moved Amendment No. 28:
After Clause 15, insert the following new Clause—
(a) a review of the proposals contained within the report published on 11th December 2003 "Managing Offenders, Reducing Crime: A New Approach";(b) the collated responses to the consultation document "Restructuring Probation to Reduce Re-Offending";(c) a review of the responses referred to in paragraph (b); and(d) proposals for reform of the Probation Service.
(2) The Secretary of State must include in a report under subsection (1) notification of when he will exercise his power under section 40(1A)."
My Lords, following the earlier admonition of the noble and learned Baroness the Attorney-General, I shall not repeat what I said in a letter to her, but she knows my sentiments.
Since the Bill was launched in this House there have been several changes of Ministers and ministries. Noble Lords who know the railway line between Edinburgh and Newcastle will know that one of the things you pass on the left-hand side is the Bass Rock. I am very glad that throughout the Bill we have had our own Bass Rock in the form of the noble Lord, Lord Bassam, whom I am delighted to see in his place, where he has been throughout. He represents continuity in the process.
As I said at Second Reading and in Committee, my purpose in tabling this amendment is not to kill the Bill but to seize the opportunity presented by the creation of the Ministry of Justice and the appointment of new Ministers to review the evidence not just in this Bill but in a large number of other Bills—54 in total—and in a huge amount of other legislation that is associated with it.
Last night we were due to have debated for the fourth time an amendment to the Corporate Manslaughter and Corporate Homicide Bill. Shortly before we were due to start I received a request from the Secretary of State for Justice to defer that debate until he had had time to consider the Bill as it stood. In discussion with the Conservatives and the Liberal Democrats it was very easy to agree to that and to welcome it. Indeed, I took the opportunity to pass to the Secretary of State a suggested date which he might consider, which I would have mentioned on the Floor of the House. I welcomed the request because it seemed evidence of a willingness to engage in constructive debate. We have just listened to the Statement about the Prime Minister's intent to have a national debate on many constitutional issues. My amendment seeks further debate about the management of offenders within the criminal justice system.
This Bill had at its genesis a paper by the noble Lord, Lord Carter of Coles, but that report was based on a false premise that there would be a stable prison population. Indeed, both he and the then Commissioner for Correction said that the National Offender Management Service, as suggested, could not come to pass unless there was a stable prison population—and there has not been one ever since. Therefore, in many ways, NOMS had a flawed beginning. However, that is not to say that we do not agree with the principle of the proper management of offenders throughout the time that they are in the hands of the criminal justice system or with the partnership of the voluntary, private and public sectors in providing their treatment. We have agreed that throughout our discussion. However, the problem with this Bill is that it is not about the management of offenders; it is about the management of the management of offenders, and in particular the introduction of a new way of commissioning probation services. Therefore, it is a falsely named Bill. Why does that matter?
One of the reasons that the Government put forward for not being keen on including custody in the corporate manslaughter Bill was that they were sailing into uncharted waters and that they needed to test the temperature before they went further. We are in uncharted waters in the Offender Management Bill. The only country in the world that has gone down the route that has been proposed is New Zealand and that resulted in a gross increase in prison numbers, which worried their Government so much that it has been dropped.
Since this Bill was launched—I forget which number it is; the number of Bills now reaches 54, which is more than there had been in the previous 100 years at the Home Office—No.10 Downing Street issued a paper called Building on Progress: Security, crime and justice. It is the fourth policy review on this matter and has six chapters, including one of reform of the criminal justice workplace. In addition, it announced a term of reference for another review by the noble Lord, Lord Carter. He has done Wembley, he has done a legal review and he is now reviewing prisons. One of the things that he has been asked to do is to assess the management and efficiency of public sector prisons. Surely that has a key part to play in offender management, which is allegedly the subject of the Bill, yet the Carter review will not be included in the conclusions of the Bill. The management of public sector prisons has a huge impact on the rehabilitation of offenders, which is what we agreed a lot of the Bill is all about.
If that was not enough, last week, as a leaving present, the former Prime Minister landed on the desks of those who cared to pick it up the Criminal Justice and Immigration Bill. It is a monster of 129 clauses and 23 schedules, and it included the suggestion that there might be a commissioner for offender management and prisons. That has not come near the statute book. My case is that, frankly, this is the wrong time to take this Bill—when it is taken in isolation—because it does not take into consideration what is included in all the others.
I am currently a member of the Regulators Select Committee, and we are looking particularly at financial regulators. One of the things that has been brought to our notice is that the worst aspect of the whole process is something called the regulatory impact assessment, which is required to be done on every new piece of regulation, and they are very badly done. Indeed, the National Audit Office reviewed regulatory impact assessments and pointed out that they are badly done and that, because they are badly done, they have an impact on what the regulation is meant to achieve. I have drawn attention to the regulatory impact assessment on the Bill. We have not drawn up a league table of regulatory impact assessments but the one on this Bill would figure pretty near the bottom of the league. It says that the options are to "do nothing" which means that,
"we would be unable to realise the full benefits of the NOMS reform programme", or to implement in full, which,
"would allow the us to take forward the reform agenda".
But it does not explain at all the impact on costs, the impact on other services, the impact on the voluntary sector or the impact on all the people who are working to rehabilitate offenders, or whether this process would improve. It is merely about whether the Government's proposal would be taken forward. I do not believe that that is what a regulatory impact assessment is all about.
I have been delighted to hear during the course of this debate that organisations such as the CBI and some private sector companies are very willing to come forward and be involved in the contracts. I am delighted that organisations such as Turning Point and some of the large voluntary sector organisations and the Association of Chief Executives of Voluntary Organisations also want to take part. Of course they do, but that is not the whole story. There is a whole myriad of other small organisations, which do an enormous amount of work in this field. I have been associated with a number of them. I heard yesterday, for example, of a study 10 years ago into the provision of proper nutrition in a prison. It proved that proper nutrition and diet produced a reduction in offending behaviour in prison of 40 per cent. We spent 10 years trying to be allowed to replicate that—10 very frustrating years dealing with people who say that they support the voluntary sector. Meanwhile, the Dutch came in, took our evidence, went away to Holland and published their reports yesterday showing that there was a 47 per cent reduction—we had underestimated.
I mention that because, over and again in the sector, the arts organisations and small organisations dealing with particular aspects do not feel included in what is happening. They want to be sucked into the dialogue. Therefore, the purpose of my amendment is not to stop what is happening but to say, in welcoming it and the arrival of a Ministry of Justice that has to focus on all these issues, "You don't have to rush ahead with theBill. You've got a crisis on your hands at the moment of too many prisoners and probation officers who need to be handled now by what you have. Introducing a long, drawn-out change to the commissioning process will not help you solve that problem today. Get on with today and, in the mean time, use the opportunity to look at all the evidence, all the things that have been said on the Bill, all the attention that has been drawn to the items that have been left out of the Bill, all the links to other services such as education and healthcare, and the detailed involvement of the voluntary sector. Then let's have a proper debate within the criminal justice system to see that what emerges as the national system for the management of offenders is robust because it consists of a coalition of the willing, who feel that they're willing because they've been involved".
My amendment is designed to suggest that the new Secretary of State should accept that and seize the opportunity presented. Then he should conduct that inquiry and engage with the House, knowing that when he does so everyone—certainly everyone whom I have spoken to—is minded to go along with the general proposition, but is dissatisfied by the detail that has been presented. It is in the spirit of seizing an opportunity to get something right in relation to all the other things that are on the table, rather than in isolation from it, that I beg to move.
