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.