Office of Public Sector Information
96.Subsection (2) ensures that the new power to detain extends to a prisoner custody officer performing contracted out functions at a directly managed prison.
97.Subsection (3) amends the Criminal Justice and Public Order Act 1994 by inserting a new section 9A which gives a custody officer in a secure training centre a power to detain, equivalent to that in the new section 86A of the 1991 Act.
98.Subsection (4) makes clear that the new section 9A power extends to a custody officer performing contracted out functions at a directly managed secure training centre.
99.Subsection (2) of this section amends the 1991 Act further by inserting a new section 86B.
100.Section 86B provides a mechanism for authorising a person working at a contracted out prison who is not a prisoner custody officer to perform restricted activities. Such activities are those that would involve the performance by the worker of a custodial duty. A custodial duty can only be performed by prisoner custody officers, owing to the effect of section 85(1) of the 1991 Act.
101.The new section 86B enables the Secretary of State to specify in an order subject to negative procedure the activities that a worker may be authorised to carry out. The director of a prison in which that worker is working may then authorise a worker to carry out one or more of the listed restricted activities. Any authorisation may be limited or given in general or specific terms and be given either to individuals or a defined class of persons. Finally, none of the powers conferred by the section permit the use of force by a worker when carrying out a restricted activity. That will not prevent the use of force in circumstances where it is authorised by another enactment or the common law.
102.Subsection (3) provides that section 85(1) of the 1991 Act, which requires custodial duties to be performed only by a prisoner custody officer, takes effect subject to the new section 86B.
103.This section removes the prohibition in section 85(3) of the Criminal Justice Act 1991 that prevents a director in a contracted-out prison from exercising certain adjudication and segregation functions. The effect of this amendment is that a director, rather than a controller (who is employed by the Ministry of Justice and currently exercises the functions in question) will be able to inquire into a disciplinary charge laid against a prisoner, conduct the hearing of a charge or make an award in respect of any charge. All such proceedings will take place in accordance with the Prison Rules or the Young Offender Institution Rules, as appropriate. By virtue of the amendments made by this section a director will also be able to segregate prisoners, temporarily confine prisoners or apply special controls or restraints on a routine basis. At present, these powers are available to a director only in an emergency.
104.This section makes two small amendments to section 87 of the Criminal Justice Act 1991. The principal effect of the Section is to enable the search powers vested in “authorised employees” under section 8A of the 1991 Act, together with the mechanism for authorising those searches, to apply in a contracted-out prison. Accordingly a director of such a prison will be able to authorise employees who are not prisoner custody officers to carry out “rub down” searches in accordance with section 8A.
105.This section replaces section 39 of the Prison Act 1952 with a new section 39 to bring the terminology up-to-date and in line with the terminology used in the new offences on the conveyance of prohibited articles in and out of prisons contained in section 22.
106.This section replaces section 40 of the Prison Act 1952 with new sections 40A, 40B and 40C. These new sections clarify the existing law, make changes to the penalties and mode of trial for certain offences and create new offences of taking mobile phones, sound recording devices and cameras into a prison.
107.New section 40A defines the categories of article which are referred to in sections 40B and 40C. There are 3 groups (described as List A, List B and List C) of prohibited items. Subsection (2) provides for List A (dangerous articles and controlled drugs). Subsection (3) provides for List B articles (alcohol, mobile telephones, cameras and sound-recording devices). Subsection (4) defines “camera” and “sound-recording device”. Subsection (5) provides that the reference in list B to a mobile telephone, a camera or a sound-recording device includes component parts and articles designed or adapted for use with those articles as well as the articles themselves. Subsection (6) provides that a list C item is an article or substance that has been prescribed as such by the prison rules.
