Clause 13

Offender Management Bill – in a Public Bill Committee am 3:15 pm ar 18 Ionawr 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Powers of authorised persons to perform custodial duties and search prisoners

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs)

I beg to move amendment No. 39, in clause 13, page 10, line 13, at end add—

‘( ) A worker at a contracted-out prison shall be subject to qualification requirements that the Secretary of State shall by regulation define.’.

Clause 13 deals with the powers of authorised persons to perform custodial duties and search prisoners. As with earlier amendments, the amendment in my name and that of my hon. Friend the Member for Ceredigion is probing. It addresses the issue of the qualification requirements that the Secretary of State might choose to impose on workers, at contracted-out prisons in particular. I seek to establish precisely what training, qualifications and vetting process will be required of the staff of a contracted-out prison before they are given the special status established in the clause and allowed to perform duties previously reserved for prisoner custody officers.

That information is needed for a number of reasons. First, as with probation, the quality and effectiveness of the Prison Service depends on the individuals working in it. They need to know how to deal effectively with prisoners, how to supervise them with care for the safety of the public and how to help with the rehabilitation process.

At present, somebody wishing to become a prison officer has to undergo a vetting process, a selection test and specific training. There is continual assessment and support from experienced staff. The clause opens up the profession to allow other staff members who have not undergone the necessary training and vetting procedures to work on tasks for which that training is considered vital. For example, supervising prisoners and therefore protecting the public requires a thorough understanding of security checks and searching procedures. Dealing with prisoners who are a danger to themselves or are in danger from other prisoners requires a level of inter-personal skills for which prison officers are tested in the recruitment process but which other staff members do not necessarily have.

We are anxious to gain an assurance from the Minister that those involved in restricted activities such as searching prisoners and visitors and other custodial tasks will have the necessary training and skills. It is essential that training is mandatory and that the supervision of those receiving on-the-job training is vigorous and carried out by experienced PCOs.

Furthermore, it is essential that those working in private, contracted-out prisons can exercise powers to search and detain only within a clear framework of  accountability, as exists in the statutory sector, because of the new powers allowing auxiliary workers to undertake previously restricted tasks such as the searching of children. Will the Minister address that issue?

I hope that nobody will mistake this for a trivial issue. The Howard League for Penal Reform, which has expressed its concerns about the change, found that in one secure training centre alone more than 1,500 searches were carried out, some of which included the instruction to remove all clothing. We must ensure that those carrying out such searches, who will not necessarily be trained and qualified PCOs, are fit to do so. The Children’s Society and Barnardo’s expressed similar concerns in a joint document, writing:

“We are anxious to receive assurances that any powers given to authorised persons to perform custodial duties and search prisoners will, where relevant, be accompanied by robust training requirements, child safety protection and welfare safeguards.”

I share that anxiety and would like an assurance from the Minister that the staff who will perform previously restricted duties will be adequately vetted and trained under the current Department for Education and Skills guidelines for working with children, “Common Core of Skills and Knowledge for the Children’s Workforce”. Will the Minister assure as that those safeguards of child safety will be in place and that auxiliary staff who gain special status will be CRB-checked, checked against the new vetting and barring system put in place under the Safeguarding Vulnerable Groups Act 2006 and trained according to the most recent DFES guidelines for working with children?

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 3:30, 18 Ionawr 2007

I thank the hon. Gentleman for the spirit in which he spoke to the amendment.

The difference between public sector and contracted-out prisons is unnecessary and inefficient. There are different operating practices between the two sectors, which is sometimes detrimental to the operations and security of prisons. The Criminal Justice Act 1991 specifies that a custodial duty should be performed by a PCO. However, the 1991 Act does not explicitly define the scope of a custodial duty, which creates unhelpful potential for confusion about what staff other than the PCOs can do in a private prison.

The aim of this clause, alongside other amendments to the 1991 Act made by the Bill, is to clear up that confusion by providing a mechanism by which those tasks can be carried out by non-PCO staff who will be listed in a statutory instrument. Consequently clause 13 formally recognises that a non-PCO may, subject to the authorisation of the director, do tasks requiring the performance of some form of custodial duty. In order for a non-PCO to do such a task, it must be listed in a statutory instrument and the work must have been separately authorised by the director of the prison in which he or she works.

