Offender Management Bill

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 on—at 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 drafting of 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 currently 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 deployedis 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 grades—OSGs—to 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 arePCO 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 accountability—an issue that has been raised by noble Lords opposite—and 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 Majesty’s 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 and—to pick up the important issue of training, which many noble Lords have referred to—adequately 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 that do 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.