Criminal Justice and Courts Bill
(10 years, 5 months ago)
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Lord Foulkes of Cumnock
“Assault on workers selling alcohol
(1) A person who assaults a worker who is required to enforce or comply with the Licensing Act 2003—
(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment,commits an offence.(2) In this section—
“worker selling alcohol” means a person whose employment involves them selling alcohol under the provisions of the Licensing Act 2003;
“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.
(3) A person who is guilty of an offence under this section is liable—
(a) on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine (or both),(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory minimum (or both).”
Lord Foulkes of Cumnock (Lab)
My Lords, we now move away from great events around the world to rather more mundane matters here at home. None the less, they are very important matters. Noble Lords will recall that last year my colleagues in another place and I in this House moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting a worker in the course of his work. Our goal was relatively simple; it was to create a new, tougher penalty for assaulting people when they are carrying out their work which would encourage prosecutions, act as a deterrent and, most important of all, do justice to the physical and mental suffering of the hundreds of thousands of workers who are assaulted in the course of their employment. Unfortunately, although many noble Lords, including Cross-Benchers and even members of both parties in the coalition, were sympathetic to the general aims of my amendment, it did not succeed.
One of the main concerns raised at the time was that the amendment was too wide in its scope and would cover so many workers that it would be ineffective. I have taken all those criticisms on board in drafting the amendment before the Committee today. Once again, I have had the help of the Union of Shop, Distributive and Allied Workers, one of the most effective unions in the country looking after the interests of its many members in shops and centres around the United Kingdom.
This amendment, unlike the previous amendment, focuses specifically on those workers who are required to enforce and comply with the Licensing Act 2003. They are acting in a policing capacity and if they do not carry out what they are required to do, they are committing an offence. This amendment would create a separate either way offence of assaulting a shop or bar worker selling alcohol. In doing so, it also takes into account another criticism made by the Member of Parliament who is now the new Solicitor-General when a similar amendment was tabled by my colleague, Labour’s shadow Justice Minister, Dan Jarvis. The right honourable Member for Swindon South, our new Solicitor-General, expressed sympathy with the aims of the amendment, but commented that if we were truly serious about higher penalties such an offence should be either way, not summary as was originally intended. I hope, therefore, that my seriousness on this issue has been affirmed to the Solicitor-General, and to those in his party in this House and elsewhere who may have already been sympathetic to the aims of the amendment, as I have taken on board the fact that it should be an either way offence.
For noble Lords who are still sceptical of the case for granting workers who sell alcohol special protection through a separate criminal offence and those leaning towards supporting the amendment, I shall give one example—I have many more, but because of time and because I knew there are other amendments I shall give just one—which captures the issue the amendment seeks to resolve. It is the story of Barry and Teena who own a pub in Leek called “The Priory”. One Sunday night, after the bar had closed, revellers approached Barry in order to purchase some more drinks. It happens again and again like that. Barry rightly refused to serve them. He would have been breaking the law if he had served them. At that stage, one of the revellers threw a glass at Barry’s arm, jumped over the counter and punched the couple’s son, Mark, in the face, splitting his lip. Teena came out to see what was happening and was immediately assaulted by a woman standing behind the bar. Her nose was broken, and when the blood was gushing out of her nose and face, she suffered an asthma attack and needed to be hospitalised. The police arrived, and two people, one man and one woman were arrested. Astonishingly, both were let off with just a caution after that attack. Barry and Teena were two people upholding the law on our behalf, and if they had not done that, they would have been breaking the law. I have other stories, and perhaps I will have another opportunity of telling them.
Why do we need the amendment? This tragic episode and others underline three things which are currently wrong with our criminal justice system. First, and most importantly, the incredibly dangerous and vital public function of workers who serve alcohol goes completely unrecognised. These are men and women who are charged, like the police, with enforcing the law. They must refuse service to those who are underage or too intoxicated. If they refuse to do so, they face legal action, and even the potential loss of their licences and thus their livelihoods. Unlike the police, they have no additional protection for the additional service and for the grave danger it puts them in. What they receive, like all workers, is a clause in the sentencing guidelines—noble Lords who took part in the debate last year will recall this—which makes the assault of a worker providing a public service one of 19 aggravating factors.
There are two problems with the current regime. First, it fails to recognise the additional danger that those who have to sell alcohol face vis-à-vis workers in most other professions and their vital contribution to public order and safety. According to the Health and Safety Executive’s latest figures, alcohol was the trigger to threatened or actual violence in 38% of cases. The second problem is leniency. The regime has produced a system with disincentives to prosecution and which is too lenient. Unfortunately, the fact is that until we start acknowledging the service done by and the added danger faced by those who serve the public alcohol, in a similar manner to how we do with the police, prosecutions will fail to reflect the seriousness of the crime, and victims like Barry and Teena will continue to be deprived of proper justice. At present, as the assault of workers who sell alcohol usually falls into the category of common assault, with the relatively lenient punishments on offer, it results in the Crown Prosecution Service deciding that it is not worth prosecuting. This has been the experience of a range of groups which are supporting my amendment: USDAW; National Pubwatch; the Wine and Spirit Trade Association; the Retail of Alcohol Standards Group, whose members include almost all major supermarkets; and the Association of Convenience Stores. They all support the amendment. Lenient sentencing and a lack of prosecutions feed into a vicious cycle whereby incidents go unreported as workers lose faith in the justice system. Action must be taken.
My amendment will address the problems in three ways. First, by creating a separate offence for assaulting someone who sells alcohol, one that carries a harsher penalty of either up to six months in prison and a fine of up to £500 for those charged summarily—I take what was said earlier about short prison sentences—or, up to two years in prison or an unlimited fine for those convicted on indictment at the Crown Court, the amendment recognises the additional danger faced by this set of workers and their special public service. Secondly, in doing so the amendment will create a greater deterrent through stiffer penalties. I do not want this to happen. I do not want people to be committing this offence and filling up the prisons with all the extra costs involved. That is why having these serious penalties will mean that it is less likely to happen because of the greater deterrence. Thirdly, I hope it will encourage more prosecutions as a new separate offence is easier to determine than common assault, as the Minister knows. I am very pleased that he is dealing with the amendment today. We are not related, but I have developed a friendship with him since he joined this House, and I know he takes his work and this kind of matter very seriously indeed. Common assault, which is currently how such acts are classified, has a number of mitigating and aggravating factors. As this carries stiffer penalties, it would incentivise the CPS to make more prosecutions.
In conclusion, I believe that the amendment would offer greater protection to workers selling alcohol—something that it is often all too easy for us in the comfort of this Chamber to take for granted. The time has come finally to acknowledge the grave danger often faced by those who serve us and enforce our law in the pubs, clubs, bars and shops that all of us frequent and love so much. The time has come for those of us in this Chamber who benefit from their actions to do something to acknowledge that and return the favour to them. I have much pleasure in moving this amendment. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, many years ago, I was a shop worker. Although I never sold alcohol, I certainly recall having to deal with difficult situations. I was then a member of USDAW and active in the trade union so I am delighted to speak in support of the amendment today. USDAW is one of the most effective unions operating in the UK today. For many years, it has run its Freedom from Fear campaign, which raises the issue of shop workers put in difficult and threatening situations just because they are going about doing their job. It has put proposals to the Government and others to ensure that shop workers—in this case, people working in pubs, bars and clubs—can do so free from fear of attack.
The amendment would create a specific offence of assaulting a bar or shop worker selling alcohol. This group of workers has a unique set of obligations put on them by the Licensing Act 2003. I and other noble Lords think that they deserve similar protection while they seek to enforce the law on our behalf. My noble friend has taken on board the comments made by Mr Robert Buckland in the other place. As he mentioned, he has just been made the new Solicitor-General in the Government.
I hope that the Minister will not tell the House that we already have adequate protections for these workers anyway. I certainly do not believe that it is the case. They are certainly some of the most vulnerable workers working in the retail and service sector. If he is not prepared to accept the amendment today, I hope he will agree to meet me, my noble friend Lord Foulkes, representatives from USDAW and all the retail organisations which, as my noble friend said, are backing this amendment, and that we can persuade him that workers selling alcohol need this additional protection.
Someone working with the public is especially traumatised by an attack at their place of work. They usually have to go back into that situation, facing a constant stream of strangers, any of whom could become violent. Reports of anxiety and panic attacks on returning to work after an assault, with the constant worry that the next person walking in through the door could be their attacker, are not uncommon.
We are all aware of the trigger that alcohol can be to violent crime. Figures have been produced by the police, the Health and Safety Executive and others that prove that; it is not in dispute. Workers who serve alcohol have to enforce the law, as my noble friend says. They are required to obtain proof of age from the purchaser, to refuse to serve alcohol to someone who is drunk and aggressive and to refuse the proxy sale of alcohol. The staff have no option; they have to enforce the law. These actions are all major triggers for assaults on staff, but if they are not undertaken the staff could be liable for prosecution themselves, resulting in a heavy fine, maybe the loss of their job and possibly the loss of the licence for the business. We should also remember that these people could also be working late at night, possibly on their own, in a corner shop or a petrol station. Some workers are too traumatised to return to the same job and lose their livelihood in addition to the physical effects that they have had to endure. Victims rightly feel that sentencing should reflect those effects on their lives.
The sentencing guidelines for all types of assaults state that that an offence,
“committed against those working in the public sector or providing a service to the public”,
is an aggravating factor that adds to the seriousness of the crime. Creating a specific offence would send a clear message that violence against somebody serving the public is not acceptable. Preliminary evidence from Scotland where a similar measure was introduced for emergency workers shows that that the number of such incidents has declined since the legislation was introduced. That is another reason why we are better together, so that we have the experience of our colleagues in other parts of the United Kingdom.