My Lords, it is good to hear that the noble Lord, Lord Ramsbotham, is a friend of the Bill, but with friends like that who needs—let me leave the quotation incomplete. I am unpersuaded by the argument. It is yet another example of looking for any and every reason to oppose the broad thrust of the reforms.
The argument is that, after we have been discussing these issues since 2003, we should find yet one more reason to go slower when we all face a level of repeat criminality in this country that we ought to be ashamed of. To believe that we should wait yet further to address that with considered, important and difficult reforms feels like an indefensible and embarrassing argument to have to make. The further argument that the House should, in a sense, second guess the Government in their executive responsibilities about moving forward with reforms when Parliament has given its proper consideration also seems inappropriate. We say that we support the reforms and respect the importance of developing a much more vigorous system that looks afresh at how all the constituent parts address reoffending. That is right—I hope that we believe that—so let us get on with it.
We argue at times that we should spare the staff from the changes. As someone who has spent far too much of his life seeking to reform public services, I say that where you believe you have a clear vision of reform you should get on with it. The staff do not welcome you dallying around and putting them through further agony, particularly because some will put blandishments in their ears and say, "This further delaying mechanism might mean that reform will really go away and we can afford doing it".
Mechanisms such as this one help people who do not want to face the need for change to try to continue to avoid doing so. Therefore, I urge the House not to give succour to those who believe that we do not need change in this agenda when we desperately do, and to those who think that they can put off the evil day of change that they do not want to face by finding yet further reasons for delay. Let us give these measures proper scrutiny, but let us then get on with it and seek to reduce reoffending in our society and better protect the public from criminality, because we are not doing sufficient at present. These changes are needed; we should get on with them.
My Lords, I understood that it was precisely the role of Parliament to second guess the Government and to examine whether the proposals made by the Government have a clear rationale. I have struggled with the Bill to find the underlying, clear rationale behind it, and there have been points when I felt that there were two or three different Bills popping out from underneath it. As the noble Lord, Lord Filkin, will know, I have become increasingly sceptical about the mantra of public service reform, the employment of large numbers of outside consultants and the pressure to change for the sake of change and to push towards the private sector.
We all agree with the principle of more integrated offender management, and we understand that the purpose is the reduction of reoffending and in parallel a reduction in prison numbers. When I read the Carter report—which has a good beginning and a good end, but I missed the argument in the middle that links the beginning and the end—I understood that one the major problems is that fines are not enforced. Nothing that we have read in any of the papers since then deals with how better to enforce fines, which might make a major contribution to a reduction in prison numbers.
We talk about community penalties and community punishment, but that takes us into the question of which part of a mixed economy one is moving towards. There still seems to be confusion in the Bill about whether we are moving from public provision to largely private sector provision—for profits and for large companies—or to large non-profits that are commissioned centrally, or at the most regionally, or the voluntary sector, which is often much more local working with the community. I note that in the Government's paper Reducing Crime, Changing Lives, the implication is very much that we should be talking about local community involvement, local community punishment and working with the not-for-profit sector. I hope that is the direction in which we are moving, but I am not entirely clear.
Today's very welcome Statement from the Government on constitutional reform suggests that we should be doing everything to move back towards local community and local engagement as far as we can. That is what we on these Benches support, and that is why we are so unhappy about the extent to which regional commissioning seems to be taking over from local boards. That is why we were so deeply unhappy when the noble Lord, Lord Warner, suggested that one would have trusts, which one would set up and abolish every day of the week, if you like. Some noble Lords will recall him saying very proudly that he had abolished 200 primary care trusts in a year and set up 55 more and thinking that that was an excellent example of our process of public sector reform.
We therefore think that there is still a case for a pause. We have not seen the Government's response to the many responses to their original proposals. I have read the Carter report, the Government's response and all those things, and I still do not see an underlying rationale passing through them. In this process, we have had a succession of different Home Secretaries offering different things. If we are to make a very important change in the management of offending, we need to be entirely sure that it makes sense, that it lasts and that everyone is happy with the lasting settlement. We need to make sure that we do not rush through yet another change that will be succeeded with yet another change in three or four years' time, but only after a large number of outside consultants have said that the last one did not work.
My Lords, the noble Lord, Lord Filkin, was right in one respect—these are important reforms. They will shape for perhaps a generation to come the future delivery of probation services to those who are in need of them. They are very important services, particularly for the security of this country. It is therefore important that we get them right. The noble Lord, Lord Filkin, went on to say that there was a clear vision of reforms. I disagree. In our five days in Committee and one day on Report, we have not seen clarity. We have seen an attempt to shield the truth. These are centralising reforms presented as being responsive to local needs.
Last week, the mask slipped when we debated an amendment on which I divided the House and was fortunate in persuading it to support me. I argued that the Secretary of State's centralising powers to commission services should instead be devolved to the probation trusts. The Government's argument throughout has been to say to me, "Don't worry, we are closer than you think. In practice, the majority of services will be commissioned locally". Last week, suddenly we heard from speaker after speaker on the Benches opposite, behind the Minister, the argument that if my amendment were passed nothing would change and that the local trusts cannot be trusted to deliver commissioning on the contestability basis to private companies and the voluntary sector.
Clarity was there none. It is absolutely important, as the amendment of the noble Lord, Lord Ramsbotham, suggests, to give the new Secretary of State for Justice and Lord Chancellor the opportunity to look again and find the clarity that the public deserve. I support the noble Lord, Lord Ramsbotham.
My Lords, it is with some temerity that I stand up and say that I am a somewhat simple soul in that I believe that the management of offenders and the management of the service are one and the same. I agree with my noble friend Lord Ramsbotham and other speakers that unless we get that right there will be real difficulty for the service. However, I have a quite different view of where we are. I could be wrong and no doubt my noble friend Lord Ramsbotham will put me right in his response and the Minister may clarify for me where I think I stand, but I simply do not see us in the uncharted waters that everyone else is trying to show.
The framework of probation will be the same. I would have liked to see more radical reform, as noble Lords will know, not because I am a great one for change—I have argued significantly against some of the health service and social services changes that have gone on and on and left the services in great disarray—but I argue for this change because I believe that out there the probation services are in the middle of it and, having worked for most of my life in change management with organisations, I know that that is nearly the worst position we could continue to leave the probation services in.
Not only is the framework of probation pretty much the same, I think that we have a clear rationale which, as I understand it in relation to the services in the voluntary sector in which I work that touch the probation sector, is trying to find new ways of intervening. I have heard lots of discussion during this debate about those interventions perhaps not being as "high-class" as others. The services that I have worked with have been exceptional, with highly trained workers intervening in a way that has set the standard for other probation services. If we had that kind of service we would see greater innovation and greater development. Of course I have the same fears as others about whether large companies will come in and undercut my services. Therefore, I ask the noble Baroness yet again to reassure us that what will count will be the quality and not low cost.