The public sector employees operational support grades will work alongside prison officers. Those OSGs will perform a limited range of custodial duties in support of the prison officers. The equivalent to a OSG in a private prison is an auxiliary officer. However, due to the restrictions of the 1991 Act, 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 the 1991 Act has created unhelpful   confusion over what operational duties non-PCO staff can undertake. The position becomes potentially even more unclear as the public sector, free of any such requirements, makes greater use of OSGs to support prison officers in the course of their custodial work.

The result is potential disparity between the two sectors in who is able to perform ostensibly similar tasks. As an OSG is paid less than a prison officer it gives the public sector a financial and competitive advantage over private contractors. It also provides a clear operational disadvantage by creating greater operational flexibility which it would be desirable to extend to private prisons. We are not seeking to provide non-PCO staff with any power beyond those held by their OSG-equivalent colleagues in the public sector. We are merely seeking to establish that it is sensible to allow both to have equal powers so as to ensure effective security and operational delivery.

To bring them in line with the equivalent public sector staff, staff in private prisons need to be able to do certain tasks that may involve the performance of a custodial duty. If we do not give them those powers, inefficiencies in operational management will continue, and transfer from one sector to another will be made more difficult. We are formally recognising the professional work already undertaken over many years by staff other than PCOs to support the effective running of a private prison. In exactly the same way as the OSGs have become a crucial part of the operating environment in public sector prisons, in support of prison officers, so auxiliary officers need to carry out a similar range of functions in private prisons.

It is important to remember that nothing in this clause will extend the boundaries of flexible staff deployment in private prisons any further than is already operating very successfully in the public sector. Indeed, it is only by virtue of the different employment status of staff in public sector prisons, rather than any tension in legislation, that this clause is needed at all. The public sector Prison Service has been able to create grades of staff other than prison officers to suit the changing operational environment that it faces, according to need and without any legislative restrictions on the range of custodial duties that those new grades will then perform.

If we are serious about giving effect to the principle of contestability across the prison estate, it is vital that this flexibility be given to the private sector too, subject to those safeguards which it is sensible to put inplace to ensure effective scrutiny of the resulting arrangements. Restrictions on who can perform custodial duties in private prisons mean that while the public sector can regrade duties of a supportive nature, such as gatekeeping and CCTV monitoring of prison officers, to allow other grades of staff to perform them on the grounds of operational expediency and cost-effectiveness, the private sector is required to persist with rigidly imposed and unjustified requirements to use PCO staff. Such restrictions are then passed on to the taxpayer when savings could otherwise have been made with no more risks to order and control than have applied in the public sector.

Amendment No. 39 seeks to require the Secretary of State to set unnecessary qualification requirements for non-PCO staff before they could be authorised to  perform a custodial duty. The aim of the clause is to reduce unduly restrictive limitation on those working in the private sector while ensuring that appropriate safeguards are maintained. Accepting the amendment would not only perpetuate unwanted differences in operational practice between the public and private sectors but introduce an extra difference: in the same way as PCOs can only formally carry out custodial duties, in future only those who met the requirements set out in a statutory instrument would be able to carry out duties listed under the power given by the clause. If we were to accept the amendment it would undermine the purpose of the clause. On the face of it, a requirement on the Secretary of State to make non-PCO grades subject to qualification requirements might appear to offer an assurance, but that would not be the case.

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs)

I thank the Minister for his detailed response to the amendment. I reassure him that I do not seek in any way to undermine what the clause is about. However, I have listened carefully to what he has said and I am still not clear whether he is giving me the reassurance that I seek—this is the bottom line—that the safeguards for child safety will be in place. Forgive me if he was yet to come to that, but I am concerned that it should be absolutely clear before he concludes.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

I am grateful to the hon. Gentleman. The hon. and learned Member for Harborough chided me earlier about the notes that are prepared for Ministers, and their ability to put on the record all that is needed and to ensure that nothing is missed. It is important that we ensure that everything that should be on the record is on the record for when people look back on the debates. However, even though I feel that I am reiterating many of the points, I reassure the hon. Member for Cheadle that this is about equalising the relationship between private and public sector providers. We are not giving any new powers to the private or public sector, but providing the flexibility requirements that we need to deal with offenders better.

