivity and the nature of the changes contemplated in the clause.

We are also aware of the need to ensure the proper and fair treatment of prisoners, as I made plain. With that in mind, we have taken careful measures to ensure that our approach is balanced by appropriate and robust safeguards. The powers proposed to be transferred by the clause are essential tools for governors in public sector prisons, used to maintain order, control and discipline. As part of our clearly expressed desire to ensure parity of performance between the public and private sectors, we feel that this is precisely the right time to extend the powers, so that they apply equally in private prisons. Specifically, the changes proposed will enable directors to be fully responsible for order and control within their establishments. Controllers, who currently undertake the task on behalf of directors, will then be freed up to spend more time monitoring the quality and value of the service provided by the contractor. Consequently, the change will ensure that the disciplinary system in private prisons operates as speedily and effectively as possible, but also that better oversight of the whole range of services is being delivered by the contractor. This will, I hope, bring real benefits to prisons and prisoners generally, and to the public, with better value for money.

I was much encouraged by what the right reverend Prelate said, because in his capacity he has had the advantage of going into a number of prisons, both public and private. His experience of a number of private-sector prisons reflects that of the noble Lords, Lord Elton and Lord Ramsbotham, and others.

The powers are already highly regulated by secondary legislation—not least the prison rules and the detailed instructions in the Prison Discipline Manual and Her Majesty’s Prison Service standards,

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which private prisons are, respectively, statutorily and contractually bound to follow, so that they exactly reflect those that apply in public sector prisons. We are simply creating a parity of powers between directors and governors—neither will have any greater freedom than the other as they perform identical tasks. That is why my noble friend Lord Rosser was right.

We are also going to require contractually that, before directors can adjudicate, they must have passed the equivalent training course as their public sector colleagues. I know that this is a matter of complaint but, as most directors are ex-Her Majesty’s Prison Service governors anyway, they are already likely to be very experienced in the task. My noble friend Lady Gibson has complained about the number of private prisons that have—some would say—purloined for the private sector some of the best from Her Majesty’s Prison Service. That is always an issue of tension. However, the controller will ensure that the rules that apply to one are adhered to by the other.


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