I want to mention one incident that happened to a team leader at a checkout at a large supermarket in Rochdale. That store had only one security guard. The team leader had to step in and assist whenever the checkout person received abuse or had a problem. In October last year, that team leader went to help when a gang of youths had been refused the sale of alcohol and were racially abusing the security guard. The youths went away, the incident was reported, but when the police arrived they had already left. The next evening another security guard was on duty and he shouted for help as the same gang of youths approached the store. One youth started to spray liquid in the face of the security guard, and the team leader ended up in a scuffle with one of the youths. He woke up in hospital eight days later, having suffered a severe heart attack, probably caused by a heavy kick to his chest. His wife had been told that he was unlikely to make it. He had been kicked in the face and lost some of his teeth and his colleagues who saw the attack had to be counselled for trauma. The attack has devastated his life. His heart has to be constantly monitored and he struggles even to walk to the local shops. He cannot do things that he used to enjoy doing with his family, including playing football with his son. He has not been able to go back to work; the doctor has said that he will be off work for at least 12 more months; his take-home pay used to be £1,300 a month, but he now receives sick pay of just £300 a month. Two males and one female took part in the assault; one youth received a small fine, the woman has not been found, and the other youth has been charged—the case will be heard in the autumn. We should all be concerned that, unless people who assault front-line staff receive adequate sentences, this sort of incident will continue. There was another case of a landlord in Bolton who refused to serve a young man whom he knew to be underage. When he took his dog out for a walk that night, the youth beat him up, kicking his face when he was on the ground and causing extensive cuts and bruising. The police arrested him and the next day he got a caution.
We all owe shop workers, particularly those who serve alcohol and have to enforce the law, proper protection. They do not get it at present and it is time that they did.
The Lord Bishop of Chester
My Lords, I have considerable sympathy for the amendment, although I wonder how it will interact with the remainder of the law on assault if this is criminalised in a specific way. I declare an interest in that I used to be a publican. When I was employed in a university, one of the members of staff had to go down to the magistrates’ court and swear that they were a fit person to keep order. That is the only time when I have been into a court of law in my life, and the magistrates were not quite sure that this young clergyman would be able to do so. My main task was to prevent the students drinking the profits rather than sorting out any brawls.
I would like the Minister to comment on the two examples that we have been given of the use of caution where assault takes place. If a publican’s wife was assaulted and her nose was broken and this simply resulted in a caution, that is widely held to be inadequate as a legal response. I hope that when he comes to reply the Minister will deal with that point, especially if he is not prepared to accept the amendment.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, it has been a short but informative debate, informed by experience from quarters where we do not necessarily expect it to be shown, but none the less welcome for that.
The amendment would make it an offence to assault a person who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way, with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.
The House will of course join me in condemning assaults on anyone who comes into contact with the public as part of their work. No one should be expected to face violence because they are simply doing their job. In particular, it is essential that the criminal justice system deals adequately with violence against people who are engaged in the licensed sale of alcohol—for instance, in pubs, off-licences, supermarkets or corner shops. However, the Government do not at the moment agree that creating a new offence is the right way to combat this unacceptable behaviour. The Government are committed to creating new offences only where it is considered necessary, there are no other reasonable options available, and there is evidence to support the need for a new offence. I will endeavour to explain why we do not believe that is the case in relation to assaults on workers enforcing or complying with the Licensing Act 2003.
There are already a number of offences that criminalise disorderly and violent behaviour, and which apply in cases of violence towards such workers. They cover the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent offences. In every case referred to the Crown Prosecution Service where there is sufficient evidence to justify a prosecution, prosecutors must then go on to consider whether a prosecution is required in the public interest. The section of the Code for Crown Prosecutors giving guidance on the public interest test states:
“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.
If the evidence is there and the code is satisfied, the CPS will prosecute.
Moreover, sentencing guidelines, to which there has been reference, specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that includes those who work in shops and the wider retail business and such people who might well be enforcing or complying with the Licensing Act 2003.
The noble Lord, Lord Foulkes, referred to the observations of my honourable friend Robert Buckland, now the Solicitor-General. It is not normal for a Minister to give advice from the Dispatch Box but the noble Lord, as an experienced parliamentarian, will know that the Solicitor-General and the Attorney-General are in fact the law officers responsible in the case of unduly lenient sentences and can themselves initiate an appeal to the Court of Appeal should sentences be regarded as too long. In fact anyone can refer those sentences for consideration by the law officers, so that is a matter that he may well wish to convey to USDAW if it is not already aware of that.
Currently, the only offences of assault on members of specific groups are the offences of assault on a police constable in the execution of his or her duty and assault on an immigration officer. Creating a new offence of assault on workers selling alcohol would single out this type of assault as the only one meriting a specific offence alongside assaults on these public servants. I do not believe that this can be justified.
Whoever the victim, the degree of seriousness of an assault should depend on the particular facts of the case. Why should it be worse or more traumatic for the victim for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door as a result of an intrusion into the home? Of course, where the evidence indicates a more serious offence than merely common assault, whoever the victim, more serious charges are available to the prosecution, such as assault occasioning actual bodily harm, which carries a maximum penalty on indictment of five years’ imprisonment or an unlimited fine, or both, or grievous bodily harm under the 1861 Act.
There was reference to the position of police officers, who of course occupy a very important role. The offence of an assault on a constable or an immigration officer is a separate matter, although interestingly the proposed “triable either way” offence of assault on a worker selling alcohol would carry a higher sentence in the amendment than the offence of assault on a constable. I think it is fair to say that assault on a constable in the execution of their duty tends to be used for minor offences, whereas if there is a serious assault on a police officer it will be charged under the Offences Against the Person Act.
Noble Lords referred to cases that are not proceeded with, rather surprisingly on the facts of one particular case involving Barry and Teena, as the noble Lord, Lord Foulkes, said. USDAW has highlighted many cases that never reach the courts because the police and prosecution decide not to prosecute. As the Committee will appreciate, the investigation and prosecution of cases is a matter for the police and the Crown Prosecution Service, and regardless of the existence of a particular offence it is ultimately a matter for them whether they decide to investigate and prosecute.
Reference was made to the creation in Scotland of a specific offence of assaulting an emergency worker and it was suggested that this had increased the prosecution rate and resulted in a decrease of such offences. That was raised by the noble Lord, Lord Kennedy. Of course I entirely agree with the comment that we are better together. Be that as it may, what one can say about that, and there has been some research into it, is that it is difficult to draw any conclusions. It may well be that these offences are now being prosecuted under the legislation covering assaulting emergency workers whereas previously they would have been prosecuted under the common law of assault. The figures prior to the creation of the offence in the 2005 Act do not distinguish between those assaults that were committed against emergency workers and assaults against other people. It may be right, but we suggest that we cannot draw anything from that.
While I would be very happy to meet the noble Lords, Lord Foulkes and Lord Kennedy, to discuss matters further, at the moment we are unpersuaded of the need for these further offences despite the variation from the amendment put forward on the Anti-social Behaviour, Crime and Policing Bill. In light of the points that I have endeavoured to draw to the attention of the House, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Foulkes of Cumnock
My Lords, I am grateful to the Minister for replying in his usual courteous and helpful way, which I greatly appreciate and which I know the House generally appreciates. I was encouraged by three things that he said. First, he said that the Government do not agree at the moment, which indicates that they are open to looking at the issue further. Secondly, I liked the suggestion that he made about the Solicitor-General and the Attorney-General being able to appeal if sentences are too lenient. I will certainly draw that to the attention of USDAW and others.
There were other Members who wanted to take part in this debate. The noble and learned Lord, Lord Hope, wanted to be here and apologises for not being able to. He said that he would have raised the question about the experience in Scotland. The noble Baroness, Lady Coussins, and the noble Viscount, Lord Montgomery, also wanted to be here. We had rather a long debate earlier, for which I must say I take some of the blame. Only some—a very small part, in fact, I say to the Whip who was nodding rather too enthusiastically there.
Thirdly, the most helpful suggestion of all those that have been made came from my noble friend Lord Kennedy and was very kindly picked up by the Minister—that he is willing to meet a group, including my noble friend and myself, of USDAW and representatives of the trade to discuss this further. I will pass on that very kind invitation and I am sure that it will be taken up. In the light of all those helpful comments, I beg leave to withdraw the amendment.
Lord Sharkey
“Disregarding certain convictions for buggery etc: making an application on behalf of another person
(1) In section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions), after subsection (1) insert—
“(1A) A person may make an application under subsection (1) on behalf of another person if that other person is deceased.”
(2) In section 93 of that Act (applications to the Secretary of State)—
(a) in subsection (2)(a), at the end insert “or if applying on behalf of a deceased person, the name and dates of birth and death of that person”;(b) in subsection (2)(b), at the end insert “or if applying on behalf of a deceased person, the name and address of that person at the time of the conviction or caution”.”
Lord Sharkey
My Lords, next Wednesday night there will be a late second promenade concert at the Royal Albert Hall. There will be only one work in this prom: “A Man from the Future” by the Pet Shop Boys, who I am sure are familiar to all your Lordships. The piece is based on the life of Alan Turing and is an orchestral biography for electronics, orchestra, choir and narrator.
The piece as it will be performed is different from its final draft, because after the final draft was completed Alan Turing was granted a posthumous royal pardon. This pardon, for homosexual acts that would not now be illegal, left some with mixed feelings. Andrew Hodges, Turing’s biographer, on whose work much of the libretto is based, said about the pardon:
“I don’t think it’s right in principle to make an exception for one person on the grounds of what they did for the State. It should be for everyone who was in that situation”.
