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The noble Baroness, Lady Stern, is right about a strong safeguard, which already exists, in cases of a disciplinary offence that may result in the award of additional days. The requirement, under Article 6 of the European Convention on Human Rights, is that such cases must be dealt with by an independent adjudicator rather than by the government controller, in both public and private sector prisons. This proposal does nothing to alter that. My noble friend Lord Judd asked me about my new role conjoined with my old role and my thoughts on that. I hope that he will be content that I believe that we are being consistent. This proposal does not in any way alter that. Such a safeguard was not in place in 1991, when controllers were first introduced. That would have been of concern to the noble Lord, Lord Elton—that controllers were going to be adjudicating on issues where there might be a positive punishment—but we do not have that difficulty now.

Some are also concerned that a director’s impartiality would be jeopardised by commercial considerations, as we heard today. There is, however, no evidence in how they use their existing powers to support that. The noble Baroness, Lady Stern, rightly referred to perceptions, as opposed to the reality. But there is no evidence on which that perception can justifiably be found. Most notably, the incentive schemes, which often reward good behaviour, are much more imaginative than those in the public sector. However, even if a director were minded to adopt a commercial approach, the requirements of the Prison Discipline Manual, the detailed procedures to be followed, the route of appeal, plus scrutiny from the controller, the IMB, the inspectorate and the ombudsman surely offer us all some reassurance that they would be immediately detected.

The powers of segregation and control are already available to directors in an emergency, when they simply seek retrospective approval by the controller. The clause will simply enable those existing powers to be exercised by the director acting alone, even where there is no emergency. There is no evidence whatever to suggest that directors have misused the existing

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powers since the first private prison opened in 1992. Indeed, private prisons have been credited with a key role in improving decent treatment and the conditions of prisoners in both the public and private sectors over the past 10 years. Such a view is not my own, I hasten to add, but comes from no less a source than Martin Narey, the former director-general of Her Majesty’s Prison Service.

I also urge the noble Lord, Lord Ramsbotham, to reflect on his own decision, when Chief Inspector of Prisons, to tackle the press about their inaccurate portrayal of the privately owned and operated HMP Doncaster. He may recall that at the time he was so impressed on an inspection by the capability of the director and staff that he personally intervened to demand that the press recognise the excellent practice to be found at the prison. It must have had quite an effect on him, because as recently as January, at the Conservative evidence session for the Bill, he described HMP Doncaster as:

I use not my words but those of the noble Lord, Lord Ramsbotham, to reassure the House that this is not something that we need to be frightened of. I will not pretend that private-sector performance is always excellent. There have been recent problems at Her Majesty’s Prison in Rye Hill, for example, which the inspectorate has reported on and were the subject of the “Panorama” TV programme. My point is that similar problems occur in some public sector prison as well. Good or poor practice is not the sole preserve of one sector or the other. If further evidence of the quality of private prisons is needed, I would invite your Lordships to attend to the most recent prison performance ratings, published by the National Offender Management Service, which shows that eight of the 11 private prisons are rated at level 3 or above on the four-band system. This is a ratio that compares well with the public sector. The noble and learned Lord, Lord Woolf, has previously described private prisons as models of what prisons should be like.

That is a lot of reinforcement of what I hope is a safe and satisfactory move forwards. Restrictions may have been prudent when private prisons were first introduced; I believe that they were. However, considering the good operating record of the private sector since then, we believe that they are no longer justified. Finally, some would argue that these tasks are essentially functions of the state. That was said by the noble Lord, Lord Wallace, and others. The arguments around the propriety of imprisonment being conducted by private companies were debated at length in 1991 and we all know the outcome. To rehearse them again now is perhaps unnecessary.

In conclusion, we have seen over time a great deal of evidence which reassures us that what we are doing is not a step too far. I hope that the House will feel that the safeguards I have outlined in some detail,

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which will enable these powers to be effected properly—the contractual mechanisms, the detailed operating procedures, the scrutiny of the controller, the IMB and the ombudsman—suffice to give noble Lords comfort. The proposals are safe and, I suggest, a logical next step in balancing the procedures between public and private sector prisons to the ultimate benefit of both prisoners and the general public. Further, for the avoidance of doubt, the term “prison” in relation to this clause also applies to young offender institutions, although at present no YOIs are being run privately. On that basis, I hope that noble Lords will feel that this is not such an avant garde move as they might initially have feared.

6.30 pm

Lord Elton: My Lords, will the noble and learned Baroness answer three questions with an eye on future Administrations? First, am I right in thinking that, so long as Clause 19 is in the Bill, no future Administration could withdraw controllers from the private sector? Secondly, if that clause is removed from the Bill, would it be possible to remove controllers from the private sector? Thirdly, is the noble and learned Baroness aware of the enormous comfort that it gives me and many others to see that she is still looking after this brief? I congratulate her on her other job.

Baroness Scotland of Asthal: My Lords, first, I thank the noble Lord. There is nothing in what I have said to indicate an ability to precipitously or improperly remove the controller. We believe that that function is an essential one. We want the controllers to be able to monitor with an even greater degree of precision what is happening on the ground in these prisons so that we can be assured that the quality we wish to see delivered in all our prisons is in fact delivered, whether they be public or private institutions.

