APPENDIX 4: OFFENDER MANAGEMENT BILL —
GOVERNMENT RESPONSE
Letter to the Chairman from the Rt Hon. Baroness
Scotland of Asthal QC, Minister of State, Home Office
1. I am grateful for your careful consideration
of the Offender Management Bill, as set out in the Committee's
7th Report of Session 2006-2007. This letter sets out how we propose
to take forward the points you raised.
Power to establish trusts - clause 5
2. I note your view that the power in clause
5(3)(c) should either be limited on the face of the Bill or be
subject to the affirmative procedure. I am therefore tabling an
amendment to make the power subject to the affirmative resolution
procedure.
3. You also express concern about the fact that
the power to establish and dissolve trusts in clause 5 is not
subject to a parliamentary procedure, and feel that more information
is needed on what we have in mind. You have helpfully drawn this
to the attention of the House and I look forward to discussing
our plans in more detail in Committee.
Disclosure for offender management purposes -
clause 11
4. Subsection (2) of clause 11 lists all organisations
and persons whose core business is the day to day management
of offenders. The Bill currently creates delegated powers to amend
this list, under subsection (2)(h), in order to allow for future
changes to the way offender management functions are discharged.
5. In your report
you raised a concern about the power to amend other legislation
provided by clause 11(7). This power provides the Secretary of
State with the capacity to amend any future enactment which might
prevent the sharing of data the sharing of which would otherwise
be authorised by this clause. We acknowledge the validity of this
concern and propose to table an amendment to this clause during
the Committee stage as follows. The power to amend legislation
which would prevent disclosure of information the sharing of which
is otherwise authorised by this clause would be limited so that
only existing legislation or legislation passed in the same parliamentary
session as the Bill can be amended by secondary legislation. This
revised power will not extend to acts or secondary legislation
passed in future Parliamentary sessions.
Power of authorised person to perform custodial
duties and search prisoners (clause 15
6. In your report you recommend that clause 15
(which enables non-Prison Custody Officers to be authorised to
perform task that may involve custodial duties) be amended so
that an indication is given of the sorts of tasks which might
be listed in a Statutory Instrument (SI). Whilst we acknowledge
the reasons for suggesting such an approach, we are reluctant
to adopt this approach for some important reasons. Firstly, we
have adopted the current approach in order to provide maximum
flexibility so as to enable private prison staff to mirror the
deployment patterns of their public sector equivalents. Seeking
to list on the face of the Bill some of the tasks that may be
authorised in secondary legislation will reduce that flexibility
and will beg the question why all such tasks are not listed in
primary legislation. That is in direct conflict with the rationale
underlying the clause and would might risk compromising operational
flexibility in future if one of the limitations set out in statute
needed to be removed or the view was taken that other limitations
should be added to primary legislation.
7. We prefer a clean break whereby the limits
of the authorising power are clear on the face of the Bill but
that the specific tasks that can authorised under it are left
solely to secondary legislation. We do not think that such an
approach sacrifices transparency or deprives Parliament of an
appropriate level of scrutiny. Adopting the suggest approach here
will not remove the need to list all task in an SI and any such
SI may still be debated by Parliament if it so wishes. Secondly,
the suggestion fails, in our view, fully to take into account
existing safeguards already included or implicit in the clause.
Of course, any task that might be thought appropriate for a member
of staff who is not a prisoner custody officer must be set out
in a statutory instrument subject to the negative resolution procedure.
In addition, when deciding whether a person should be authorised
to do a listed task a director will have to assess whether they
are appropriate to perform that task. Part of this assessment
will require an examination of a person's experience, competence
and appropriateness to do the listed task in the particular circumstances
in which s/he will be expected to perform it. Any authorisation
given can be made subject to conditions or limitations if necessary
and no authorisation can provide non-Prison Custody Officers with
the power to use force.
8. As such, we believe that it is appropriate
to proceed in the manner we propose without prejudicing public
scrutiny.
Conveyance of prohibited articles into or out
of prisons:
9. You have commented on clause 19 of the Bill
which introduces the order making power in section 40A(6) of the
Prison Act 1952, allowing the Secretary of State to add or remove
list A or B items from the prohibited lists. You do not consider
these arrangements inappropriate but you point out that section
40A(6) contains a Henry VIII power, the need for which was not
addressed in the Delegated Powers Memorandum. You have
drawn these provisions to the attention of the House and I look
forward to discussing our plans in more detail in Committee.
Authorisations
10. You also draw the attention of the House
to the fact that clause 20 as drafted enables the Secretary of
State to grant authorisations relating to List B or C articles,
either administratively or by prison rules and that in relation
to articles in list A the option of prison rules is not available.
You feel that the reasons for these options have not been fully
explained in the memorandum and I will ensure that we are able
to do so in Committee.
Effect of polygraphy condition:
11. You have recommended that, in order to provide
an appropriate level of scrutiny to the making of rules, Rules
relating to the conduct of polygraphy sessions (clause 25 (6))
should be made by statutory instrument subject to negative procedure,
rather than by the Secretary of State. We accept on balance that
this offers greater scrutiny to the procedure and propose to amend
the Bill accordingly.
12. I think that the amendments we are proposing
will result in an improved Bill and I am grateful for the Committee's
assistance.
9 May 2007
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