The commissioning element is all that is really different. There are other small changes in the Bill but its central core is this commissioning element. I have said this before, but I am surprised that the Conservative Benches are not pressing this forward and that they do not see that commissioning and contestability are a way forward in changing and improving skills. They widen the scope of the skill set. At the moment the changes are proceeding at a very conservative pace. On the ground, services are being told that they cannot have the three-year contracts, which they thought they could have, because of the uncertainty. If we delay again, that uncertainty will go on, not just for the probation services, but for all the local voluntary services that are trying to deliver different but quality services on the ground. These groups are not huge. The one I know best, the Lucy Faithfull Foundation, is not a huge organisation; it is a specialist foundation. The circles, working with the Quakers, are small organisations. They have managed to hold their positions, and they will do even better if in future they are more able to get their contracts.
In my view, the one thing probation does not need is yet another period of uncertainty; but it needs clear knowledge about how to move forward. I am quite sure that my noble friend Lord Ramsbotham will say that clarity is the one thing that is lacking. But I think that on the ground there is room to move forward. What we do not want is rigidity. We have got to get this right, but to get it right we have got to get on with it. We should not change for the sake of change but this is marginal change. Let us make sure that we do move forward, that we remove the uncertainty, build better services for the future, and, by improving services that stop offenders reoffending, make our country safer.
My Lords, I very much agree with the noble Baroness, Lady Howarth. I say straightaway that I too have been in a very privileged position. From this Dispatch Box I have expressed the views in relation to this matter of the previous Home Secretary John Reid and before him my right honourable friend Charles Clarke, the former Lord Chancellor, my noble and learned friend Lord Falconer, and now my right honourable friend Jack Straw as the new Secretary of State responsible for justice and the new Lord Chancellor. The last three have one thing in common: they all agree with the noble Baroness, Lady Howarth, that we must now get on with this and delay will not inure to anyone's benefit.
I hear what the noble Baroness, Lady Anelay, says about centralising reform. I disagree very much with that suggestion. The construct put forward by her on behalf of her party is, I respectfully suggest, one of no change. However, no change will not give voice to the needs both of the victims and the offenders, who demand that we change in order better to address the needs that they each have.
The structure we suggest is not one which is unreasoned or so fast as not to take people with us. Of course we have listened very carefully indeed to the debate that has gone on throughout the whole passage of the Bill. I recognise the genuine desire of those who have spoken to ensure that we have the best possible set of provisions. We all want to see a strong, confident and effective Probation Service able to play its full part in reducing reoffending and protecting the public.
I understand the anxiety that the noble Lord, Lord Wallace of Saltaire, has so cogently expressed in terms of the different tensions in this situation, but what is less clear to me is how this amendment will assist. I am puzzled about why the noble Lord, Lord Ramsbotham, thinks that the addition of a further stage in the parliamentary process and the accompanying delay and uncertainty is necessary or how that uncertainty and delay would further inure to the benefit of those we all purport to serve. The import of what the noble Lord was saying was, "Postpone this Bill and all its parts. Consider afresh again whether all or any of its contents need to be embarked on at all". Some noble Lords might say that what he is saying is "Rip it up, put it in the bin and start again". That would not do justice to the hard work and dedication of all the sectors who have now engaged with such energy in making this change possible. I respectfully remind the House that it is not for nothing that the CBI, ACEVO and many others have said that they wish to see these provisions on the statute book.
I was grateful to the noble Baroness, Lady Howarth, for identifying the smaller organisations involved. The Lucy Faithfull Foundation is a specialist organisation, but it is not a large organisation. Circles of Support and Accountability, which is an effective organisation, is not large. Clinks, which, as I mentioned to your Lordships last time, is leading the work on how we can get smaller organisations better supported, is not a large organisation. Those organisations need continuity, and commissioning would enable them to have that.
Perhaps this amendment is inspired by a sense that the Government have rushed these proposals and that a period of reflection is necessary. But if we look at the history of the Bill, we can see how it has changed, developed and deepened in the understanding of what is necessary. This policy has been evolving and in the public domain since December 2003. I know that some in this House think that it should go as slowly as the public sector reform that is contemplated in relation to civil servants for which we have had to wait for more than a hundred years, but I think that we can go little more quickly. We can hardly be accused of having rushed these changes.
The amendment would require certain documents to be prepared and laid before the House. There is concern therefore that there will be insufficient opportunity for parliamentary scrutiny of these proposals. But I respectfully say that that can hardly be the case either. This is a modest-sized Bill—just 34 clauses and five, mainly technical, schedules when it was first introduced. Yet in your Lordships' House alone we have had six Sittings in Committee. Indeed, at the outset of Committee, our scrutiny was so considered and detailed that we were progressing at the rate of roughly one clause per Sitting.
I am sure that noble Lords would also agree that my noble friend Lord Bassam and I, with the full support of our colleagues at the Ministry of Justice, have gone out of our way to be very full in our responses to points raised, both on the Floor of the House and in the written material that we have regularly circulated outside. Where appropriate, those responses have extended to agreeing to amend the Bill itself. We have done a lot of good work in that regard with the valid contribution from all Members who have taken part, but I cannot see that further scrutiny is needed or what purpose it would serve.
Perhaps there has been insufficient opportunity for those outside Parliament to have their say. Your Lordships have had the advantage of hearing from many of those who made a contribution. The preponderance of that comment has been supportive of this Bill. The evidence is that the service is committed to change. As I mentioned in Committee, two-thirds of those boards eligible to apply for trust status in April 2008 expressed interest in being considered. The noble Baroness, Lady Howarth, is right when she says that they want to get on with this. That makes 22 areas in which 13 have been invited to apply to become a trust in the first wave. The applications are due to be returned by the 13th of this month. Any further delay and uncertainty risks undermining the plans for implementation and will have an adverse effect on the morale and serviceability to prepare for the future. I am sure that the House will agree that that cannot be in anyone's interests.
I reassure the House that there is no basis for thinking that if there were a postponement significant or material change is likely. The Government's commitment to the provisions in the Bill remains undiminished either by the machinery of government changes on
My Lords, I thank all those who have taken part in the debate. In particular, I thank the noble and learned Baroness the Attorney-General for the way she responded. She will not be surprised to hear me say that in the very first of my remarks I said that this was no attempt to kill the Bill. Never, throughout all our deliberations, have we had any intention of killing it, stopping it or being against change. One of my frustrations when I was Chief Inspector of Prisons was the number of recommendations for change that I put forward—some 2,800 over the time of which only 70 were picked up.
The noble and learned Baroness mentioned that this Bill first appeared in December 2003. That is when the problems started. At that stage, the Government clearly listened to the advice of the noble Lord, Lord Filkin, and rushed ahead with change without thinking. Because they rushed ahead and announced things without discussion, we have had this long drawn out period of uncertainty and retrenchment. Is the Probation Service national, regional or whatever? Will the services be united and merged? What is happening to the regional offender managers who have been in position for three years without budgets and so forth? This uncertainty spread because, right at the start, there was no consideration.
I am not seeking to delay the Bill just to delay it. I am saying that, while this Bill has come within the context of the criminal justice system, other Bills have been launched and other proposals have been made. Other studies have happened that have an impact on it. Therefore, it is incomplete in context in terms of the criminal justice system and the way that offenders are managed. Unless offenders are managed properly, we will not get what we all require—the rehabilitation of offenders and protection of the public. Nobody wants change more than I do. Nobody is more concerned about the lack of morale and the uncertainty that exists in the services today. I was at a conference this morning listening to deeply disturbed members of the voluntary sector who do not know what is happening. Last Friday I was with the Probation Service and others in Newcastle where people were very disturbed about the lack of clear direction.