Lord Ramsbotham: My Lords, I did mention the suggestion that one of the two controllers was going to be removed. Can the noble and learned Baroness confirm or deny whether that is going to happen?

Baroness Scotland of Asthal: My Lords, I have no information to indicate that one or two of the controllers are going to be removed. I have made it plain that as far as I am aware they will not be removed. They are no longer going to do the adjudications, but that is a different issue. They will still be there to monitor what is happening. If I find that anything I have said is inaccurate, I will notify the noble Lord and make the appropriate correction immediately. But I do not believe that I am in error.

In transferring these duties across to contractors, we accept that we will be required to fund this new work requirement. NOMS is currently considering options as to how to do this, and one of those is to reduce the head count in controllers’ teams by the equivalent of one post to fund the expense the contractor will incur. To suggest that this will remove all benefits in transfer, however, would not be accurate. So there is

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no suggestion at the moment, but I shall certainly be happy to write to noble Lords. I think they would prefer me to do that rather than read out the whole of the note.

Lord Ramsbotham: My Lords, I thank all noble Lords who have taken part in this debate, particularly the noble Lord, Lord Graham of Edmonton, and the noble Baroness, Lady Gibson. Noble Lords have considered every aspect of this problem in their contributions. It all comes back to the question of justice and punishment, and who is responsible for delivering it. With respect to the noble and learned Baroness, I do remember all that I said about Doncaster, which at the time was being called “Doncatraz”, although it certainly was not. I also remember saying things about other prisons, including Altcourse, Blakenhurst and others which were doing extremely well. But with respect, that was not the point. It was not about adjudications, but about the way the prison was being run: the treatment of and conditions for prisoners on which I was required to report. I gave examples of why it was better, and I was intrigued about what was said about doing things which the private sector could do but the public sector could not. Personally, I think that this remains one of the issues which the public sector should keep a rein on.

We have just passed an amendment which suggests that this Bill needs to be looked at again. I hope that, by raising this issue in that context, this is another of the issues which will be looked at very carefully when the Bill is considered to see whether it needs to be strengthened and improved. I should like to withdraw the amendment at this stage, with the possibility of bringing it back at Third Reading. By then I will have seen the note. I say that because you cannot carry out the oversight we all would like to see if the number of controllers is reduced. With that proviso, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Conveyance of prohibited articles into or out of prison]:

Lord Bassam of Brighton moved Amendment No. 30:

The noble Lord said: My Lords, we now turn to an amendment originally tabled in Committee by the noble Baroness, Lady Anelay, which concerns Clause 22 and the granting of authorisation for bringing prohibited list A items into and out of prisons. We recognise that there are times when both prison staff and those from external agencies may need to take certain otherwise prohibited articles into or out of prisons in order to carry out essential duties. The prohibited items are broken down into three clear bands grouped according to seriousness. While the legislation as currently drafted permits authorisation to be granted by the Secretary of State or by Prison Rules for lists B and C, only the Secretary of State can grant authorisation for list A items. The amendment seeks to allow authorisation to be granted for list A items by Prison Rules. As noble Lords will be aware,

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list A items are the most serious category and include controlled drugs, explosives and firearms.

We did not consider when first drafting the clause that there were any routine circumstances in which there might be a need for authorisations for list A articles. However, having carefully considered the noble Baroness’s amendment, I am now convinced that there are circumstances, such as in medical emergencies, in which we might wish to grant authorisations under the Prison Rules. As such, I am content with the amendment as tabled by the noble Baroness in Committee as we think it achieves a useful purpose and will improve the working of the Bill. I also want to put on the record my gratitude to the noble Baroness for tabling such a helpful amendment. I beg to move.

Baroness Anelay of St Johns: My Lords, I rise simply to thank the Minister for accepting the amendment I tabled in Committee. He will not be surprised if I tease him just a little. When I put forward this amendment in Committee, the Minister said that not only would the Government consider it, but that they would also come back with a drafting that fits the Bill. I am just pleased to note that not only have the Government accepted the principle, they have also for once accepted my drafting. I am grateful to the Minister.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 31:

(a) for the sidenote there is substituted “Independent monitoring boards”;(b) in subsection (2), for “board of visitors” there is substituted “group of independent monitors”;(c) after subsection (2) there is inserted—“(2A) The groups so appointed are to be known as independent monitoring boards.”; and(d) in subsection (3), for “boards of visitors” there is substituted “independent monitoring boards” and for “a board of visitors” there is substituted “an independent monitoring board”.

The noble and learned Baroness said: My Lords, I shall speak also to the amendments in my name listed in the group. Noble Lords will recall that when we debated independent monitoring boards in Committee in response to the amendment tabled by the noble Baroness, Lady Stern, my noble friend Lord Bassam pointed out that the amendment required drafting changes but made clear that the Government were willing to consider it. This we have now done and the amendments before us today are the result of that consideration.