108.Subsection (7) enables the Secretary of State to amend new section 40A by adding, repealing or modifying an entry to List A or B or any provision for the interpretation of the section. An Order relating to List A articles is exercisable by statutory instrument and is subject to the affirmative procedure. Where an amendment is made to the list of List B articles then the order is subject to the negative resolution procedure. Section 22(2) makes the necessary consequential amendments to section 52 of the Prison Act 1952 which deals with the Secretary of State’s power to make orders under that Act.
109.New section 40B makes it an offence to convey List A articles into or out of prison without authorisation. Subsection (1) details the type of conduct which is covered by the new offence. Subsections (2) to (5) define “authorisation” and detail how the authorisation may be given and by whom. Subsection (6) sets out the maximum penalty and mode of trial for the new offence.
110.New section 40C makes it an offence to convey List B or C articles into or out of prison. Subsections (1) (List B) and (2) (List C) detail the type of conduct which is prohibited by the new offences. A person commits an offence if he carries out a listed activity without authorisation. Subsection (4) provides for defences where the accused individual reasonably believed he had authorisation or where there was an overriding public interest which justified the doing of the prohibited act. Subsections (5) (List B) and (6) (List C) set out the maximum penalty and mode of trial for the new offences.
111.This section inserts new sections 40D and 40E to the Prison Act 1952. These new sections create new offences of taking a photograph or making sound recordings within a prison or transmitting images or sounds from a prison without authorisation. It also creates an offence of taking a restricted document out of a prison.
112.New section 40D creates the offence of taking a photograph or making sound recordings in a prison or transmitting any image or sound by electronic communications. Subsection (3) creates offences designed to prohibit the conveyance or transmission of restricted documents out of a prison. Subsection (4) provides for defences where the accused individual reasonably believed he had authorisation or where there was an overriding public interest which justified the doing of the prohibited act. Subsection (5) sets out the maximum penalty and mode of trial for the new offences.
113.New section 40E gives details of how an authorisation may be given and by whom. It also provides definitions of terms used in the new sections and makes minor repeals of, and consequential amendments to, the Prison Act 1952.
114.New section 40F extends Crown immunity in relation to offences under new sections 40B, 40C and 40D to designated persons working at a prison. This ensures that all relevant staff can be treated the same in relation to the new offences.
115.Historically, prison health services were provided via a requirement in the Prison Act 1952 for each prison to appoint a medical officer. From April 2003, prison health services became the responsibility of the Secretary of State for health under separate existing legal provisions. This section removes the original requirement in the Prison Act 1952.
116.The original medical officer role is at odds with modern professional management of health services and the development of multi-disciplinary clinical teams and the role as envisaged by the original legislation has become defunct. As the NHS, in the form of Primary Care Trusts, have now assumed statutory responsibility for local prison health services, the original medical officer role is no longer required.
117.Section 26 provides for the change of name from “Boards of Visitors” to “Independent Monitoring Boards” and replaces references to “Boards of Visitors” in the Prison Act 1952 with the title “Independent Monitoring Boards”. It also removes the requirement in section 6 of the Prison Act 1952 that at least two members of the Board must be magistrates.
118.This section makes a small amendment to section 8A of the Prison Act 1952 by providing that a person who is not necessarily an employee of a prison, but who is working there can be authorised to carry out a “rub down search” under section 8A.
119.This section permits a polygraph condition to be included in the licence of an offender convicted of a specified sexual offence who is released from custody into the community on licence. Any offender released from custody with such a condition would be required to undertake polygraph tests. Polygraphy is a means of measuring certain physiological responses that may be associated with deception. The purpose of the polygraph test is to monitor whether offenders are complying with their licence conditions or to improve the management of the offender during his release in the community on licence.
120.Subsection (1) permits the Secretary of State to include a polygraph condition in the licence of a person covered by subsection (2). The term ‘licence’ refers to the licence issued to certain offenders on release from relevant custodial sentences, which specifies the terms of their conditional release from prison. Current legislation allows certain conditions to be set in release licences – this legislation extends this to enable the addition of a requirement to undertake polygraph testing in the case of offenders serving sentences for relevant sexual offences.