The noble Baroness, Lady Howarth, said that the framework is the same. It is not the same. The headquarters of the National Probation Service has disappeared and the leader of the service is subsumed into a department in the National Offender Management Service. It is not the same. There is not an organisation that can drive change.
All I am saying is that to achieve the change that we all want, it behoves the Government to see whether, in the light of all the other things that are going on, it would be sensible to ensure that everything is taken into account, rather than rushing off in one direction. I am sure that the noble and learned Baroness will not be surprised that I therefore wish to test the opinion of the House.
My Lords, it is unfortunate that this amendment was originally tabled by the noble Baroness, Lady Gibson. It would remove a clause which has long needed to be reviewed. When we originally looked at the whole idea of private sector prisons in 1991, it was decided that there should be a public sector representative in those prisons to monitor compliance with the contract.
When I was chief inspector, I was often conscious that the relationship between the director of the prison—in many cases, someone who had been a governor of a public sector prison—and the controller was difficult because of one particular factor, which was that in the 1991 Act it was agreed that one activity should remain in the hands of the public sector: the adjudication of prisoners. That was because adjudication involved punishment, which was the responsibility of the state. I do not believe that has changed; nor do I believe that any suggestion that the requirement for controllers who are, in effect, contract monitors in private sector prisons has gone. In some of the reports of my successor as chief inspector, she says that she has been concerned about the number of times that private sector companies have been tempted to fudge figures to appear to comply with contracts and not be liable to sanctions. In the treatment of offenders, that simply must not be tolerated.
What does not appear in the Bill is the suggestion, which I hope the noble and learned Baroness the Attorney-General will be able to comment on, that there are two public sector monitors in each private sector prison at present. The number will allegedly be cut to one because it is assumed that adjudication takes a day—it does not. Also, if done properly, contract monitoring takes more than one monitor. Therefore, rather than try to play around with words, it is appropriate to remove this clause and leave the status quo: leave the state responsible for punishment and leave contract monitors in place to fulfil their role of supervising what is done on the public's behalf by the private sector. I beg to move.
My Lords, I have necessarily stayed out of the discussion on this Bill until now, owing to pressure of underwork. Memories of our debates in 1991 were so sharp and poignant when I heard what was being proposed in Clause 19 that I felt I had to come, reluctantly, to your Lordships' House to express my dismay.
As I recall, the support of wavering Conservative Peers like myself was solicited by the Government of the day—and by their Home Office spokesman the noble Earl, Lord Ferrers, whom we all hope to see back with us before too long—for the proposal that two pairs of eyes from the public sector would see what was going on and that things that should not be known in public were not being done in secret. The focus of this concern was adjudication—how fair and appropriate their punishments were to the people concerned.
When you take freedom from a citizen, you assume a terrible responsibility. When you take it from more than 80,000 prisoners, it becomes enormous. When a significant proportion of those are handed over to an organisation other than the state it becomes necessary to retain some hold on what is done. As I understand it, Clause 19, by transferring the right of adjudication to a governor, makes the monitor no longer necessary for the functioning of the prison. The monitor is necessary for its fair functioning, but not necessary for its economic functioning. This reminds me of what the noble Lord, Lord Ramsbotham, said a moment ago about the danger of figure-fudging. Contractors have targets to meet—haven't we all these days?—otherwise they are in breach of their contract. Therefore, it is very important that the statistics, which reveal the performance against the target, are managed suitably for the contractor. In other words, there is a strong conflict of interest between the interest of the state in fairness and the interest of the contractor in profit. That may be an odd sentiment to express from the Conservative Benches, but we are dealing with matters of principle, and I believe that this House consented to this form of prison on the principle that there should be representatives of the public sector in it to act as referees and whistleblowers, and to protect the defenceless against injustice where the private sector was clearly motivated on occasion to commit injustice. For those reasons, I wholly support the amendment.
My Lords, I have some sympathy for the amendment to remove Clause 19. I had the privilege of representing prison officers in Parliament for some years, and I visited many prisons, so I have had experience of the nature of prisons and the prison environment. I also have a deep respect for the dedication of prison officers and prison governors. The background against which the existing legislation was made is very interesting. I draw attention particularly to punishment being the responsibility of the state. In that context, although many things can be parcelled out, privatised or sub-divided, ultimately—I am grateful for what the noble Lord, Lord Elton, said about his memory of the atmosphere and the intention at the time—the Minister should be obliged to tell us where this is coming from.
What consultation has there been, particularly with the Prison Officers' Association and the Prison Governors Association? I would like to hear not only that there has been consultation with those two bodies but that they approve of the intention behind the clause. I do not think that they do; in which case, what is being gained? More than once, the Attorney-General has stressed that this is not driven by efficiency savings but is designed to make the system more efficient. How much more efficient would the system be if we were told that prison governors are burdened and that, in the absence of the clause, they would continue to have the responsibility to adjudicate; indeed, that they were screaming blue murder because of the weight on them? Whom have the Attorney-General and her advisers consulted? Someone told me that they had taken the views of the CBI. The Attorney-General can deny that—indeed, I hope that she will be able to do so—but I would be very worried if the views of industry were to reign over those of the people at the sharp end.
Let us make no mistake; despite the disputes involving prison officers and prison governors about conditions, pay and all the rest of it, they are at the front line, or the last line, of defence in this country in dealing with many, many people. We know that many people in prison should not be there, but a great many others should be and are determined to make the lives of other inmates bad. I was once asked at Wakefield prison to peep through the window in the door to the cell of a man who had murdered two prisoners while in prison. That is the kind of person with whom we are dealing. Prison officers are prisoners just as much as prisoners themselves, because they are locked in the prison estate and have a terrible job.
On equity, it is eminently right to say that the persistence of the clause is a condemnation of the present situation, which, as the noble Lord, Lord Elton, said, was built 16 years ago on the foundation of a major step—the introduction of privatisation into the prison estate—about which many of us still have questions. It is, however, now a fact of life, and I hope that the Attorney-General can satisfy the House that the alarm bells are ringing without reason. If she cannot, however, I very much hope that she will say something to allay my concerns about being party to a situation about which I am not very happy.
My Lords, I have considerable sympathy for what the noble Lord, Lord Graham, has said and the questions that he has asked. As an occasional but regular visitor to prisons, the prisons with which I have been most impressed, certainly in the past 10 years, have been private and have been of great benefit to the system as a whole. However, the atmosphere in a prison can very easily become difficult for both prisoners and staff, so the principle of a co-operative regime, particularly when sensitive issues such as punishment arise, is a good one. Even in private prisons, the principle of the involvement of state officials in the punishment of those who are in prison is at least to be considered and quite possibly insisted on.
My Lords, I did not intend to speak to the amendment. Indeed, I may have misunderstood it. If I have, it will become painfully obvious in the next couple of minutes. As I understand it, the clause intends that the director of a private sector prison should be in much the same position as a governor of a public sector prison when it comes to disciplinary issues, and that is what is objected to and what the amendment seeks to remove. If I have got that part of the amendment right, surely a director of a private sector prison would have to work basically under the same instructions and rules as a governor of a public sector prison would in exercising such powers. Presumably the training requirements would therefore be similar to ensure that the individuals concerned were competent to exercise these responsibilities. Presumably, then, this is almost a professional question of being able to exercise these powers appropriately.