Since 2003, boards of visitors have been known as independent monitoring boards, a title that more

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accurately reflects their role as monitors and emphasises their independent status. Some 1,800 board members—unpaid volunteers—appointed from the local community visit their designated establishments on a regular basis to monitor the care and treatment of those held in prison. Their commitment to this difficult, vital and highly responsible role is quite inspiring. When I was the Minister responsible for offender management and, therefore, prisons, I had the privilege of meeting a number of board members and I have never failed to be deeply impressed by their commitment and energy.

The amendments give statutory effect to two important changes recommended by a working group established in 2000 under the chairmanship of Sir Peter Lloyd, to review boards of visitors. These recommendations were, essentially, as follows: first, to change the title “board of visitors” to “independent monitoring board” more accurately to reflect the role and functions of these bodies; and, secondly, to remove the statutory requirement that at least two members of the board needed to be magistrates.

For the avoidance of any doubt, let me make it clear that the removal of the requirement for at least two members of a board to be magistrates is in no way intended to erode the significant contribution that magistrates make to the work of boards. The Government fully accept that justices of the peace bring valuable experience and knowledge to the role of board members. The clause seeks only to remove a requirement that was introduced when magistrates had an adjudicatory function in prisons. That function was removed some 15 years ago and the requirement is therefore now obsolete. Magistrates will continue to be welcome on boards as members of the local community. All the amendment does is to ensure that the boards are not required to select a magistrate in preference to another applicant who may be better suited to IMB work and who can bring special knowledge and skills of which the board is in short supply.

I am grateful to the noble Baroness, Lady Stern, for proposing the amendment. I hope this version will receive her support and the support of the House.

I understand that the Magistrates’ Association was a little concerned about these issues. The boards have many excellent magistrate members, as I have indicated, and I am delighted that the Magistrates’ Association regards continued involvement in this area of work as a worthwhile activity for its members. I know that Sir Peter Lloyd, who is president of the National Council of Independent Monitoring Boards, has been in contact with the Magistrates’ Association to explain the difficulties with the current requirement and how it does little to help the many magistrates who are well suited to board work and make successful applications for places. The Government share Sir Peter’s view that magistrates can bring valuable knowledge and skills to the boards. Applicants from the magistracy will always be welcome, especially those whose background and experience would help to make boards more diverse. I understand that Sir Peter has already invited the Magistrates’ Association to liaise with the IMB

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national council on how this might be achieved. So perhaps I may say, cheekily, that if any Members of your Lordships’ House are minded not to apply, I ask you to desist. I beg to move.

The Lord Bishop of Worcester: My Lords, in declaring an interest as Sir Peter Lloyd’s designated successor, I thank the noble and learned Baroness for her remarks about independent monitoring boards. Although I completely agree with the proposed amendment, it will be important to ensure that over the national big picture a significant number of magistrates make that contribution. I am sure that will continue to be the case.

Baroness Anelay of St Johns: My Lords, I am grateful to the noble and learned Baroness—I had the great fortune to be first to congratulate her yesterday when we had the Statement—for the way in which she put the Government’s case on this amendment on the record. She will know that when I saw the drafting of the Government’s amendment I immediately contacted the Magistrates’ Association, as is my custom in these matters, simply to check that it was content and had been consulted. There were concerns that perhaps there had been an unintentional slip between the two sides and that, as a result, there was a misunderstanding that an agreement had been reached that had not been reached with the magistrates. I am delighted that the Government have taken prompt action and that Sir Peter Lloyd has ensured that the correct information has been made available to both parties.

I heard the noble and learned Baroness say that the magistrates now regard their continued activity as valuable. They always thought it was vital to the work of the independent monitoring boards. Their original concern was simply that their right to have two places was being removed. I appreciate the way in which the noble and learned Baroness has made it clear that Sir Peter Lloyd welcomes wholeheartedly—and, indeed, encourages—applications from magistrates, particularly from those whose background and experience would help to make boards more diverse. It is on the basis of the way in which the noble and learned Baroness has put her case that I am able to support the amendment today.

6.45 pm

Baroness Stern: My Lords, I thank the noble and learned Baroness the Attorney-General—I really just wanted to say that. I am grateful that the amendment was accepted, reformulated so that it was in proper words and will now go on to the statute book.

Baroness Scotland of Asthal: My Lords, it gives me great pleasure to endorse the glowing comments that have been made by the magistracy. We would be very upset indeed if magistrates did not understand how vital their role can be, and has been, on these boards. I am grateful to the noble Baroness, Lady Stern. I am also grateful to the noble Baroness, Lady Anelay, for what she said about the reassurance that this gives. We would all wish to celebrate the contribution of

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magistrates and the last thing we would want to do is discourage such fantastic volunteers from continuing their volunteering.

On Question, amendment agreed to.

Lord Ramsbotham moved Amendment No. 32:

“Disability equality duty“(d) in the case of a public authority listed in Part V of Schedule 1, 1st December 2008.”“PART V

The noble Lord said: My Lords, before I speak to the amendment standing in my name and that of my noble friend Lord Low of Dalston, who is in America, I should like to make good a failure from earlier in the day. I am sure that all Members of the House will join me in congratulating the noble Baroness, Lady Anelay, on her announced elevation on her party’s Front Bench. We are all delighted about that.


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