121.Subsection (2) specifies the offenders who may be required to undertake a polygraph test, namely those who have served a relevant custodial sentence for a relevant sexual offence and who are released on licence and are not aged under 18 on the day of release from custody.
122.Subsection (3) defines ‘relevant custodial sentence’ for the purposes of subsection (2).
123.Subsection (4) defines ‘relevant sexual offences’ for the purposes of subsection (2).
124.Subsection (5) amends the Criminal Justice Act 2003 to enable the polygraph condition to be inserted in the licence of a prisoner released under that Act, provided that he meets the eligibility requirements for having a polygraphy condition included in his licence.
125.This section sets out the requirements placed on an offender where polygraph testing is set as a condition of licence, describes a polygraph session and permits the Secretary of State to make rules to govern the conduct of polygraph sessions.
126.Subsection (1) describes the requirements of a polygraph condition. When imposed, such a condition requires an offender to participate in a polygraph session with a view to monitoring his compliance with the other conditions of his licence and improving his management on licence in the community. It also provides that an offender must participate in a polygraph session in accordance with instructions given by the appropriate officer and comply with instructions given him by the polygraph operator.
127.Subsection (2) describes what takes place during a polygraph session. During a polygraph session, the polygraph operator conducts a polygraph examination and interviews the offender in question in preparation or in connection with that examination.
128.Subsection (3) describes a polygraph examination. The polygraph operator questions the offender, and the offender’s answers are recorded. In addition, the physiological reactions of the released offender are measured and recorded by means of equipment approved by the Secretary of State.
129.Subsection (4) defines who is an ‘appropriate officer’ for the purpose of subsection (1).
130.Subsection (5) requires appropriate officers to have regard to any guidance issued by the Secretary of State with regard to instructions that an appropriate officer may issue with regard to attendance at polygraph sessions.
131.Subsection (6) enables the Secretary of State to make rules regarding the conduct of polygraph sessions.
132.Subsection (7) states that rules made under subsection (6) may include the qualifications that polygraph operators must satisfy, the way in which records of polygraph sessions are to be kept and the way reports on the results of polygraph sessions are to be prepared.
133.Subsection (8) states that the power to make rules as described in subsection (6) is excercisable by statutory instrument subject to the negative resolution procedure.
134.This section provides that any statement made by a person during a polygraph session or any physiological reaction made during such a session may not be used in criminal proceedings in which that person is the defendant.
135.Currently section 202 of the Criminal Justice Act 2003 makes provision for an ‘accreditation’ body to accredit programmes. The Correctional Services Accreditation Panel (CSAP) is designated as the accreditation body and is an advisory non-departmental public body. The Panel replaced the Prison Service’s General and Sex Offender Treatment Programme Accreditation Panels established by the Prison Service in 1996.
136.The establishment of the National Offender Management Service (NOMS) has created a different framework for the provision of correctional services. The separation of commissioning from operational delivery has secured the independence from service providers necessary for NOMS to make accreditation decisions itself in relation to offending behaviour programmes. There is therefore no longer a need for an accreditation body that is independent of NOMS and constituted as a non-departmental public body. This section amends section 202 of the Criminal Justice Act 2003, making provision for the Secretary of State to accredit programmes in place of the accreditation body. Decisions on accreditation will be taken after consulting and receiving advice from an independent non-statutory panel of experts to replace the CSAP.
137.Section 41 of the Crime and Disorder Act 1998 (“the 1998 Act”) deals with the Youth Justice Board. Section 41(5) of the 1998 Act lists the functions of the Youth Justice Board and section 41(6) enables the Secretary of State, by order, to allow the Board to exercise concurrently with him his own functions in relation to the youth justice system. The Youth Justice Board already exercises Secretary of State functions in relation to the placement of offenders sentenced to a Detention and Training Order.