I also understand that private sector prisons are not exactly divorced from inspections. They are still subject to them, and must operate under the terms of a contract and in a particular manner. If they fail to do so, they leave themselves open to challenge. If my understanding of the position is basically right—it may turn out to be wrong—I really do not see what the difficulty is in enabling the director of a private sector prison to have very similar powers to those of a governor of a public sector prison in this regard.
My Lords, I hope to be able to answer the question that the noble Lord, Lord Rosser, has just asked and to explain why this is such a very bad idea. I should make it clear that this debate is not about whether private prisons are a good thing, whether they are value for money or whether they should be more publicly accountable. It is, as the noble Lord, Lord Elton, said, about the propriety of suggesting that the power of punishing prisoners should be handed to a non-state agent, and about the possibility that handing this power to the director of a private prison will lead to conflicts of interest, whether actual or perceived. Justice must be done and seen to be done. If the procedures are not seen to be fair and legitimate, the state of a prison will suffer because of the unhappiness of the prisoners and the way in which they feel they are treated.
I remind the House that the punishments available for prison directors to impose after adjudication are substantial. Directors may no longer add days to a prisoner's sentence—that has to be done by a visiting magistrate and applies to the more serious offences. However, prison directors can confine prisoners to their cells for 21 days; exclude them from work so that they get no wages for up to 21 days; stop their earnings or make deductions from their earnings for up to 84 days; remove them to segregation for up to 28 days; and institute forfeiture of any privileges under rule 8 for up to 42 days.
The significance of that is that prisoners can be demoted on the incentives and earned-privileges scheme and so may have their entitlement to visits from their families reduced. Furthermore, the imposition of those punishments can have wider implications for prisoners. The power to reduce family visits affects Article 8 of the ECHR, on the right to family life, as given effect to by the Human Rights Act. The frequency and level of punishments given in an institution will go on parole reports and will affect whether prisoners receive parole. The Parole Board takes those matters into account when deciding whether it is safe to release prisoners; therefore, there is an effect on the right to liberty.
Directors of private prisons are in a difficult and very different position from a public prison governor. They have to take account of the requirements of their employers—that is, the company, which is usually far from the day-to-day concerns of the prison—the requirements of the contract and the need to avoid fines and penalties that such prisons attract if they fail to carry out the contract. It also puts the private prison director under strong pressure and would make it very difficult for even the most well trained and longstanding prison director to be seen to operate fairly and without being accused of conflicts of interest. It seems to me that private prison directors would not want to be put in that position, and this House certainly should not allow that to happen.
My Lords, I have a great deal of sympathy with the amendment. The noble Baroness, Lady Stern, has encapsulated what I feel about it. I have been approached by the Prison Governors Association, the Prison Reform Trust and the Prison Officers' Association on this, and they all support the amendment. Very often, when the Prison Officers' Association is mentioned one thinks only of state prisons, but it also has members in private prisons. I do not want to repeat what others have said, but I support the amendment.
My Lords, I strongly support the amendment. An underlying principle, which we should not cross, is at stake. This is not a criticism of private prisons. We are all conscious that, on the whole, the introduction of private prisons has had a beneficial effect on prisons in this country. Next week, I am to visit a prison whose reputation is among the best of the private prisons in this country.
The principle at stake is the relationship between the state and the private sector: the proper management of public/private partnerships. The state should have the monopoly of force, and punishment is a use of force. Earlier, I spoke about the difference between the American model of privatisation and the Nordic model of a mixed economy of public/private partnerships. In the United States, they are very relaxed about private contractors carrying guns: mercenaries operating on behalf of the state. We are not happy with that. The state should retain the monopoly of force. If we cross that line we enter a very different world.
As the noble Baroness, Lady Stern, said, there are potential conflicts of interest. The lines of authority and accountability of a private prison governor and his unavoidable concept of role and responsibility are, to some extent, necessarily different from that of a governor of a state prison. That is in the nature of a public/private partnership and, therefore, it is entirely appropriate that proper tension between the public and the private sectors should be built into the system. The amendment would retain that; Clause 19 would cross that line.
My Lords, the amendment raises a very important principle. I shall be interested to hear how my noble and learned friend replies. The noble Lord, Lord Wallace, has just made a comparison with the United States, which has a more relaxed attitude towards private contractors carrying guns and the rest. That is about security; in the prison system, we are talking about justice. The amendment raises the issue of whether we want a system in which justice is operated by people with a commercial interest in the operation. I make no criticism—I have no ground for making any—of any director of a private prison at the moment, but a crucial principle arises about justice: how it should operate and how it can convincingly be seen to operate, as has already been said. My noble and learned friend should not dismiss the amendment lightly. In view of her new responsibilities, I shall be interested to hear how she deals with the point about justice.
My Lords, my noble friend is right to emphasise the importance of justice, but also important is parity of treatment in relation to how we house and deal with those who are sentenced to periods of imprisonment. I want to clear up a few points as there may have been some misunderstanding.
The noble Lord, Lord Elton, is concerned that we are removing the role of the controller, as a third pair of eyes, from the process. I can reassure him that we are not doing that. Controllers will no longer conduct adjudications, but will still monitor the conduct of them by private prison staff; for example, they can even attend individual adjudications if they want to. That is not changing. We agree with him on the need for that scrutiny to be maintained.
The consultation process was raised by my noble friend Lord Graham. I know how seriously he addresses the issue. I can reassure him that we have consulted the Prison Governors Association and there has been further consultation with contractors and existing controllers. Plans have been developed in discussion with the public sector Prison Service to ensure parity with its procedures. My noble friend Lord Rosser was correct in the premise that he made about the way in which we seek to deal with the matter. These are sensitive issues. I assure the House that the Government recognise that sensitivity and the nature of the changes contemplated in the clause.
We are also aware of the need to ensure the proper and fair treatment of prisoners, as I made plain. With that in mind, we have taken careful measures to ensure that our approach is balanced by appropriate and robust safeguards. The powers proposed to be transferred by the clause are essential tools for governors in public sector prisons, used to maintain order, control and discipline. As part of our clearly expressed desire to ensure parity of performance between the public and private sectors, we feel that this is precisely the right time to extend the powers, so that they apply equally in private prisons. Specifically, the changes proposed will enable directors to be fully responsible for order and control within their establishments. Controllers, who currently undertake the task on behalf of directors, will then be freed up to spend more time monitoring the quality and value of the service provided by the contractor. Consequently, the change will ensure that the disciplinary system in private prisons operates as speedily and effectively as possible, but also that better oversight of the whole range of services is being delivered by the contractor. This will, I hope, bring real benefits to prisons and prisoners generally, and to the public, with better value for money.
I was much encouraged by what the right reverend Prelate said, because in his capacity he has had the advantage of going into a number of prisons, both public and private. His experience of a number of private-sector prisons reflects that of the noble Lords, Lord Elton and Lord Ramsbotham, and others.
The powers are already highly regulated by secondary legislation—not least the prison rules and the detailed instructions in the Prison Discipline Manual and Her Majesty's Prison Service standards, which private prisons are, respectively, statutorily and contractually bound to follow, so that they exactly reflect those that apply in public sector prisons. We are simply creating a parity of powers between directors and governors—neither will have any greater freedom than the other as they perform identical tasks. That is why my noble friend Lord Rosser was right.
