Joint Committee on Statutory Instruments Thirty-Seventh Report


Memorandum by the Home Office


This memorandum is submitted because the commencement date in these Rules will have the effect of breaching the 21-day rule.

The Rules are made to put on a statutory footing the arrangements for searching trainees that are already operated in practice and thus implement the intention communicated to the Committee by departmental officials at its meeting on 28th April. The Committee subsequently agreed through communications between its clerk and the Home Secretary's Private Secretary that the 21-day rule should be waived.

8th June 1998

Letter by the Home Secretary to the Chairman of the Joint Committee on Statutory Instruments


Your Committee was concerned about the effect of Rule 2 which, as it stands, could allow girls to be strip searched in front of male officers. As you know, as a result of the Committee drawing this matter to my attention, my officials were able to advise you when they appeared before you that I had not intended this effect and that I had given instructions for the rules to be amended. I am very grateful to the Committee for their work on this and I believe that it shows the value of effective Parliamentary scrutiny of the drafting of Statutory Instruments.

The Rules as currently drafted provide that a search may only take place when at least two officers are present. This is for the protection of both the young offender and the officers concerned. Wherever possible, only officers of the same sex as the offender will be present. However, the contract for provision of escorts requires only one person of the same sex as the offender to be available for escort duties in relation to a particular offender. This reflects the operational difficulties over the escorting of what is expected to be a limited number of female trainees and the practical difficulties of having a female custody officer available at any time for escort duties. In practice, under the present contract, we have been assured that the contractor has no intention of using other than officers of the same sex to undertake searches. Nevertheless, it is clearly unacceptable to have in the Rules what we would not wish to see in practice.

I therefore intend to retain Rule 2 (1) to (3) (which are concerned with the conditions under which a trainee may be searched) and to amend the remainder of the Rule to achieve the following:

    (i)    there will be at least two people present during any search, at least one of whom must be a custody officer. The other must be either a custody officer or a police officer;

    (ii)  any search can only be carried out by officers who are the same sex as the trainee;

    (iii)  any strip search can only be carried out in the presence of officers who are the same sex as the trainee.

The provision for a police officer to be present allows sufficient flexibility to avoid practical difficulties, if exceptionally, a second female custody officer was unavailable.

The Escort contract will specify that there must be at least two custody officers of the same sex as the trainee present on escort duties. The Rule described above will provide for a contingency arrangement in the event that, despite the contractual requirement, a second female custody officer was exceptionally not available. In that case, the contractor would be in breach of contract but it would be open to Home Office to agree that exceptional circumstances existed; for the escort still to take place; and for any necessary search to be undertaken under the provisions described above.

My officials have already undertaken to amend the Rules as quickly as possible. Work is proceeding on drafting the necessary amendments. On a question of timing, the normal requirement is for the rules to be made and then to be laid before Parliament 21 days before coming into force. I should welcome your views on whether the Committee would wish to see the 21 days rule waived in order for the rules to come into force as quickly as possible.

Finally, I am aware that the Committee has also studied the Criminal Justice and Public Order Act 1994 (Suspension of Custody Officer Certificate) Regulations 1998 (S.I. 1998/474) and has reported regulation 2(a)(i) for defective drafting. My officials are considering the implications of the point made and will be providing a considered response in due course.

21st May 1998

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