138.Subsection (2) of this section amends section 41(5) of the 1998 Act to enable the Secretary of State to ask the Board to assist him in carrying out his functions in relation to the release of offenders in youth detention accommodation.
139.Subsection (3) allows the Secretary of State, in an order under section 41(6), to restrict the manner or classes of case in which the Youth Justice Board may exercise functions of his in respect of individual offenders. The Secretary of State is also given power to include in the order supplementary, incidental or consequential provisions.
140.This section introduces an element of flexibility into the arrangements for early release from the custodial part of the Detention and Training Order. Young offenders serving Detention and Training Orders of 8 months or longer may be released one month before the mid-point of their sentence. Those serving orders of 18 months or longer may be released either one or two months before the mid-point. At present, early release, where authorised, must take place exactly one or, where appropriate, two months before the mid-point. If anything happens to prevent this, the young person must remain in custody for a further month (i.e. until the halfway point of a sentence or the second early release point in the case of sentences of 18 months or longer).
141.The amendments made by subsection (1) enable the trainee to be released at any point during the last month before the mid-point of the order (or two months, in the case of orders of 18 months or longer).
142.Subsection (2) specifies that this new flexibility will apply to orders made before the section comes into force as well as those made subsequently.
143.Detention and Training Orders are in two parts: the first spent in custody and the second under supervision in the community. At present, the young person (or “trainee”) must be placed, during the custodial part, in one of the types of “secure accommodation” listed in section 107 of the Powers of Criminal Courts (Sentencing) Act 2000.
144.The amendments made by the section provide that (unless he or she has attained the age of 18) the trainee must be placed in “youth detention accommodation”. This category is wider than the current “secure accommodation”. In future, it will be possible, for example, to place a young person in other forms of local authority accommodation as well as in a secure children’s home. Trainees who are sent back to custody because they have breached the terms of their notice of supervision or committed a further offence during the community part of the order must, unless they have reached 18, also be placed in “youth detention accommodation”.
145.Subsection (6) replaces the list of “secure accommodation” with a new list of “youth detention accommodation”. Subsection (6)(b) adds, as a type of “youth detention accommodation”, secure accommodation provided on behalf of a local authority to the list of allowable types of placement. (Secure accommodation provided by the local authority itself is already on the list.). Subsection (6)(c) removes the requirement that accommodation, directed by the Secretary of State to be “youth detention accommodation”, must have the purpose of restricting liberty as its purpose.
146.Arrangements for conveying juvenile offenders between courts, custodial establishments, police stations and hospitals are currently provided in the Criminal Justice Act 1991 and the Criminal Justice and Public Order Act 1994. This section extends the provisions of the 1994 Act. It gives authority for the transporting of a greater range of detained young persons between a wider range of types of premises, including young offender institutions, secure training centres and secure children’s homes. Transporting of remanded, as well as sentenced, young people is covered, between any of the types of youth detention accommodation defined in section 107(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (as amended by section 25(7)), as well as courts, police stations and hospitals.
147.This section sets out the level of parliamentary scrutiny applicable to orders and regulations made under the Act. It does not apply to commencement orders which are not subject to any Parliamentary procedure. Save for orders made under section 5(3)(c), section 14(2)(h) or (7), section 15 or section 38(2)(a), which are subject to the affirmative procedure, orders and regulations will be subject to negative resolution procedure.
148.This section gives the Secretary of State authority to spend money provided by Parliament for the purposes of the Act.
149.This section enables the Secretary of State, by order, to make any supplemental, incidental or consequential provision, and any transitory, transitional or saving provision which he considers necessary to give full effect to the Act.
150.Subsection (2)(a) states that such an order may amend, repeal or revoke any enactment and subsection (2)(b) states that the order may also provide for any provision of this Act which comes into force before another provision has come into force to have effect until that other provision has come into force, with specified modifications. The power in subsection (2)(a) is subject to the affirmative procedure by virtue of section 36(3)(d).