The hon. Gentleman asks for assurances. Clearly, we want to ensure that all the current protection measures will be in place and that the appropriate checks will be made on the staff who go through the private sector. Clearly, they will go through a thorough selection process with the contractors prior to employment and all the employment checks that he asked to be carried out will be, including the CRB checks. It is important that the contractor can prove that the training will be provided to ensure that the person who will carry out the services is adequately trained and supported.

The position is clear. In the training centres in particular, we need to ensure that the public sector provisions are in place. That includes those covering how officers are trained, and their abilities and powers to carry out their duties competently and appropriately and to ensure that the safeguards and checks are met. I hope that those assurances give the hon. Gentleman the opportunity to support the clause.

I want to refer back to the CRB checks. The hon. and learned Member for Harborough talked about what might be on the national identity register, referring to the announcements made by the Home Secretary the other day. A great deal of information is   kept not only in the criminal justice system but across the Departments and elsewhere. The Secretary of State has written to Cabinet colleagues to see whether it is time for them to agree that we ought to consider such information, whether it is held by the DFES, the Department of Health or whoever, to ensure that nothing is missed. One of our great concerns about child protection and child safety is that nothing should be missed. We have seen far too many examples when information that could have been shared has not gone to the appropriate person. It is in that context that my right hon. Friend the Home Secretary made his announcement the other day.

I hope that I have satisfied the Committee. I hope that I have given the reassurances that the hon. Gentleman was seeking and that he will withdraw his amendment.

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs) 3:45, 18 Ionawr 2007

I am grateful for the Minister’s further attempt to be very specific on the issues that concern us. I indicated at the start that the amendment was a probing amendment and, knowing the Minister to be a reasonable person and a man of his word, I am prepared to accept the assurances that he has given. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs)

I beg to move amendment No. 30, in clause 13, page 10, line 20, at end add—

‘(4) The Safeguarding Vulnerable Groups Act 2006 (c.47) is amended as follows.

(5) After paragraph 3(1)(g) of Schedule 4 there is inserted—

“(h) contracted out prisons”.’.

This, too, is a probing amendment. It is needed to ensure that those working in contracted-out prisons and secure training centres who undertake activities relating to children receive adequate and appropriate training in working with children and young people, and that they are subject to the relevant requirements of the Safeguarding Vulnerable Groups Act 2006.

No doubt the Minister will seek to reassure me about this, but clause 13 gives auxiliary staff working in privately contracted-out prisons, including privately run young offender institutions and secure training centres, the power to carry out tasks equivalent to those now exercised by operational support grades in public prisons. That includes performing custodial duties and searching prisoners, although the use of force is not permitted in carrying out those activities.

There are no explicit child safety protection and welfare safeguards within the measures, and there is no mention of training that staff might receive prior to working with children or of any vetting process that they might undergo before they are allowed to do so. My concern is that that might demonstrate a lack of foresight and care on the part of Government in relation to the protection of the most vulnerable in our society.

My final point is that the Safeguarding Vulnerable Groups Act 2006 prevents people on the barred list—including list 99 for teachers, the Protection of Children Act 1999 list for those working in childcare settings and a new list of people barred from working with vulnerable adults—from working in establishments in which they would come into close   contact with children. Once again, we are seeking reassurances that there will be an appropriate belt-and-braces approach to the important consideration of safeguarding children and vulnerable groups. In the spirit in which I moved the last amendment, I look forward to hearing the Minister’s response on this matter.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

The hon. Gentleman has lighted upon a subject that needs greater airing. While I accept that he will not press the amendment to a vote, there is a lacuna in the way in which we deal with the mentally ill in prison. If they come under the definition of vulnerable groups, this affords me a brief opportunity to say something about that.