We are also going to require contractually that, before directors can adjudicate, they must have passed the equivalent training course as their public sector colleagues. I know that this is a matter of complaint but, as most directors are ex-Her Majesty's Prison Service governors anyway, they are already likely to be very experienced in the task. My noble friend Lady Gibson has complained about the number of private prisons that have—some would say—purloined for the private sector some of the best from Her Majesty's Prison Service. That is always an issue of tension. However, the controller will ensure that the rules that apply to one are adhered to by the other.
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 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:
"a frightfully well-run prison ... staff had extremely good relationships with the prisoners and the organisation running it had done all sorts of imaginative things with education...work...and so on, which weren't happening in the public sector. And when I asked the Governor why he was doing this, which conflicted with what I'd seen of prisons in the public sector, he said he's not allowed to do it in the public sector prison".
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, 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.
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.
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.
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?
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 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.
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 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, that 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.
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, 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.
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.
moved Amendment No. 31:
After Clause 25, insert the following new Clause—
"Independent monitoring boards
(1) The boards appointed under section 6 of the Prison Act 1952 (c. 52) (boards of visitors) are renamed as independent monitoring boards.
(2) Accordingly, in section 6 of that Act—
(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".
(3) In section 6(2) of that Act the words from "of whom" to the end cease to have effect."
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 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 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.
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.
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.
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 vitally important 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 magistrates and the last thing we would want to do is discourage such fantastic volunteers from continuing their volunteering.
moved Amendment No. 32:
After Clause 26, insert the following new Clause—
"Disability equality duty
Disability equality duty
(1) The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (S.I. 2966/2005) are amended as follows.
(2) In regulation 2(3)(d)(iii) after the words "Part I" insert the words "or Part V".
(3) After regulation 2(6)(c) insert—
"(d) in the case of a public authority listed in Part V of Schedule 1, 1st December 2008."
(4) After Part IV of Schedule 1 insert—
Her Majesty's Prison Service
A prison operated by Her Majesty's Prison Service
Any contracted out prison within the meaning of section 84 of the Criminal Justice Act 1991"."
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.
This issue was raised by my noble friend Lord Low in Committee and we were not satisfied with the Government's answer that they would bring back disability legislation by making provision through Prison Service orders. On reflection, we do not think that that is satisfactory. There is a similarity here to what happened with the Corporate Manslaughter and Corporate Homicide Bill when the noble and learned Baroness described it as a brave move by the Government that Crown immunity was dropped for certain activities. When I inspected Her Majesty's Prison Frankland in Durham I discovered to my horror a disabled man confined to the healthcare centre because he was wheelchair borne. Frankland was a new prison. I had seen the plans for Frankland, which included provision for disabled people to get around, including those in wheelchairs, but they were not included in the final build. When I questioned the Prison Service about this, I was told that because of Crown immunity the service was not required to conform to the disability legislation and had therefore excluded them. The man was denied access to work, education and everything else because of his disability, as he could not get out of the healthcare centre.
Therefore, in the spirit of lifting Crown immunity in the context of the Corporate Manslaughter and Corporate Homicide Bill, it is perhaps right to look at all the other aspects of this sort of legislation, including disability, where Crown immunity has previously been prayed in evidence. It was, for example, prayed in aid as a reason why the conditions of the Children Act should not apply to prisons until that was overturned by judicial review.
The background to the amendment is explained clearly by what is required by the Disability Rights Commission, which is that there should be a disability equality scheme in every public place. There are already requirements on probation boards, schools, NHS trusts, passenger transport executives and many other public sector bodies to produce such a scheme. The Prison Service has one, but it is not one of its own; it is an adjunct of the Home Office disability equality scheme, and it applies only to staff, not to prisoners. That is not acceptable. The Prison Service must have a scheme of its own, applying to both prisoners and staff. In the context of lifting Crown immunity, the disability regulations must apply. A Prison Service order is not good enough. An explicit duty must be laid on the Prison Service, quite separate from anything connected with its sponsoring department.
That is the purpose behind the amendment. The current treatment of disabled people in prison is not adequate for a whole range of disabilities, as has been mentioned many times. Merely putting a requirement in a Prison Service order does not add any urgency to the requirement to put the situation right, but I believe a duty would. I beg to move.
My Lords, your Lordships will forgive me for joining in the debate at this very late stage. The noble Lords, Lord Low and Lord Ramsbotham, who did a very good job of bringing forward the amendment, have a very good point here. The prison population has a high number of disabled people, who are mainly unidentified.
My interest in dyslexia is probably fairly well established in this House. The number of undiagnosed dyslexics in the prison population is unacceptably high; the only question is how high. I have seen work recently that identifies them as being roughly 50 per cent of the prison population. The same study, at Chelmsford prison, which did a good job of identifying people who were avoiding education and thus not taking themselves forward, was also identifying a lot of people with similar types of problems due to head injury. The biggest problem they had was short-term memory loss, which tends to lead to language function loss and so on, which means bad organisation. Where that was identified and dealt with, the knock-on effects were surprising. One of them, I was told by a prison officer I spoke to, was that the number of assaults had decreased dramatically, because the amount of defensiveness among a large part of the prison population had dropped. Consequently, so had the touchiness and the number of flare-ups. I asked the prison governor how many people it took to deal with one assault. He said it took about nine people for half a day. The cost implications of getting a duty that allows you to take action, and which is suited to the environment, have to be massive. Why are we not introducing such a duty here?
When I have represented disability interests I have not been above saying, "Poor people, we are all nice", and so on. But disability runs across all sections of society. Unfortunately, certain groups in society have a slightly higher propensity to commit crime, according to the statistics. If you can identify them you stand a chance of breaking the offender cycle, before middle age basically knocks it out of them and you are left with an almost unemployable person.
This type of duty stands a chance of being able to deal with the situation. It is absurd, given the amount of time and effort we have put into getting legislation, that groups with more obvious disabilities, such as being in a wheelchair, should be excluded from the equality duty. We are not saying that they should be allowed out of prison earlier or that they should not be sent there in the first place, but merely that, once they are there, reasonable adjustment should be made for their situation. Surely the Government should embrace that. They have resisted it in the past, but I hope they are starting to think more coherently about the problem.
My Lords, I support the amendment. I served on the board of visitors of a young offender institution, now a monitoring board, for 27 years. During that time I was often given disabled inmates. They had all sorts of disabilities; I remember two severely deaf boys, blind inmates, people who had cerebral palsy, and of course there were those with mental health problems—they are in every single prison in the country. Also, sadly, we had one young man who had asthma. He told the prison officers that he thought he was going to die, and they did not believe him. The young man died. It was tragic; he was a young lad of 17.
I have visited many different prisons and young offender institutions. Like my noble friend Lord Ramsbotham, I once visited HMYOI Onley, but for a different reason: the institution was running a project where the young men were helping young people with mental problems who came in and used their gym. That was very good, because they were doing something to help other people. That, I feel, is rehabilitation.
At that institution was a young man who was paraplegic. He had committed a serious offence. He was housed in the hospital wing because of space, but the prison officers wanted to integrate him on a wing. He wrote to me and rang me because he was desperate. He was put in a cell but could not turn his wheelchair because the room was too narrow. In the end, he had to go back to the hospital wing, because there is always more space there, but the people there are not integrated into the whole prison. A lot should be done.