Neil Tennant and Chris Lowe—the Pet Shop Boys, as your Lordships will know—will explicitly address this contradiction in the finale of Wednesday’s performance. They say:
“We had to rewrite the ending to point out that the convictions of tens of thousands of other men remain and that hasn’t been discussed”.
They are right to raise this issue. Under the dreadful Labouchère amendment of 1885 and other equally dreadful laws, 75,000 men were convicted of homosexual acts. These laws were eventually repealed in the 1960s.
In 2012 this Government did something to put right this injustice. We passed the Protection of Freedoms Act, which allowed all those convicted under those old statutes to apply to have their convictions disregarded. This would happen if it could be demonstrated that the acts for which they were convicted would not now be illegal. Of the 75,000 men convicted under the now-repealed Acts, 16,000 were still alive and could now apply to have their convictions disregarded. This provides real help and comfort for them, their families, relatives, friends and loved ones, and helps to put right a serious and enduring historical injustice.
However, this still leaves the 59,000 men similarly convicted but now dead. In March 2012 I tried to do something about this. I tried to amend the Protection of Freedoms Act, via the LASPO Bill that was then before us. I wanted to extend the right to have a conviction disregarded to apply to those 59,000 men. I wanted friends, relatives or supporters to be able to apply for a disregard posthumously on their behalf. I said then that I believed that this simple extension was fair and right in principle. I wanted equality of treatment for all those convicted under the cruel Labouchère amendment and other laws, whether alive or dead. I believed then, as I still do, that this would go some way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.
The Government were not persuaded. The Minister said in reply:
“I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large”.—[Official Report, 20/3/12; col. 876.]
This seems to be very mean-spirited and wholly legalistic. It entirely fails to take into account the feelings of friends, relatives and supporters of those convicted but now dead. It fails entirely to acknowledge a moral duty to help put right a serious injustice. It also devalues the disregard for those convicted and still alive. The purpose of the disregard is not just to help with the practical consequences; it is also to publicly acknowledge a very grave injustice.
The last sentence of the Minister’s response seemed to imply a worry about being overwhelmed by applications for a disregard. I thought that very unlikely. Now there is some concrete evidence to show exactly how unlikely it is. The Protection of Freedoms Act was commenced in October 2012. In a Written Answer of last Thursday, my noble friend Lord Taylor of Holbeach gave the latest figures for application for disregard. There are 16,000 men who may apply. Since the Act commenced, in total 147 have applied. Of these, 13 applied in the last three months. This is not an avalanche. The MoJ has confirmed to me that it is not able to put a cost on processing these applications because they have been dealt with within existing resources.
In conversations I had with the Minister and his officials in 2012, the MoJ raised another objection to the idea of a posthumous disregard. It was concerned that many of the posthumous cases might be so old that there would be no safe way of demonstrating that the conviction in question involved consensual and over-age sex. This did not seem to me at the time to be a valid argument and it still does not. The essence of the application process is that the applicant must supply evidence to convince the Secretary of State that the historical offence would not now be an offence at all. That applies to the living. It would also apply to applications on behalf of the dead.
Our amendment simply sets out to give equal treatment to all those gay men convicted under the cruel and homophobic Labouchère amendment and other Acts. It sets out to treat the dead and the living equally. It would bring closure to an extremely unhappy period in our criminal law. It would give comfort to the relatives, friends and supporters of those gay men convicted but now dead. It would help to put right a serious historical injustice.
I hope that this is an uncontroversial measure and that my noble friend will now take a sympathetic view. It would be very good to be able to attend Wednesday’s prom in the knowledge that we had been able to bring a satisfactory end to this long-running injustice.
Lord Lexden (Con)
My Lords, I was very glad indeed to append my name to this important amendment. My noble friend Lord Sharkey has explained its aims and objectives in full and with his customary clarity.
As he made clear, a number of sexual offences have been removed from the statute book in recent years, reflecting in many cases a strong belief that they should never have been crimes in the first place. As my noble friend explained, Parliament has now made it possible for those convicted of such offences who are still alive to apply to have their convictions disregarded. My noble friend’s amendment would enable such applications to be extended so that they could be put forward on behalf of those who are dead.
My noble friend has called for this extension before. Concern has been expressed that it might lead to a flood of applications. That seems extremely unlikely in view of what has happened now that living people have the right to have their convictions disregarded. No large number of applications has been lodged. There is therefore no reason to suppose that the right would be widely invoked by the families and friends of those who had their reputations blackened in their lifetimes but would not have been hauled before the courts at all if lawmakers in the past had not from time to time made unfortunate decisions. Parliament has recognised that that should be put right as regards the living. It should now extend that principle to cover all who suffered grave hardship, as the amendment provides. Justice demands it.
Our country’s lawmakers never blundered more seriously in the sphere of sexual offences than when they passed the Criminal Law Amendment Act 1885. As a historian of the late 19th century and co-author of a book on the very year in question, I never cease to deplore what happened in a thinly attended House of Commons in the small hours of 6 August 1885, with the Summer Recess looming. It was to prove to be a fateful date in the history of English criminal jurisprudence. Suddenly, without warning or anything resembling adequate discussion, homosexual men were made subject for the first time to harsh penalties for purely private sexual activity that was deemed to be grossly indecent.
It is well known that the legislation as introduced into Parliament had nothing whatever to do with homosexuality. Without most people noticing, an amendment was brought forward by a wayward radical Back-Bencher, Henry Labouchère, which made indecencies between adult males, in private as well as in public, a punishable offence. Labouchère proposed a maximum penalty of one year’s imprisonment. To his eternal shame, the incumbent Tory Attorney-General, in accepting the amendment, doubled the penalty to two years, with or without hard labour, at the judge’s discretion. Thus was created the infamous “blackmailer’s charter”, as it was immediately dubbed, and thus was created a road of great suffering and hardship—a road that was, in Oscar Wilde’s famous words,
“long, and red with monstrous martyrdoms”.
It is not least because so many lives of great men such as Alan Turing, and others unremembered for public achievement, were wrecked as a result of that legislation that we should consider this amendment with favour. It would register and symbolise Parliament’s recognition that a grave mistake was made on 6 August 1885, when a malign change was hurriedly agreed and then passed into law without further consideration in either House of Parliament on 1 January 1886.
There are, of course, other reasons why the amendment should command support, but Parliament’s black day in August 1885 is for me one of the most compelling. I hope that the Government will accept the amendment.
Lord Faulkner of Worcester (Lab)
My Lords, I, too, have added my name to the amendment of the noble Lord, Lord Sharkey, because I am very happy to be a co-sponsor of his Private Member’s Bill to secure the pardon for Alan Turing, which fortunately needed to make no further progress in Parliament because the Government granted that pardon. I do not want to say any more, other than that I agreed with every word that the noble Lord, Lord Sharkey, and, indeed, Lord Lexden, said. This is a case that deserves widespread support. I hope that colleagues on my own Front Bench will support it and that the Government will respond.
Lord Black of Brentwood (Con)
My Lords, I am pleased to support my noble friend Lord Sharkey’s amendment. He has done all those who are committed to real equality for gay men and women, living and dead, a great service. I hope he has also ensured that Wednesday’s prom will be a sell-out, as indeed it should be.
I make three points in favour of what seems to be a sensible, proportionate and long overdue measure. First is the straightforward question of logic. If it is right that those who are alive can have quashed, under the Protection of Freedoms Act, convictions for a range of what were once sexual offences between consenting adults of the same sex, why cannot those who died before the law caught up with changes in society? To make a distinction between the living and the dead in this way seems to me to be wholly irrational.
Second is the question of equity and fairness. It is absolutely right that a pardon was granted to Alan Turing, whose tragic case served to highlight the plight of those who had criminal records for acts that should never have been crimes. However, what of the families and decedents of ordinary people? As the noble Lord said, there were up to 60,000 of them over the many generations when a sexual act between men was an offence. Benjamin Cohen, the campaigning publisher of PinkNews, which does so much to stand up for the rights of the gay community, made the point well in a letter to me:
“Almost as soon as the Protection of Freedoms Bill was passed, PinkNews readers questioned why those who had passed away could never have their name cleared, and the royal pardon granted to Alan Turing also posed many questions. Why him and not others, and not just famous people like Oscar Wilde?”.
That question needs to be answered. The noble Lord’s amendment does just that.
Finally, there is one other important point. The amendment sends a signal to the wider international community. My noble friend Lord Lexden and I, along with others across the House, have on many occasions raised the shameful treatment of homosexual men and women in the Commonwealth, where our poisonous imperial legacy still means that people of the same sex who love each other face prison and, in some cases, the death penalty when they display that love. We have done much in recent years to show those countries that we are absolutely setting our own house in order. The Protection of Freedoms Act and the equal marriage Act were hugely important parts of that process. Now it seems to me we have another opportunity to show the states that maintain repressive regimes how we have disowned the barbaric part of our past, ensuring that those who suffered as a result of that path and their families will benefit from the equality that now exists, even in death. We can then urge that those states too should begin what will be a long and slow process of decriminalisation. The amendment, which I hope the Minister will support, would be a potent symbolic act in that quest.
I was recently rereading EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the amendment. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those who were sentenced to imprisonment with hard labour around the time that novel was written would now be dead, taking their shame, guilt and, in so many cases, criminal record with them to the grave. Forster said on the front page of his masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, happier times never arrived. However, they are here now and the amendment is our opportunity to do right by those who were not as lucky as us.
Lord Beecham (Lab)
My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.