151.Subsection (3) makes clear that the reference to an enactment in subsection (2) includes legislation which is passed or made before the end of the 2007/2008 parliamentary session.
152.This section gives effect to Schedules 3, 4 and 5 which deal with minor and consequential amendments, transitional provisions and savings, and repeals respectively.
153.The Bill forms part of the law of England and Wales only, save for the exceptions listed.
154.This section sets out the arrangements for bringing into force the provisions of the Act.
155.Subsection (1) states that the preceding provisions shall come into force on a day which the Secretary of State may, by order, appoint.
156.Subsection (2) states that different provisions may be brought into force at different times and in different areas.
157.Subsection (3) states that orders under this section may include transitional provisions or savings.
158.Subsection (4) provides that, unless making provision as set out in subsections (5)(a) and (6), an order made bringing into force anything in sections 24 or 25 (which relate to polygraph testing) will be subject to the affirmative resolution procedure.
159.Undersubsection (5)(a), the Secretary of State may by order bring polygraph testing as a condition of licence into force in a specified area for a specified period.
160.Subsection (6) provides that an order made under subsection 5(a) may be amended by a subsequent order so as to extend the period in which polygraph testing as a condition of licence is in force in respect of the specified area.
161.This Section sets out the short title of the Bill.
162.Paragraph 1 states that a probation trust is a body corporate and that its name is that specified in the order. It is envisaged that the order will name the probation trust in accordance with the geographical area in which it is based but without limiting the trust’s area of operation to that geographical area.
163.Paragraph 3(1) specifies that a probation trust shall comprise a chairman and no fewer than four other members appointed by the Secretary of State. In practice, it is envisaged that most trusts will have more members than this but the legislation allows flexibility for the number to vary between trusts and over time, depending on the nature and scale of an individual trust’s business. A trust shall also include the chief executive who will become an ex officio member on appointment. Paragraph 3(2) clarifies that, where subsequent provisions refer to an “appointed member” of a trust, this refers to a member appointed by the Secretary of State; it does not include the chief executive.
164.Paragraph 3(3) states that, where practicable, at least one of the appointed members of a trust must, when appointed, be a member of a relevant local authority. Paragraph 3(4) defines “relevant local authority” for these purposes.
165.Paragraph 5 states that the Secretary of State shall pay appointed members and pay, or make provision for the payment of, pensions etc. In both cases, the level of such payments is for the Secretary of State to determine. The paragraph also enables, but does not require, the Secretary of State to compensate a member who ceases to hold office (other than on the expiry of his term) if the Secretary of State deems it appropriate.
166.Paragraph 6 states that the members appointed by the Secretary of State shall appoint a chief executive who shall be an employee of the trust and whose terms of employment are for the appointed members to determine (at present the chief officer of a local probation board is appointed by the Secretary of State). But this would not apply if the Secretary of State were to direct the appointment of the first chief executive of the trust and his terms and conditions.
167.Paragraph 7 sets out the provisions for the appointment of staff. The trust appoints its own staff and sets its own terms and conditions, subject to the proviso (in paragraph 8) that the determination of terms of employment relating to remuneration, fees or expenses and pensions, allowances or gratuities requires the approval of the Secretary of State.
168.Paragraph 9 enables the trust to regulate its own procedure.
169.Paragraph 10 clarifies that the validity of a trust’s proceedings are not affected by a vacancy among its members or a defect in the appointment of any member.
170.Paragraph 11 enables a probation trust to authorise an appointed member, a committee, the chief executive or any other member of staff to do anything that the trust would otherwise have to do itself.
171.Paragraph 12 empowers a trust to do anything it thinks necessary to achieve its purposes, except that it may not hold land or borrow or invest money without the general or specific approval of the Secretary of State
172.Paragraph 13 requires a trust to keep proper financial records and prepare an annual statement of accounts, which may be examined by the Comptroller and Auditor General and, in the case of a Welsh probation trust, the Auditor General for Wales. The paragraph also makes consequential amendments to the Audit Commission Act 1988 (as amended by the 2000 Act), and the Public Audit (Wales) Act 2004.