I am a member of the All-Party Group on Prison Health here in Parliament. We look at health problems and visit various prisons. Last year, we went to Leeds prison, which has become a sort of dumping ground for disabled people for the north of England because it has some facilities for them. That prison had a tetraplegic—someone paralysed from the neck down—who also had a problem with his leg, and he had MRSA. There were many other prisoners with different disabilities who were causing the prison a lot of difficulties. They needed a special bed for the tetraplegic inmate, and they had managed to get one. Maybe, now that the NHS is looking after health problems in prisons, the situation will get better, but disability is often right down at the bottom of the list. When I served in the Yorkshire health region, I was always having to remind people about disability needs: people forget. Provision in the Bill is therefore necessary.
I hope the noble and learned Baroness the Lord Chancellor—I am sorry, the Attorney-General, the appointment on which I congratulated her yesterday—will be able to do something. We were told that a report was being done by a Minister in the other place, but he has probably moved on now. Someone must take that up and carry on. Disability covers a wide variety of people throughout the country. I hope she will take this seriously.
My Lords, I support the amendment, which has the crucial support of the Disability Rights Commission. As we know, the Disability Discrimination Act 1995 gave the DRC the right to be consulted on additions to the specific disability equality duties, so it is important that it is in favour of the amendment. The Prison Reform Trust and Diabetes UK have reported cases of hypoglycaemia being treated as a disciplinary issue. I do not have my noble friend's experience of prisons, but as a member of the murder and life imprisonment inquiry in 1989 I visited a few prisons. My noble friend Lord Ramsbotham said that the existing Prison Service disability equality scheme covers only staff and he said that it should apply also to prisoners. He also put in a plea for disabled visitors. I found that there was nothing there for a disabled visitor. Parkhurst changed and improved its disabled loo because of my visit. One was discovered in Durham jail that no one knew existed. There was another upstairs but there was no lift to get up to it. I hope that that was changed, but I would put in a plea for visitors to be included under the scheme.
My Lords, I support the amendment wholeheartedly. We have had briefing from the Disability Rights Commission and my noble friend Lord Ramsbotham has explained the background. Had my noble friend Lord Low been here, I am sure that he would have added a few more vibrant descriptions of some of the horrors that are experienced by disabled people, but we have been lucky enough—at least I have—to have received a briefing from his assistant, William Moy, who has done an effective job in setting out a range of areas where there are clearly problems and a lack of awareness. This equality scheme must go broader than just staff and apply equally to visitors and families, but surely it must also apply to the training of staff, so they understand and can look for the points at which they may wish to refer to a doctor or call in some other form of specialist help. With all that as a background, I do not want to repeat everything that has been said. We had some poignant cases at the end picked out from Sean Humber's published prison report from the journal of the Prison Reform Trust, all of which make fairly horrifying reading, not to put too fine a point on it. Along with my noble friends who have already spoken, I hope that the noble and learned Baroness the Attorney-General will be able to see her way through to doing something.
My Lords, I will speak briefly in support of the amendment. The punishment of prison is to be deprived of one's liberty and disabled prisoners should not have an additional punishment of being treated unequally and having less favourable treatment. Only if every prison is required to produce a disability equality scheme will we ensure that they start to make progress in doing such things as ensuring that disabled prisoners have equal treatment and opportunity in taking part in education, in employment schemes, library services, behavioural programmes or visits. I hope that my noble and learned friend the Attorney-General will see her way to support the amendment.
My Lords, may I say how charmed I have been by listening to all the different manifestations of my name? I will value each and every one of them. The noble Baroness, Lady Anelay, seems to have slipped one past me on this occasion. I take this opportunity to congratulate her on her new role. I feel a little distressed that because of the nature of that role we may no longer have her constant appearances at this Dispatch Box and I hope your Lordships agree that her party has therefore done this House a great disservice.
I am very grateful to the noble Lord, Lord Ramsbotham, for raising the issue. I know that the noble Lord, Lord Low, is not in his place, but it is an important issue and it does honour to this House that so many have spoken in the debate who have great knowledge and passion for it: the noble Baronesses, Lady Masham and Lady Darcy de Knayth, and my noble friend Lady Wilkins, together with the fine advocate for disability and dyslexia in particular, the noble Lord, Lord Addington. These are important issues.
We also have an opportunity to debate how we are responding to the issue. I hope that I made it in clear when we last spoke about it that the Government are firmly committed to tackling all aspects of discrimination and inequality across the criminal justice system. I hear loudly the comments that have been made by those who accurately say that disability should not form a secondary punishment in relation to the criminal justice system. I know that the noble Lord, Lord Ramsbotham, is concerned about how disability issues are handled in the public and contracted-out Prison Service, particularly in relation to prisoners. The noble Lord, Lord Low, made that point. The noble Baroness, Lady Darcy de Knayth, makes a good point about visitors, as does my noble friend Lady Wilkins.
However, the amendment would require that each individual prison establishment, whether managed by Her Majesty's Prison Service or contracted out, has a separate disability equality scheme and that they each publish a report on the same. The Government consider that it would be disproportionate to make each and every individual prison a separate entity under the Disability Discrimination Act. We do not require the same under the Race Relations Act, nor do we require it of police stations, which stand in a similar relationship to the police authorities. I hope that my comments will in no way diminish the importance of this because I hope that I will be able to explain how we are going to respond. That said, I understand the basis of the concerns of all noble Lords who have spoken. As my honourable friend Gerry Sutcliffe made clear in his recent letter to the noble Lord, Lord Low, on the subject, the Government accept that there are shortcomings in the current Prison Service disability equality scheme and that it does not currently adequately address issues relating to prisoners.
That is why Her Majesty's Prison Service is currently drafting an expanded disability equality scheme to cover prisoner issues in greater depth. This is despite the fact that Her Majesty's Prison Service is not currently specified in the legislation as a separate entity. The Prison Service order on prisoners with disabilities is also being revised and updated, and will introduce a mandatory requirement for all prisons, both public and private, to produce an individual action plan detailing obstacles which need to be overcome and the necessary actions to be taken at local level.
All prisons, whether publicly run or contracted out, are required to abide by all applicable Prison Service orders—of which I can assure the House this will be one. In publicly run prisons, compliance with the order is enforced by operational management. The Prison Service standard, which supports the Prison Service order, is auditable and will be revised to include the requirement to produce an establishment action plan. In contracted-out prisons, compliance is enforced through the management of the contract by the National Offender Management Service. Failure to meet the requirements of the order would have contractual implications for the companies managing the private prisons.
The Government believe that the revision of the Prison Service order and the requirement to produce local action plans is the most appropriate and the most effective way of meeting the concerns which were raised by the noble Lord, Lord Low, on the previous occasion and very ably by the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Howe, and all those who have spoken.
I should point out that the amendment is technically deficient as the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005, as amended on
I very much welcome this debate, and the support from all sides of the House for the principle of challenging discrimination on any grounds in the delivery of public services. I do not believe that this amendment will help us to achieve any greater compliance from prisons with the spirit and letter of the Disability Discrimination Act than the existing provisions, but I very much welcome the opportunity to have said what I have said, and put it on the record so that it can be returned to if it is found that the assurance that I have given to the House is not being properly complied with. I know that that will be used to good effect by all those Members of the House who retain an interest in these issues.
My Lords, as the noble and learned Baroness said, we have had an extremely valuable debate marked by the contributions of those with detailed personal knowledge of the problems and an understanding not only of what it is to be disabled but to face double jeopardy, as it were, in prison.