Lord Faulks
My Lords, this has been a short, very well informed and powerful debate. I pay tribute to my noble friend Lord Sharkey and others for all they have done relating to Alan Turing and to the amendment to the Protection of Freedoms Act. That Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people aged over 16. The House is grateful too to my noble friend Lord Lexden for his usual accurate and illuminating historical analysis of the origins of this sad state of affairs, which gave rise to so many convictions and caused so much unhappiness.
A disregard results in a person’s relevant convictions being removed from the records held by the police and the courts. Those convictions will therefore no longer appear on a criminal records check and the individual never has to declare them, in any circumstances. However—this is where the amendment is concerned—where someone has died, the intended effect of these provisions would apply. The provisions in the Protection of Freedoms Act are designed to help living individuals get on with their lives free of the stigma of the disregarded offence. I fully appreciate and sympathise with the intention behind the amendment, but the Government are concerned that there would not be a practical benefit to the change. A disregard would not allow the applicant, on behalf of a deceased person, to say that the deceased person was incorrectly convicted, nor that he or she has received a pardon. It is important to remember the rationale that lies behind this. The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.
The Government are still concerned that such an amendment would introduce a disproportionate burden on public resources; reference was made to a similar answer given from the Dispatch Box, not by me but by another Minister. For living people, the Protection of Freedoms Act will amend the data used for criminal records checks for living people. When someone is deceased, the offence is more likely to have taken place prior to the establishment of the National Policing Improvement Agency’s names database. Identifying appropriate records would be a lengthy, expensive and uncertain task. There is less certainty that any records can be identified, and those that are found may be insufficient to be sure that offences were consensual and with a person aged over 16.
The Government are concerned this would place a disproportionate burden on existing resources at the Home Office and on the police service. My noble friend Lord Sharkey referred to the answer he was given by a Home Office Minister to a question about the number of people who had made applications, following the estimate of 16,000. I am told that it is true it has now risen to 192 from 185. However, noble Lords will appreciate that departments are operating under severe financial restrictions. While we believe that the cost of dealing with applications from those whose lives continue to be affected is justified in the current climate, we cannot agree that costs, which we believe will be significantly higher for each application, could be justified in trying to deal with the records of those who have died. In our view, the limited resources should be directed at those who continue to have difficulties as a result of their conviction or caution for these offences. I need hardly stress that there is a difference between a pardon and a disregard.
The noble Lord, Lord Beecham, made an interesting, bold suggestion. He rightly predicted that I was unlikely to swallow the suggestion from the Dispatch Box, sincerely though it was made. My initial reaction is that, if there were to be a blanket amnesty, as I think he was proposing, we would need to go through this case by case to establish whether this act was consensual and therefore within the scope of the Act.
Therefore, while having considerable sympathy with all that lies behind the amendment, the Government are still not in a position to accept it as tabled by my noble friend Lord Sharkey. However, I appreciate that there is a feeling that something ought to be done to right a historic injustice. I can certainly—without, I hope, raising any expectations—at least agree to facilitate a meeting with the Minister to discuss this matter further. However, I emphasise that I cannot raise expectations and the position at the moment is precisely as I have outlined it. In those circumstances, notwithstanding the arguments that have been put forward, I hope that my noble friend will be prepared to withdraw his amendment.
Lord Sharkey
My Lords, I am very grateful to all those who have spoken in favour of the amendment. They have, in my view, spoken persuasively and eloquently. I cannot help feeling that in many ways the Minister is simply missing the point. He talks in terms of practicality and cost; that is essentially the argument that he is putting forward. As I pointed out a few moments ago, there are elements to this other than practicality and cost. There is the notion of moral duty; there is the notion of taking into account the feelings of the friends and relatives of those convicted but now dead; and there is the notion of the devaluation of the disregard for those convicted but still alive if the purpose of this is purely practical and contains no element of public recognition for the wrongs done to these people.
I am sorry that the Minister and the ministry have chosen to take this path. It seems to be legalistic, mean-spirited and ungenerous. I am sufficiently encouraged by the words that I have heard around the Chamber this evening to say to the Minister that, although I will now withdraw the amendment, I will return to it on Report and perhaps use the opportunity to test the opinion of the House at that point.
I finish by saying that of course I would welcome a meeting with the Minister. In fact, I wrote to the ministry on 3 July proposing that. I got a letter back last Thursday saying, “We have passed your letter on to the Home Office because of course the Protection of Freedoms Act belongs to the Home Office”. There was no mention of a meeting or any kind of consequent follow-up; it was just a case of “It’s not our business”. I knew that the Protection of Freedoms Act belonged to the Home Office but I also knew that the Minister was going to be answering this debate, which is why I wrote to him. I expected him, or his department, to answer on behalf of the Government and not simply to say, “Well, over to them and let’s not talk about a meeting”. I am now very glad to hear that he is talking about a meeting. Having said that, I beg leave to withdraw the amendment.
Baroness Thornton
“Parliamentary procedure for designation
(1) Where the Secretary of State proposes to make a designation under section (Licensing of foreign pornographic services)(11), he shall lay particulars of his proposal before both Houses of Parliament and shall not make the proposed designation until after the end of the period of 40 days beginning with the day on which the particulars of his proposal were so laid.
(2) If, within the period mentioned in subsection (1), either House resolves that the Secretary of State should not make the proposed designation, the Secretary of State shall not do so, but without prejudice to his power to lay before Parliament particulars of further proposals in accordance with that subsection.
(3) For the purposes of subsection (1)—
(a) where particulars of a proposal are laid before each House of Parliament on different days, the later day shall be taken to be the day on which the particulars were laid before both Houses; and(b) in reckoning any period of 40 days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
Baroness Thornton (Lab)
My Lords, this group of amendments deals with the licensing of foreign pornographic services. As noble Lords can see, I am getting all the fun issues today. I will take noble Lords briefly through what each of the amendments seeks to do and will then talk a little about the background that led us to table them.
Amendment 42A would outline the parliamentary procedure by which the Secretary of State designates which body may be a licensing authority for foreign pornographic services for the purposes of Amendment 42B. Amendment 42B would require providers of foreign pornographic services to be licensed, a licence being granted only to providers with effective age verification mechanisms. Amendment 42C would define a foreign pornographic service for licensing purposes, and Amendment 42D would introduce a maximum sentence of six months’ imprisonment or a fine not exceeding £5,000 for a provider of foreign pornographic services which is convicted of failing to secure a licence. These amendments were tabled, but not chosen for discussion in the Commons, by my honourable friends Dan Jarvis, Andy Slaughter, Diana Johnson and Helen Goodman.
The background to the amendments is that in July 2013 the Prime Minister, David Cameron, asked internet service providers to offer family-friendly filters to all customers, ensuring that they had effectively to choose to turn the filters off. The four major ISPs rolled out these filters to new customers at the beginning of 2014 and will have offered the choice to install filters to all existing customers by the end of 2014. However, Ofcom has found that more than half of parents do not use the parental controls, nor are the controls a complete solution in themselves. Recent research by on demand regulator ATVOD shows that shocking numbers of those aged under 18 are still accessing adult material online, and I shall come back to that in a moment.
Baroness Howe of Idlicote (CB)
My Lords, I was pleased to add my name to Amendments 42A to 42D tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Beecham. I am grateful to the noble Baroness for her comments earlier. As noble Lords will know, I have been concerned about content on the internet for some time and have tabled amendments to previous Bills on age verification for certain websites. I also have the Online Safety Bill which is currently before your Lordships’ House. I extended my Bill in this Session specifically to deal with some of the concerns which have been raised by the noble Baroness, Lady Thornton, so I am grateful to be able to discuss these important issues today.
As a result of the Audiovisual Media Services Directive 2009, the Authority for Television on Demand has regulatory powers over “TV-like” on-demand programmes that include those which provide explicit pornographic content. ATVOD is already taking welcome action to address services that are based within the EU and has set out in its annual report, which was published last week, how in the year to 31 March 2014 it took action against 16 services operating across 20 websites because these services featured hardcore pornography that could be accessed by under 18 year-olds.
However, there are two current concerns. ATVOD already assumes that these regulations apply to R18 video works—that is, hardcore pornography that can be legally supplied only by a licensed sex shop in offline form—but has argued that it is not clear and that it could be subject to legal challenge. In 2013, the Government said that they would legislate to ensure that material that would be rated R18 by the BBFC is “put behind access controls” and would,
“ban outright content on regulated services that is illegal even in licensed sex shops”.
I understand that in April the Government announced that they would implement this policy before the end of the year. This is welcome news in relation to EU services, and I would be grateful if the Minister could give us an update on progress on implementing this commitment.
The second issue, which is the one that these amendments aim to address, is that ATVOD is concerned that young people are accessing hardcore pornography rated R18 and stronger through tube sites that tend to operate outside the EU and which will not be affected by the change I have outlined above as they fall outside ATVOD’s jurisdiction. As noble Lords have heard, in March 2014, ATVOD issued a report entitled For Adults Only? Underage access to online porn. The report contains shocking statistics on access to pornographic websites that are outside its control because they are based overseas.
Noble Lords have been given quite a few of the relevant statistics by the noble Baroness, Lady Thornton, that I was going to read out, such as the fact that one in 20 UK visitors to an adult website during a period of one month, December 2013, were under age, and that 23 of the top 25 adult websites visited by UK internet users provide instant, free and unrestricted access to hardcore pornographic videos and still images. Moreover, none of the eight most visited adult sites has in place a robust mechanism to prevent underage access and all offer on the home page free access to hardcore porn videos which are equivalent to those passed as R18 by the BBFC, or indeed are even stronger. I must repeat one statistic because it really is so horrendous. Only one of the 1,266 adult websites identified in the ATVOD research as having been visited from the UK in December 2013 was a service that is regulated in this country.