173.Paragraph 14 requires a trust to comply with any general or specific directions given to it by the Secretary of State and to provide the Secretary of State with information if he so directs.
174.Schedule 2 covers certain matters relating to the abolition of local probation boards or the making or termination of any arrangements for the delivery of probation services.
175.Paragraph 1 states that transfer schemes may be made in connection with this and defines “property transfer scheme”, “property”, “relevant person” and “staff transfer scheme”.
176.Paragraphs 2 to 4 deal with property transfer schemes.
177.Paragraph 2 enables the Secretary of State to make a property transfer scheme to transfer to the Secretary of State the property and liabilities of a local probation board, or a relevant person, or to transfer to a relevant person any property or liabilities of the Secretary of State.
178.Paragraph 3 states that a property transfer scheme takes precedence over any other provisions which might restrict transfers. Such compensation for loss of rights or reverter is to be paid by the transferor and/or transferee as appropriate, and the scheme may include a mechanism for resolving disputes over compensation.
179.Paragraph 4 states that any ongoing proceedings or activities relating to the transferor are to be treated as if relating to the transferee when the transfer has taken place.
180.Paragraphs 5 to 10 deal with staff transfer schemes. The policy intention is that staff who transfer between providers of probation services should have their terms and conditions protected by law. In many cases the Transfer of Undertakings (Protection of Employment) Regulations 2006 will provide the appropriate protection. But, in cases where TUPE does not apply, these paragraphs enable the Secretary of State to make equivalent provision.
181.Paragraph 5 enables the Secretary of State to make a staff transfer scheme to transfer:
employees of a local probation board to a relevant person;
employees of one relevant person to another; or
transfers from providers to the civil service and vice versa.
A scheme may not be made unless any directions about consultation given by the Secretary of State have been complied with.
182.Paragraph 6 deals with transfers between relevant persons or between probation boards and relevant persons and it provides that, when an employee is transferred under the scheme, his continuity of employment is maintained and the rights, duties and liabilities of his previous employer are transferred to the new one. If an employee does not wish to transfer to the new employer, his contract is terminated and he is not to be treated as having been dismissed for the purposes of the Employment Rights Act 1996.
183.Paragraph 7 makes similar provision in relation to employees of probation boards who transfer to the civil service.
184.Paragraph 8 makes similar provision in relation to civil servants who transfer to the employment of a probation trust or other provider.
185.Paragraph 9 makes clear that the Schedule does not prejudice an employee’s right to terminate his employment if his working conditions are changed substantially to his detriment.
186.Paragraph 10 states that, if a contract of employment with either a board or a trust is not transferred to a new employer, the contract is terminated and the employee is treated as having been dismissed for the purposes of the Employment Rights Act 1996.
187.Part 1 makes amendments to the following Acts consequential on the provisions in Part 1 of the Act relating to the new arrangements for the provision of probation services: the Race Relations Act 1976, Interpretation Act 1978, Crime and Disorder Act 1998, Children Act 2004 and Local Government and Public Involvement in Health Act 2007 (at the time of writing, this is still the Local Government and Public Involvement in Health Bill). With the exception of the amendments to the Interpretation Act, these consequential amendments clarify how responsibilities which are currently placed on local probation boards in other enactments will be exercised under the new arrangements. However, most consequential amendments will be made through secondary legislation using the power in section 38.
188.Part 2 makes a number of consequential amendments to existing legislation to reflect the change of name of Boards of Visitors in section 26. “Independent Monitoring Board” is inserted into the Race Relations Act 1976 and Freedom of Information Act 2000 and is substituted for “Boards of Visitors” in the Prison Act 1952, Employment Rights Act 1996 and Powers of Criminal Courts (Sentencing) Act 2000.