As the Minister knows, or ought to know, there are far too many people in prison who ought to be under the care of the part of the national health service that deals with mental illnesses. I shall not go into historical analysis, because that is not strictly germane to the Bill, but it is important that we should understand that in our adult prison estate, there are people with mental illnesses—

Photo of Peter Atkinson Peter Atkinson Ceidwadwyr, Hexham

Order. I must stop the hon. and learned Gentleman there. The amendment is about child care, so he is straying extremely wide of the detail.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

In the Inner Temple garden, there is a statue of a small boy. Underneath, it says, “Lawyers too were children once”.

Photo of Peter Atkinson Peter Atkinson Ceidwadwyr, Hexham

Order. I do not think that that tactic will get you round me.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

I was hoping by that sleight of hand elegantly to reverse in such a way that I could put my bottom back on my chair. However, I shall have to do it rather more rudely. I fully accept what you have said, Mr. Atkinson. I have highlighted the issue of mentally ill prisoners, as there may be nowhere else in the Bill where I can legitimately discuss it within the rules of the Committee. I shall use any other opportunity that I can to highlight the difficulties suffered by the Prison Service in looking after mentally ill prisoners, be they youngsters or people over the age of 18. It is a crying scandal, and we need to do something about it.

Photo of Peter Atkinson Peter Atkinson Ceidwadwyr, Hexham

Order. The hon. and learned Gentleman might direct his attention to the new clauses, which will give him the opportunity that he seeks.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

I will direct my attention to the amendment tabled by the hon. Member for Cheadle. Many of the points that he raised in the discussion on the previous amendment apply to this proposal, too. I assure him that I want to be helpful, but amendment No. 30 is both legislatively and operationally flawed. However, as it is a probing amendment, I hope he will not take that criticism too much to heart.

The purpose of the clause is to deal with issues related to the activities of non-certificated staff in private prisons. The amendment would apply the regulatory framework established by the 2006 Act to everyone who works in a private prison. The 2006 Act was debated in Parliament last year and received Royal   Assent on 8 November. Consequently, all issues relating to the safeguarding of vulnerable groups have been considered very recently, and it was not felt necessary to include private prisons in that measure. That is the correct approach and nothing has happened in the interim to change it

The amendment extends significantly beyond the scope of clause 13. It would cover all staff of all grades in private prisons, whereas the clause is intended to apply only to non-PCO grades—PCOs are those officers who have direct day-to-day contact with prisoners. Under section 85 of the Criminal Justice Act 1991, PCO grades must be authorised to perform their duties by the PCO certification unit. As part of that process, PCO staff are already subject to rigorous pre-employment checks, which include a requirement to disclose all previous convictions.

Although non-PCO staff do not have the same contact with prisoners and are not subject to the same certification requirements as PCOs, they are cleared by the same unit as part of their pre-employment checks. Any person who wants to work at a private prison receives a basic enhanced police check. In addition, anyone who will be working in a juvenile prison or who will come into contact with children or vulnerable adults also undergoes that CRB check. The pre-employment checks are consistent with those undertaken on equivalent grades in the public sector, where the amendment would not apply. An additional bureaucratic check is not necessary or justified, as existing safeguards on staff suitability are adequate.

The clause already limits the range of custodial duties that a non-PCO grade can perform and submits those tests to parliamentary scrutiny. The Secretary of State will have to specify in an order subject to the negative procedure the activities that a worker may be authorised to carry out. The list in the clause specifically excludes the use of force.

A non-PCO has to be separately authorised at establishment level to carry out any task that is listed in an order. Such an authorisation can be given only by a director, where appropriate, and can be made subject to limitations or conditions. In determining whether an individual should be authorised or whether an authorisation should be limited or made subject to conditions, a director will need to satisfy himself that an individual has an appropriate level of experience and expertise in order to carry out the listed tasks in question, which is an inherent requirement of any such power. When a director makes a decision on the appropriateness of an individual for a particular task, he will have in mind the contractual penalties, including financial penalties, and the damage to reputation that operational failures in private prisons incur.

I trust that what I have said gives the hon. Gentleman the reassurance that he requires. His amendment is unnecessary, and I hope that he will withdraw it.

Photo of Mark Hunter Mark Hunter Shadow Minister (Home Affairs)

In the spirit in which it was tabled, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.