I am sure that noble Lords will agree with me and with the noble Baroness, Lady Thornton, who has put the case so clearly and splendidly, that this is really unacceptable and that the time has come to address these issues. As a result of its research, ATVOD has made a series of recommendations, one of which is to establish a licensing scheme for foreign pornography websites based outside the EU which are being accessed in the UK. A condition of the licence should be that hardcore pornography can be provided only,
“in a manner which secured that under 18s could not normally access the material”.
Amendments 42A to 42D would set up such a licensing system. I hope that the Committee will support these amendments and that the Minister will confirm that that will be the case. I should also like to hear his views on ATVOD’s proposal that the blocking of payments to services could be implemented if a service is unlicensed or a licensed service breaches the licence conditions.
Lord Faulks
My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.
The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.
The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.
With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.
Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.
The difficulty with this amendment is that it would effectively be unworkable because it creates a two-tier system whereby non-EU providers of pornographic content would be subject to stricter regulation than UK and EU providers. It creates a different definition of pornographic material to be regulated and will therefore create uncertainty, inconsistency and lack of clarity rather than more security. Secondly, extending the scope of the type of content from TV-like content to include film clips and static images that originate from outside the EU would create further uncertainty and inconsistency across the full scope of the content in question.
The noble Baroness, Lady Howe, asked about the R18 legislation. I understand that the legislation has been drafted and is currently at the notification stage in Brussels. We hope to implement it in the autumn.
We of course share the concern that has been expressed all around the House about access to pornographic material, particularly by children, and are concerned to do all that we reasonably can. However, we are not convinced that these amendments are the answer and respectfully ask the noble Baroness not to press them.
Baroness Thornton
I thank the Minister for that answer and the noble Baroness, Lady Howe, for her support on this. That is disappointing. The Government are complacent about this issue and are depending too much on filters and on parental controls. We know that it is not working and that too many of our children are accessing hardcore porn too easily. The Minister needs to acknowledge that. The evidence is absolutely clear: the damage is already being done to our children and the Government are not doing enough to stop it. I fear that we will return to this subject at a later stage of the Bill. I beg leave to withdraw the amendment.
Lord Beecham
“(d) secure children’s homes.”
Lord Beecham
My Lords, at Second Reading, the Minister referred to a “network” of secure colleges, of which the planned facility at Glen Parva in Leicestershire is to be the first. This so-called network would consist of precisely three establishments, each housing around 320 young offenders, very many of whom will of necessity be a long way from home and family. That is not a network as most people would understand the term.
Some of us were recently treated to an exposition of the plans for the college, kindly organised by the Minister, where we heard from the developers, Wates. The technology was attractive and smart, which is more than can be said for what passes for the thinking behind the concept. It became apparent from the answers to questions from the noble Lord, Lord Carlile, who is not now in his place, that not only did the site have severe limitations in terms of the facilities, particularly outdoor and recreational facilities, but that instead of the intended function of the site dictating its location and size, the site, which was already owned by the department, dictated the nature of the development. Its limitations in terms of size and location were simply never addressed.
The Government are pressing ahead with a scheme—to the extent of going out to tender—which is property-based rather than service-based. Given the paucity of evidence of support for the project during the consultation exercise, with the Children’s Commissioner, the Chief Inspector of Prisons and a host of organisations expressing serious concerns and objections, this is completely unacceptable. I have today received the reply to a Written Question about this process, which makes interesting reading. It refers to the Government’s invitation to,
“interested parties to develop propositions of their vision for implementing Secure Colleges”.—[Official Report, 16/7/14; col. WA 130.]
It goes on to say that a competition was launched in January, for which all of four bidders submitted tenders. The contract has now been let, all before Parliament has debated—never mind passed—the legislation. A separate competition to appoint an operator will take place, with a view to that taking effect next year.
As the series of amendments we are debating demonstrates, there is virtually no detail about cost or how the college is to be run. On the contrary, the Government make a virtue of saying that they have invited the potential contractors to say what they propose to do. The impact assessment—unusually flimsy even by the MoJ’s standards—says:
“There is … some uncertainty over the level of operating costs we would expect to achieve through a competition”—
a masterly understatement. The same applies to the estimated capital costs of £85 million. When my honourable friend Dan Jarvis MP tabled a Parliamentary Question about the latter, he was told:
“To avoid prejudicing the effectiveness of the design and build competition … the Ministry of Justice will not be able to publish a breakdown of the budget until the competition has been completed”.—[Official Report, Commons, 17/3/14; col. 438W.]
It irresistibly brings to mind the words “buying”, “pig” and “poke”. Let us be clear: the objective of providing better education for these youngsters is wholly admirable—not least in literacy and numeracy skills—and will command universal support, but there is absolutely no detail on how this is to be achieved. The Government seem to imagine the college as a kind of Eton for delinquents where inmate students will start their course in, say, the autumn term and progress through until they have completed however many terms they remain there. The reality, of course, will be different.
The average stay in youth custody is all of 79 days, as the Justice Committee observed. The youngsters, therefore, will come and go at different times and for different lengths of time. Robert Buckland MP, now promoted to Solicitor-General—an appointment well received across the political spectrum—asked a series of questions in the Public Bill Committee about the actual working of the college, the level of provision and the types of staff to be employed and their training. He pointed out that the only staff specifically mentioned are custody officers, whose duties are not defined and, strikingly:
“The words teacher, psychiatrist, social worker, and counsellor do not appear in the schedule”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 280.]
He asked about the child to adult ratio and to these questions, posed again in the amendments we are discussing, answer came there none.
Jeremy Wright MP—whose elevation to the position of Attorney-General in place of Dominic Grieve was greeted with rather less acclaim than that of the new Solicitor-General in the light of his aversion to the Human Rights Act and the European Convention on Human Rights—could say about teachers only that,
“it is likely that an operator of a secure college will recruit a number of qualified teachers”.
He also said that,
“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; cols. 291-92.]
No indication was given about health issues, including how mental health is to be treated. Of course NHS England would have the responsibility, but how will this be exercised, especially with short-stay inmates? What contractual conditions on these matters do the Government have in mind—if any? Will these two simply be left to the education providers to determine? I recall the lines from TS Eliot’s “The Love Song of J Alfred Prufrock”:
“And time yet for a hundred indecisions,
And for a hundred visions and revisions”.
To venture another quotation, there is a line from “Richard III” in his speech to the troops before the Battle of Bosworth:
“Remember whom you are to cope withal”.
That is something the Government seem conspicuously to have failed to remember. The colleges will deal with damaged, vulnerable youngsters. A survey last year found that 65% of girls and 37% of boys in custody were last at school aged 14 or under, 86% had been excluded, 60% had communication difficulties, 75% had literacy difficulties and 25% had learning difficulties—a matter which the noble Lord, Lord Ramsbotham, has raised repeatedly. All this means that they require strong educational support. More than 30% of boys and 60% of girls had been in care, 41% had a drugs problem and 19% of boys had emotional or mental health problems.
The Government’s proposal is to warehouse the whole age range—both sexes—in the juvenile equivalent of a Titan prison. How can it be right to place a small number of girls in an institution which, given their numbers, will be even more likely to be remote from their homes? How can it be right to place 12 to 15 year-olds alongside older adolescents? It cannot be intended that they would attend the same lessons, take part in the same recreational activities and receive the same psychological and medical support.
The Joint Committee on Human Rights points out that the plans do not accord with international standards governing the administration of juvenile justice which, for example, should include,
“small open facilities where children can be tended to on an individual basis and so avoid the additional negative effects of deprivation of liberty; and that institutions should be decentralised to allow for children to continue having access to their families and their communities”.
The Joint Committee went on to note that there was no equality impact assessment. What response does the Minister make to the recommendation that these should be made and provided as soon as possible, especially in relation to the impact on girls and younger children? What of the call for more information about special educational needs provision in the colleges?
The amendments in my name and that of the noble Lord, Lord Ramsbotham, are designed to address these issues and ensure that if the policy goes forward—to which issue I will return later—there will at least be an obligation on the Government to explain not merely what they seek to achieve but precisely what will be achieved, and with what safeguards, on the issues that I and others identify in these debates. Amendment 42E would add secure children’s homes to the list of places the Secretary of State may provide for youngsters sentenced to detention. Such homes are currently provided by local authorities. It would be necessary to develop a joint approach in this context. Amendment 42K would require the Secretary of State to ensure that sufficient secure home places were available. Amendments 42F and 42G would exclude girls and children under 15 from secure colleges. Amendment 42J would require adequate specialist provision to cater for the often complex health and well-being needs of offenders in secure colleges.
Lord Ramsbotham (CB)
I shall speak to Amendments 43, 44B, 45, 47 and 48 in my name and support without further comment Amendments 42F, 42G, 42J, 42K, 43, 43A, 44A and 45A, to which I have added my name, and about which the noble Lord, Lord Beecham, has spoken so eloquently. Later in the proceedings I shall speak on clause stand part, putting forward alternative proposals to those about which so many object so strongly—witness the complex Lib Dem Amendment 43C.
At Third Reading of the Bill in the other place, the Secretary of State said of the Government that they were not a Government who,
“legislated without taking into account the views of Parliament”. —[Official Report, Commons, 17/6/14; col. 1070.]