I was not referring to individual prisons; I understand where the noble and learned Baroness is coming from there. I felt that the issue concerned the Prison Service as a whole. However, it would be churlish of me not to accept what the noble and learned Baroness said and the assurance that she gave. Therefore, it behoves us to go away, to read the Official Report and to think about it, with the option of bringing the amendment back rather than pressing it at this stage.
My Lords, before my noble friend withdraws the amendment, I should point out that the Disability Rights Commission states that, unlike full disability equality schemes—after all, every school has to produce an individual equality scheme—
"'Action plans' do not guarantee the involvement of disabled people in their drafting, the gathering of data or review which are intrinsic to disability equality schemes".
My Lords, that is precisely the point I was making about looking at the assurance and checking the measure against that which applies in the Probation Board, schools, NHS trusts and others, which have had to form schemes under the legislation, to see whether it matches theirs. It should have the same bearing on the Prison Service.
My Lords, I know that I am not supposed to respond further, but I shall take back this matter because it accords with our good practice to involve stakeholders. I wanted to add that because it might help.
moved Amendment No. 33:
After Clause 26, insert the following new Clause—
"Offender Management Board
(1) There shall be a board to be known as the Offender Management Board ("the Board").
(2) The Board shall be based within the Ministry of Justice.
(3) The members of the Board shall include—
(a) the Secretary of State who shall act as chairman,(b) the Director-General of the Prison Service,(c) the Director of the National Probation Service,(d) the chairman of the Youth Justice Board,(e) the Commissioner for Women appointed under section (Commission for Women Offenders), and(f) other persons who the Secretary of State may nominate.
(4) The Board shall be responsible for—
(a) disseminating policy to, and(b) establishing good practice with respect to, all organisations involved in the operation of the offender management system.
(5) In carrying out its functions, the Board shall comply with any directions given by the Secretary of State and act in accordance with any guidance given by him."
My Lords, Amendment No. 33, which we tabled previously, concerns an offender management board. This time I have added a link to with Clause 34. Therefore, I shall speak also to Clause 34. I refer to the very specific addition to the members of an offender management board of the Commissioner for Women, whom I hope will be appointed as a result of the recommendations of the Corston report.
My reason—and that of my noble friend Lady Howe—for adding a further paragraph to the amendment concerning the Commission for Women Offenders is to seek enlightenment from the noble and learned Baroness. In May, I tabled a debate on the women's commission issue. At her request, I withdrew the debate because she said that she would produce a formal response to that and therefore it made sense to have a debate based on the government response. I accepted that and withdrew the debate. Since then, the noble and learned Baroness has moved to another position. I was told that I should instead contact Vera Baird in the Ministry of Justice, who is now the Minister responsible. I wrote to her. I have not had a reply, which is not surprising as she is no longer in that position either. Therefore, one of my purposes in tabling the amendment is to ask the noble and learned Baroness, before she moves from her position, what exactly will happen and when we can expect the matter to be debated. It is hugely important to have women's issues properly tackled. They must be represented on an offender management board. That is my purpose in retabling the amendment. I beg to move.
My Lords, I assure the noble Lord, Lord Ramsbotham, that although I have changed my role I have not disappeared. This issue is certainly of acute interest both to myself and to the new Solicitor-General, Vera Baird. The issue is under consideration across government and in due course there will be a comprehensive response to my noble friend's report. We shall then be able to take these issues forward.
My Lords, I shall not reiterate what my noble friend said, but we were all very much looking forward to hearing something about this. The number of women prisoners has almost doubled in 10 years but they are still a small proportion of the prison population. I was enthused by the Corston report. Given the quality and the experience in your Lordships' House, I should have thought this would have been an area on which we would be consulted, and that the appropriate department might take our views into account when thinking the matter through.
Unsurprisingly, the report suggests that if women should be in prison at all—I shall say a few words about that in a moment in relation to my visit to Downview—they should be in small, easily accessible units. Those units should, if possible, be situated in cities, although that may be a little unfair to those who live in rural areas. However, they should be situated in easily accessible areas to enable family members such as husbands to keep in contact. As we all know, families are likely to stay together longer if such contact is maintained, and, we hope, long enough for the children to get the full benefit of that.
The idea went through my head—noble Lords might think it quite mad—that, although a couple of women's prisons have already been sucked into the male circuit, if all of them became male prisons, that would provide places to resolve prison overcrowding and the new set-up could begin almost at once. The rather splendid idea of providing these sorts of prisons could be introduced. That may or may not make sense.
I visited many women's prisons while I served on the Parole Board, but on my recent visit to Downview I was struck by two things. First, all the women participating in an excellent course to train to be communicators and run a television unit were hard on me, asking why on Earth women had such long sentences compared to men. Only about a third of them, compared to many more men, had previous convictions when sent to prison. When one thinks it through, quite a lot of them were there for carrying drugs, maybe as mules, but then we need to think why and who sent them there. Were they subject to abuse? Were they in some form of slavery? I suspect that that side has not been sufficiently researched for some time, and it reinforced my thoughts about this range of issues.
At Downview it appeared that a number of good initiatives were going on. One brilliant woman won a prize from Asda—I think I mentioned that to the noble and learned Baroness—and the television unit made a film about it. She was given a great deal of attention by the local Asda. Out of all that came the interesting thought that Asda central office was not taking the view that all Asdas might take in offenders, think of them in this way and get rid of the awful feeling that anybody who has been in prison should not be recruited. It could have done that, but it has not. If the noble and learned Baroness, as I suggested to her, got Asda central and other companies likely to behave in the same way involved, you could extend enormously the number of employers—when a lot has already been done to get them aboard—that would take on the problem.
We should think about women as part of the scene, as a crucial part of society. I think the noble Baroness, Lady Corston, wanted a report in six months. Well, we have had another amendment passed that is looking six months hence. I would like some assurance from the noble and learned Baroness that the important and rather different role of women is being taken account of and that wider consultation is going on rather than just inward discussion.
My Lords, I apologise; the misunderstanding is my fault. I tried to bring forward the commissioner amendment and to speak to why I was proposing that the commissioner for women should be on the offender management board. I apologise if I caused any confusion because my noble friend has been saying something that needs to be said, and the importance of women must be recognised. If it is not appropriate to speak now to the commissioner issue, I would welcome guidance on whether I should now reply to what the Minister said.
My Lords, I do not have the precise reference in the Companion, but it is pretty clear about the rules of debate on Report. I apologise if that is the case, as I feel constrained myself in offering advice to the noble Lord, but that is how the House is supposed to work.
I refer the noble Lord to paragraph 7.134 on page 122 of the Companion, which states:
That is the position.
My Lords, I accept that and it is clear that I should have tried to amend the grouping before it came out. I failed to do that because I did not see it until late.
The issue has been raised, and I understand the noble and learned Baroness as saying that it will come back to the House in the form of a major debate. I hope there will be one, because then we could raise these issues in a much wider context.
I was concerned to hear the other day how suddenly one of the women's prisons, Cookham Wood, had been changed into a male young offenders' establishment. An enormous number of good things had been going on in Cookham Wood. Many organisations had been funded by voluntary foundations to do work there, and imaginative programmes were being introduced, but all those have gone. One of my reasons for suggesting that we have a commissioner for women right at the heart of any offender management planning is that that sort of issue could be better represented by someone who knows all the issues, knows what is going on and can fight the case to prevent the unnecessary destruction of a vast amount of good work specifically designed around the needs of women and young women to prevent their reoffending. I apologise for the confusion caused. I beg leave to withdraw the amendment.