189.Part 3 makes amendments to various Acts consequential on the amendments in section 34 relating to the accommodation in which a person may be detained under a detention and training order.
190.Part 4 makes changes consequential to the revision by section 35 of the escort arrangements for young people who are detained, so as to include those remanded or committed to custody and to cover the full range of “youth detention accommodation”.
191.Paragraph 1 deals with what happens when a chief officer of a local probation board is not appointed chief executive of a probation trust. If a local probation board is abolished under the terms of the Act and the chief officer of that board is not appointed as chief executive of a probation trust before ceasing to hold office as chief officer, the Secretary of State may pay such compensation as he considers appropriate.
192.Paragraph 2 deals with what happens when a chief officer of a local probation board is appointed chief executive of a probation trust. In that case, his continuity of employment is preserved and the period he spent as a chief officer (including any previous service as a chief probation officer with a probation committee) will count as a period of employment with the trust.
193.Paragraph 6 makes clear that the Secretary of State may make an order under section 38(1) to provide transitional arrangements, in the event that the new escort arrangements in section 35 are introduced before the sentences of detention in a young offender institution and custody for life are abolished.
194.Paragraph 7 of the Schedule makes transitory provision to cover the possibility that section 59 of the Criminal Justice and Court Services Act 2000 (which provide for the abolition of remand centres) does not come into force before the amendment made by paragraph 8(2) of Schedule 3.
195.This Schedule lists provisions repealed as a consequence of the Act.
196.Resource spending on probation related services for 2007/08 is forecast as £976m. This estimate includes the cost of local probation boards and certain probation related functions that are carried out at NOMS centre such as Estates, Public Protection, Human Resources and Finance. The cost of electronic monitoring is not included in this estimate.
197.The main financial implications arise from implementation of the new arrangements for the provision of probation services in Part 1. Offering other providers the opportunity to demonstrate what they could deliver will incur costs for NOMS in a number of areas, including the administration of procurement exercises, the preparation of providers’ proposals and commissioner requirements, and the management of contracts and in-house contract compliance. These are both affordable within current allocations and expected to be offset and exceeded by the savings from implementing commissioning with contestability.
198.It is not envisaged that Parts 2 or 3 of the Bill would have any significant financial effects.
199.Public sector manpower is not expected to increase as a result of the Bill.
200.The new arrangements for the provision of probation services may result in some public sector staff transferring to the private or voluntary sector. In such circumstances, terms and conditions will be protected by TUPE regulations, or by the equivalent provisions detailed in paragraph 5 of Schedule 2.
201.A regulatory impact assessment was published with the Bill. There are no proposals that have an adverse impact on business. Some additional business opportunities for the small business sector may be created through the increased competition for services.
202.Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The then Minister of State for the Home Department (the Department responsible for introducing the Bill, since which time responsibility has passed the Ministry of Justice), Baroness Scotland of Asthal, made the following statement:
“In my view the provisions of the Offender Management Bill are compatible with the Convention rights.”
203.Sections 1 to 13 and section 15 abolish local probation boards and give the responsibility for providing probation services to the Secretary of State. These are the legislative provisions necessary to enable the Secretary of State to commission probation services from the best available provider, whether in the public, private or voluntary sectors. Probation trusts will be established as the public sector provider with whom he may contract. Section 13 deals with approved premises. The Government expects that most services commissioned under section 3(2) will be regarded as “public functions” for the purposes of section 6 of the Human Rights Act 1998. It is not considered that these sections give rise to any other ECHR issues.
204.Section 14 enables the Secretary of State, providers of probation services and their officers, to share information with each other or with any of the following: other Government Departments; relevant Local Authorities; the Youth Justice Board; the Parole Board; relevant contactors including private prisons; a chief officer of police; any person responsible for electronically monitoring an individual, and any other person specified or described in regulations made by the Secretary of State. The power applies where it is necessary or expedient for certain specified purposes.
Offender Management Act 2007