Those of us who observed the deliberate way in which Parliament was denied the opportunity to discuss changes to the way probation is delivered have reason to question this. There has already been discussion about secure college rules at Second Reading, when the Minister told the House that some, but not all, were to be subjected to the consultation process, which would be launched before Report. He assured us that this included those related to the use of reasonable force in the interests of good order and discipline, which subject is to be discussed in the next group. However, in addition to its incomplete nature I am concerned that the consultation process will not be completed before the Bill has completed its passage through both Houses, thus reducing parliamentary involvement in the consultation to something of a farce. The Minister will remember that I asked him, when he addressed a Cross-Bench meeting, whether or not these rules had been published. The head of the Bill team said that they had not, in contradiction to the Secretary of State, who told the other place at Third Reading that they had; that appears in col. 1071 of Hansard on 17 June.
As the noble Lord, Lord Beecham, has pointed out, instead of laying down what regime potential contractors are to provide in secure colleges, the Government appear to be inviting them to say what they propose to do, the best alleged value for money then presumably being adopted as government policy. But by no stretch of the imagination should any country that claims to be civilised do the same as far as rules governing the good order and discipline of children are concerned. Therefore Amendment 43 is designed to ensure that Parliament is given an opportunity to scrutinise and approve whatever the Government lay down in this regard.
I have a further plea for the Minister regarding the consultation on the rules. I hope that this time it will be a proper consultation and not yet another Ministry of Justice travesty which consists of calling for consultations and then publishing a pre-determined plan regardless.
Amendment 44B relates to changes made during the passage of the Children and Families Bill regarding children with special educational and speech, language and communication needs. Originally, children in detention were excluded from any provision, including education, health and care plans that home local authorities were required to make for any child with such needs. However, that has changed, and not only are places of detention now required to provide resources to enable an EHC plan to be continued while in custody, but that place is responsible for informing the local authority if the child is moved. Furthermore, a child can be assessed while in custody and an EHC plan made which is then binding on the home local authority on his or her release.
My amendment is designed to place a duty on the principal of a secure college, to use their best endeavours to ensure not only bthat the needs of those children arriving with the existing EHC plans are met but that staff are trained to identify those with problems so that they can then be assessed for such plans. This is not a new subject, because on Report in the other place, the Minister agreed that,
“a great deal of further thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]
What action has been taken in this regard?
Amendment 45 relates to the vexed issue of staffing. As the Minister knows, the principal reason for the relatively high cost of secure children’s homes is the high staff-child ratio, which reflects the numbers of specialists whom this age group needs. As I found when inspecting private sector prisons, companies were tempted to take risks with staffing to preserve their profit margins, which led to problems over safety. Furthermore, because of the wages that such companies pay to unskilled employees there is a very high turnover of junior staff, which is the very antithesis of a key point in successful working with the kind of children we are talking about, namely enabling long-term contact with responsible adults. Can the Minister say whether minimum staff-children ratios have been laid down, so that secure college contractors cannot take short cuts with children’s safety?
Amendment 47 seeks to ensure that the Secretary of State specifies the content of the educational programme that the Government have said they will provide in order to double current provision. So far, we have no details of whether this refers to academic-only content—related to the current 12 hours a week provided in YOIs, 25 hours in secure training centres or 30 hours in secure children’s homes—or what proportion will be vocational, physical, social or whatever. Without any baseline, how can the Government possibly judge the efficacy of any competitive bid? To be quite honest, it seems that the Government simply have not a clue about what is needed to satisfy their specious claim and that, under the smokescreen of phoney commercial in-confidence claims, they are hoping that potential providers will come up with some answers that they can then pretend are their programme. I challenge the Minister to prove that I am wrong by producing evidence of the details of the programme that has been put out to tender, and details of who evaluated its ability to meet the need.
Finally, Amendment 48 refers to the statutory training of secure college custody officers. To be utterly frank, the twin issues of quality and qualifications of staff trouble me greatly because of the damage that unsuitable or ill trained people can do to already damaged children. I remember meeting an old Army colleague—a member of my personal protection team when I was commanding my regiment in Belfast—after a gap of 20 years, when he was the senior officer responsible for the reception of children at HM YOI Onley, which was first the YOI that I inspected. I had added a social services inspector to my team because at that time we had no children’s custody expert. After two days, she told me that if Onley were a secure children’s home, she would have recommended the immediate closure of its children’s part because of the paucity of its regime and the lack of qualified staff.
I then met Corporal Gibbons and asked what I could give him if I had a magic wand. I shall never forget his answer: “Time—20 minutes trying to convince these young people that, for the first time in their lives, a responsible adult is taking an interest in them is worth all the hours of programmes, or whatever they call them”. The lesson still applies today and woe betide anyone who forgets it. The purpose of this amendment is to enable Parliament to ensure that all secure college staff are qualified to make the best use of the time available to them, which will enable them to make the vital breakthrough in changing troubled young lives.
Lord Hodgson of Astley Abbotts (Con)
My Lords, my Amendment 42H is in this group, which I tabled in a rather more inquiring—and perhaps a rather less decided—frame of mind than the noble Lords, Lord Beecham and Lord Ramsbotham. I am not yet certain that there is not a role for new thinking on some commercial operations in these new institutions. I begin by apologising to the House for not having participated in proceedings on this Bill so far.
Amendment 42H is concerned with ensuring a high-quality educational experience for young people in these new institutions. As we have heard, this links into Amendments 44A, 44B and, to a lesser extent, Amendments 47 and 48. My interest in this topic comes from my involvement with the all-party parliamentary group on prisons, of which the noble Lord, Lord Ramsbotham, is the chairman. From time to time, the group hears presentations which are exceptionally powerful and persuasive. The presentation of relevance to my being here tonight was given by the Prisoners’ Education Trust, with whose help I have tabled this probing amendment.
It is, I think, generally accepted that having somewhere to live and a job to go to are the most significant factors in reducing reoffending. As a subset of this, research shows that the higher the level of educational achievement, the higher the likelihood of finding employment. Therefore, I entirely endorse, and very much welcome, the Government’s commitment to improve the educational journey for young offenders. This probing amendment is designed to discover how things will work at a practical level in the context of the secure colleges that are proposed to be established under Clause 29.
It seems to me the first set of challenges revolves around location. Noble Lords have pointed out that young offenders in larger secure colleges may well be at some distance from the homes to which they will return at the end of their sentence. How will the continued education of those young people be linked into their local authority and/or other community support programmes? In addition, given the recognition of the useful role that release on temporary licence plays in rehabilitation, which seems to me entirely sensible, how will that fit in with a continued and progressive educational experience?
Secondly, within the institutions themselves, there seems to be a number of challenges to providing this worthwhile educational experience. As the noble Lord, Lord Beecham, said, there is the shifting nature of the population, with young offenders arriving and departing in a way that may be educationally disruptive and not at all helpful to a scholastic timetable. As the number of young people in custody decreases, there is also the likelihood that the residual number may be particularly disturbed and troubled, and therefore the emergence of gang culture may well become prevalent. It would be helpful if the Minister could give us his thoughts on how that could be tackled, and whether there are sufficient resources so to do.
Of course, one way to address these various challenges would be to increase the use of IT-based distance learning. It is a field which continues to develop very quickly. New IT approaches can capture the imagination of young people in a way that the more conventional pedagogic approach does not, and can therefore play a valuable role in supplementing the latter, more formal approach. Further, an online tutor could also help overcome the problems of transitioning to the community from the secure college. However, I am given to understand—the Prisoners’ Education Trust is concerned about this—that the Government have reservations about increasing these young people’s exposure to distance learning. Will my noble friend tell the House whether this revolves around the cost of the system, the availability of suitably trained personnel or, perhaps more prosaically, issues of IT security?
As I said at the outset, I am convinced that improving educational performance provides a significant chance of reducing reoffending among young people. Therefore, I welcome the Government’s commitment to it. It will require some fresh organisational thinking, which is why I think commercial activities might be helpful—especially, as we have heard already, in the context of these larger secure colleges.
To address this, my amendment proposes a requirement to establish an individual learning plan. In turn, the construction of the ILP will have to involve all relevant bodies, statutory and non-statutory. It will require the assessing of the individual’s prior educational achievement and, finally, a path for that individual’s future demands. In the amendment I argue that this customised approach is likely to provide the most efficient and cost-effective way forward.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I speak principally to Amendment 43C in my name, and in the names of my noble friends Lady Linklater, Lord Carlile and Lord Dholakia.
In spite of the comment of the noble Lord, Lord Ramsbotham, to the effect that our amendment was unduly complex—
Lord Marks of Henley-on-Thames
I am very grateful: I certainly heard “complex” and was slightly surprised, because I have support from the Back Benches. I thought that we were rather saying the same things. A feature of this debate is that all the amendments in this group, including that of the noble Lord, Lord Hodgson of Astley Abbotts, have been directed really towards the same concerns and issues.
Since the proposal for secure colleges was published as part of the Bill it has provoked a great deal of public and well informed criticism. For my part, I am indebted to the Children’s Rights Alliance for England, the Howard League for Penal Reform, the Standing Committee for Youth Justice and others for their advice, for full and well informed briefings, and for meeting me.
We have sought in our amendment to set out two mandatory principles, the need for which we now consider is firmly established, and a number of aims that we believe the Secretary of State must strive to meet if the proposal for secure colleges is to be implemented. We completely agree with the aim of the Secretary of State to ensure that young people in custody enjoy full educational opportunities. He is right to start from the position that the involvement in education of many of our young people in custody has in the past been minimal and their educational attainment virtually negligible. If we are to address their criminality, a good starting point is to try to give them some genuine education from which they may benefit in their future lives. The question is how we achieve that effectively.
We are concerned that the idea that we could somehow create on a residential basis in the prison estate large but secure colleges with some resemblance to schools may be misguided and unrealistic. As I mentioned earlier today, the number of young people now in custody is below 1,100. On all the best evidence it is simply inappropriate to attempt to contain large numbers of those young people together, regardless of gender and age. As has been repeatedly emphasised in this debate and at Second Reading, young offenders in detention represent a group of young people with a mixture of diverse and serious problems.
The first subsection of our proposed new clause would therefore provide the two mandatory points mentioned: that secure colleges may not be used for the detention of girls or persons under the age of 15. The evidence has satisfied us that it is simply unsafe to mix boys of all ages from under 15 to 18 together with girls in custody in one institution. Given all the evidence, we cannot believe now that the Government would wish to proceed on any other basis. I invite the Minister to confirm as soon as he can that that is the position.
Our second subsection is designed to ensure that the welfare of persons detained in any secure college has to be the primary consideration that the Secretary of State will have in mind in making any decisions that affect the lives of those in custody. In one sense, that may be obvious, but we feel it should be clearly stated in the Bill.
Our third subsection, comprehensive or complex as it may be, sets out a number of aims that the Secretary of State should be required to keep at the forefront of his mind when setting up and providing any secure college. I do not shirk from saying that I fear that many of these aims are incompatible with what we understand to be the Government’s present intention to establish a large, secure college in the Midlands housing nearly one-third of all young offenders currently in detention.
The first consideration must be the provision of a safe and secure environment for all those detained in secure colleges. The next aim must be that any secure college is of an appropriate size. Having considered the question of size, I now have no doubt that what we mean by “appropriate” is “small”. All the evidence we have considered suggests that a small institution capable of giving young offenders individual attention is essential to rehabilitation and educational attainment.
We also believe that it is very important that young offenders are detained close to home. Their families should be able to visit them and stay overnight if necessary. We have stressed throughout this Parliament the importance of rehabilitating young offenders within their communities specifically so that upon release they may come out and rejoin their families, friends and communities with some hope of local employment to come. Education in custody should be directed to that end.
One aspect of the current proposal for secure colleges that causes us concern is the idea that young offenders may be moved miles from their families, which could prove profoundly damaging. An associated concern that follows from that is that supervision before and after release, which we have made a priority, will lack the continuity that we have promised. If an offender is in custody, as is proposed, in an institution near Leicester and is to be released to Cornwall, it is unlikely that there can be any meaningful continuity of supervision.
Furthermore, we believe that if secure colleges are to achieve what they set out to achieve, real thought needs to be given to the type of educational opportunities that can realistically be offered. It is bound to be very difficult to provide suitable courses for young offenders who are sentenced at different times, due to be released at different times and sentenced for different periods. The noble Lord, Lord Beecham, mentioned that 79 days is the average period in custody. We cannot imagine that courses can be arranged that will meet the needs of more than a very few offenders at a time. Given what noble Lords have said, I ask my noble friend to elucidate what the Secretary of State has in mind. The question of distance or online learning raised by my noble friend Lord Hodgson of Astley Abbotts may well merit further consideration.
There is also the question of outdoor and sporting facilities and facilities for indoor recreation. It is crucial that the recreational needs of these young people be catered for. In the proposed very large pathfinder secure college, we are concerned that these facilities may be, if not entirely, at least very largely, lacking.
There is considerable concern, which has been mentioned by other noble Lords, about staffing and the need for staff with specialist training across a range of skills: not just teachers but counsellors, medics and others. My noble friend needs no reminding that many of the young offenders detained in these colleges will have special educational needs. Many of them will also have particular problems relating to their physical and particularly mental health. A number of young offenders have problems arising from drug or alcohol abuse; many come from profoundly dysfunctional backgrounds, many from criminal families. These issues need careful and focused personal attention. Will a secure college environment, as is proposed, be able to meet these needs?
Our final proposed new subsection would require the Secretary of State to consult the Youth Justice Board as to how the aims that we have set out might be achieved. I fear that there is a great deal of work to be done. We doubt that the present proposal can in its present state properly proceed, and we urge the Secretary of State to ensure that all decisions in this area are firmly based on sound evidence and good advice. The rehabilitation of young offenders is too important to be the subject of a gamble on a less than fully developed idea.
In summary, we fully support the Government’s aim to provide more and better education in custody, but we doubt that the present proposals for secure colleges have any realistic prospect of achieving it.
Lord Carlile of Berriew (LD)
My Lords, I want to speak in favour of all the amendments that have been spoken to and have my name on them—the amendment proposed by my noble friend Lord Marks and the noble Lord, Lord Beecham, from the Labour Front Bench, as well as the noble Lord, Lord Ramsbotham, who has remarkable experience of these matters. I shall not repeat everything that has been said; I want to focus on only one aspect, which was mentioned briefly by my noble friend Lord Marks—the provision of outdoor and sporting facilities for the children in this proposed Titan institution.
I have a feeling in the back of my mind that there is a Minister somewhere who has a whimsical memory of the public school that he attended and how possibly one might be able to recover these young men by putting them in the equivalent of Wellington College, which I know that the Minister attended, or Epsom College, which I attended. The difference is that at Wellington College or Epsom College the beautiful estates of those schools were created in a way that enabled every single boy to take part in sport at the same time every day. For example, in my school, more than 500 boys in those days—now 700 boys and girls—can take part in active sport and other physical activity at the same time. If what was being offered was a Titan college that had those sorts of facilities, I might begin to look on it as at least having one of the elements that would provide something particularly useful for the boys and possibly girls in it.
I think that we were all really grateful for the opportunity given to your Lordships to meet Ministers and to discuss what was proposed, because it gave us a real insight into those proposals. The Minister who was present from the Commons, Jeremy Wright, who is now the Attorney-General, as has been said, was pressed on this matter, and it was absolutely clear that there was one reason and one reason only for having this proposed secure college on the site where it is to take place—and that is that the Government already had the site and had to do something with it. There was no question of looking for a suitable site with perhaps 50 acres on which to build a secure college—and no question of selling the site that they have, possibly for housing development, to meet the Government’s other policies. They took the site—and what were we told was the provision for sporting facilities? I will be corrected if I am wrong, but my clear recollection was that we were told that there was a five-a-side football pitch, a gym and possibly another outdoor facility.
For the number of children expected to be at this proposed secure college, one five-a-side football pitch, which I take to be rather smaller than a full-sized football pitch, and one other outdoor facility is a ludicrously inadequate provision. So it fails even the site test. I have no doubt that I will be told—because instructions are being obtained as we speak, of course—that there may be a little more sporting provision. But I say to the Minister that he will have to do an awful lot better than two, or even three, five-a-side football pitches for more than 300 children at a secure college.
The only other thing I wanted to say without repeating what has been said by other noble Lords is in the form of a question, which relates to subsection (3) of the new clause proposed in Amendment 43C, tabled in my name and those of my noble friends Lord Marks, Lady Linklater and Lord Dholakia. I invite the Minister to look at that subsection, which contains paragraphs (a) to (l) as requirements or aims for the secure college. In order to shorten my noble friend’s speech, I do not ask him to tell us which of those criteria he agrees with; I ask him to tell us which he disagrees with. I would be very surprised if he disagreed with a single one. If he agrees with most of them, or even with only paragraphs (a) to (d), the result is clear that the provision that the Government are asserting is just inadequate and they ought to go back to the drawing board, sell the site and give us a meaningful plan for a secure college.
My final point is that I have listened to all the NGOs in this area, and I doubt whether there is any area of human endeavour that contains more expertise than youth justice. I have yet to find a single, sane representative—indeed, I have yet to find a representative, never mind whether they are sane or not—of one of those NGOs who approves of this proposal. Somewhere, down between the floor-boards of government, we may find the odd official—though I doubt it; it is more likely a Minister—who really believes that this proposal makes any sense at all in the reform and education of young offenders so that they can lead normal lives when they reach the age of 18. If the Minister can cite any British independent source that supports these proposals, then we really would like to hear it. I urge on my noble friend, who is a very good analyst of evidence, that when one analyses the evidence on this issue it leaves the Government with a very threadbare case.
The Earl of Listowel (CB)
My Lords, one of the most respected organisations in this area is the Prison Reform Trust. Its director, Juliet Lyon, was formerly a head teacher, I believe, of a school for those with emotional and behavioural difficulties. She is therefore someone who speaks with authority in this area. Listening to the noble Lord, Lord Carlile, I am reminded again how all authorities in this area seem to be very concerned about the Government’s proposals. I share the concerns that have been raised across the Committee about the Government’s proposal.
However, perhaps I may apologise to the Minister, first for being absent, due to pressing business, from the two helpful briefings that he provided for Peers. Also, earlier this afternoon, I pressed him on an earlier matter that he was not in a position to answer. I had not fully appreciated that what happened in the other place put him in a position whereby he was unable to answer my question. I apologise to him for that.
What encouraged me in principle about the Government’s proposal was that a college for the education of these vulnerable young people might be a real centre for highly qualified staff, teachers, mental health professionals and social workers. My greatest concern over the years in which I have followed these issues about residential care for vulnerable young people is that, in this country in particular, I am afraid that we place the least qualified, least experienced staff to care for our most vulnerable children with the most complex needs. I hope that the new institution will feature highly qualified teachers working hand in hand with mental health professionals. However, from what I have heard so far, there is no assurance of that.
I highlight the principle of continuity of care, which from my experience is so important for so many of these young people. My noble friend Lord Ramsbotham talked movingly about it. It is about young people having the opportunity to have an adult take an interest in them and to develop a relationship with them over time. That is key for their recovery when, in my experience of young people in care, they have been let down by the people they love most. As a result, they find it difficult to make trusting relationships. The key job of the care system—probably of this new institution—is to enable young people who have lost their ability to trust other people to make and keep relationships. That is above even the importance of education. It is very important that these young people learn to read and write, but if they cannot form relationships with other human beings their prospects are very bleak. A couple of weeks ago I spoke to an academic who had been in care. He graduated from a young offender institution with no qualifications. He now works on policy around young people in care. He said to me, as a highly qualified care leaver, that the most important thing is to meet young people’s emotional needs.
The briefing states that three-quarters of young people will have grown up without the involvement of their father. Perhaps it is worth mentioning, as an aside, that more than a fifth of children in this country are growing up without one or other parent in their family. The OECD expects that figure to grow considerably: it will move to a third of young people growing up without one or other parent in the family—probably a father—within the next 10 to 20 years. At the moment, that figure stands at over a quarter in the United States. However, according to the OECD we are going to overtake the United States in the next 10 to 20 years. This is a matter to which we should give serious consideration.
I am very concerned that these young people should have continuity of relationships and of care. For instance, it is very important that they have a key worker within the setting who can develop a relationship with them over time. The issue of ratios was raised by my noble friend Lord Ramsbotham. In young offender institutions it is very hard for a prison officer to have that kind of relationship because he is responsible for so many young people. Although it is required, it is not worth the paper it is written on.
I return to my experience of the care system. I was involved, in a small way, with a report that was produced by the MP Ann Coffey, the chair of the all-party group for missing persons. The report was on children missing from care, particularly in the context of young women being groomed by outsiders. The Government gave a very positive response to it and produced three working groups. As a result of that we now have much stronger checks on local authorities placing their young people out of authority care. We found that far too many children in local authority care were being placed many miles away from their local authorities. The Government recognised in principle that it is best to keep them as near as home as possible, although there may be exceptional circumstances. It therefore concerns me that we will have one institution covering a third of the children in the custodial estate in Leicestershire. Many of them will be so far away from their families and the possible communities they return to that it will be very hard for them to resettle.
Visiting a secure training centre a while back, I was very impressed by the quality of teaching provided to the young people. I watched a class and spoke to the teacher, who said, “We really can give a good service here, but when they walk out of here it is as if they’re walking off a cliff edge”. Therefore, I share the concern expressed by many that this new institution risks producing a very severe cliff edge of services. The previous chair of the Youth Justice Board, Frances Done, who was very well respected, did great work towards the end of her tenure in developing regional consortia with chief executives and directors of local services to ensure that there was a seamless move back into the community at the end of custody.
Baroness Linklater of Butterstone (LD)
My Lords, I shall echo most of what has already been said. I think that around the Chamber we are pretty well agreed that what is being planned in general for the most vulnerable children in our community is entirely inappropriate and inadequate.
First, I shall speak to the new clause proposed in Amendment 43B concerning sentencing guidelines and provisions regarding secure colleges. The clause would amend the sentencing guidelines laid down in the Coroners and Justice Act 2009 in relation to those aged under 18. It states that no court should impose a custodial sentence upon an offender who is under 18 simply because a place happens to be available at a secure college when otherwise a community sentence would have been imposed, or impose a longer sentence precisely because a place at a secure college is available. It reflects a concern that sentencers might be attracted by the idea of a secure college at the expense of a community sentence because of the possibility of the education that may be on offer. That of course is very superficially attractive, not least because at this point in time we have no idea what that educational provision will consist of.
It is rather like when the DTO was introduced in 2000. It was attractive to magistrates because it appeared to combine punishment with rehabilitation and protection to society, but it simply resulted in a surge of children in custody. With similar perceptions, there is a real risk that secure colleges could drive up the numbers in custody. It is important to remember that custody really must be the disposal of last resort for young people in particular. They have the worst outcomes of all sentencing options for society, as well as for the offender, as 70% of children and 58% of 18 to 21 year-olds will reoffend within a year of their release.
We know that non-custodial sentences offer far better outcomes all round, particularly in terms of reoffending. However, the form of custody envisaged by the secure college, by virtue of its scale alone, offers little hope of achieving much in terms of improving the life chances of the children and young people it is planned that it will hold. Some 320 children under one roof, or at least in one campus, is just an impossible size for anything to be done—as everybody has been saying—on a personal basis.
There is an additional worry, highlighted originally by Sir Alan Beith MP at Second Reading in the Commons, that the education said to be on offer is likely to be piecemeal at best when the average length of custody is 79 days and hardly long enough to complete any course, even if a young offender happened to arrive at the college at the beginning of one. They take pot luck to join in when they arrive. So the reality of the college experience from an educational point of view alone is—
Lord Faulks
I am very sorry to interrupt my noble friend but I wonder whether she is not in fact talking to a different amendment.
Baroness Linklater of Butterstone
Oh, it is in a different group. I am so sorry. Shall I continue or shall I leave it?
Lord Faulks
I think, with respect, you could come back to it if we get to that point.
Lord Storey (LD)
My Lords, I apologise for not having spoken at Second Reading. I was thinking that had this proposal come when we were debating the Children and Families Bill, there would have been uproar all around the House.
As has been said, we have to remember that 70% of young offenders have special educational needs and 20% are currently on what are called educational statements. The word “college” of course means education but the notion that you provide that educational support in what will in fact be Europe’s largest children’s prison is quite concerning, as is the notion that you put 12 year-olds with older youths and take them away from their support systems, their family and friends. We have not as yet decided what the education package is going to be. If it is going to be a genuine education package then there have to be educational psychologists, speech and language specialists and people dealing in mental health issues to make it really effective.
I have two real concerns. First, one of the amendments talks about younger children. There are moments in your professional life where certain events happen and they are almost life-changing in their impact. I remember clearly an 11 year-old boy who came to my school. They discovered that his mother’s partner had been in Winchester prison for child abuse. The boy was immediately taken away from his family and put in a secure children’s home. He was 11 and all the other young people in the home were 15 and 16. With the help of the local MP we got him out of the children’s home within, I think, three to four weeks. That boy had changed beyond belief. He had become a drug pusher; he did not want to support his family any more; he became abusive; he became a bully—all the sorts of things you do not want. That is my concern about putting young children into such institutions—and they are children. At the age of 12, 13 or 14, we are talking about children. The notion of putting children into this kind of institution is, to my mind, terrifying.
My second point is on the need for education support, which I have just mentioned. I recently went to visit a youth offending team on Merseyside comprising a very professional staff who are doing a tremendous job. The team’s concern is that currently it cannot even get information from schools to find out whether the young people concerned have statements or their educational assessments. We will have to pin down what the support provided in a secure college will be and what help is to be given.
I am very concerned about this proposal. If it is going to proceed, the important issues around age, the admittance of girls and of education provision have to be clearly spelt out. If this is about saving money, let us be honest and say so. If this is about a secure unit, let us be clear about that. But if the word “college” is going to be used and it is about supporting young people in their education and preventing reoffending, the issues that have been expressed in this debate have to be clearly and skilfully dealt with.
Baroness Linklater of Butterstone
With the leave of the Committee, I wonder whether I could try to complete what I was going to say, especially on Amendment 43C in this group.
The plan that a secure college should hold such a wide age group of 12 to 17 year-old boys and girls would seem inevitably to present enormous safeguarding risks. There are only ever very small numbers of girls in custody. Some 96% of those being held are boys aged between 15 and 17 years. The Joint Committee on Human Rights said:
“We note that the Government does not appear to have carried out any equality impact assessments of the proposed secure colleges policy, and we recommend that such assessments should be carried out and made available to Parliament at the earliest opportunity”,
assessing in particular the impact on girls and younger children of detaining them in large, mixed institutions holding up to 320 young people, including older children up to the age of 18.
While it is true that secure training colleges and secure children’s homes have a mixture of ages and sexes, the crucial difference is that they consist of very small units that are usually close to the child’s home with lots of intensive, one-to-one support from well trained and highly qualified staff. That is something which is light years from anything a 320-bed secure unit is going to be able to offer. The real problem is that without any pilots and with very little information on how they will be run and staffed, and about what programmes will be on offer, far too much detail is missing. That makes a realistic assessment by anyone impossible to do. It is a completely inadequate basis, I would suggest, on which Parliament can either judge or give its approval. What we do know is that this is a vulnerable, needy and challenging group of offenders for whom the risk of reoffending is very high. The chances of their complex needs being met in an enormous institution are low at best. I shall be very interested to hear what the Minister has to tell us when he comes to reply and how he will meet so many profound concerns.
Lord Faulks
My Lords, these amendments have allowed us to have a detailed and valuable debate and I welcome the opportunity to clarify the Government’s position on a number of aspects of how secure colleges will operate. However, so many questions have been posed during the course of the debate that I cannot answer all of them in my response. I will study Hansard carefully and write to all noble Lords and I will ensure that a copy of that letter is placed in the Library. If I do not deal with all the points that have been made, I hope that noble Lords will forgive me, but I will try to address at least in general terms the anxieties that have been expressed across the Committee.
On a positive note, there has been acknowledgement that the importance of education—which the Government say is reflected in the establishment of these secure colleges—is paramount, particularly with this cohort who sadly have rarely had access to any continuity in terms of their education and who would clearly, in the right circumstances, benefit a great deal from that. The Government made clear in their response to the Transforming Youth Custody consultation—this is my answer to the amendments in relation to secure children’s homes—that we accept that there will still be some detained young people who will require separate specialist accommodation on the grounds of their acute needs or vulnerability. We are committed to continuing to provide separate specialist accommodation for this small group of young offenders.
Your Lordships will have noticed that secure children’s homes are absent from the list of the types of youth detention accommodation that the Secretary of State may provide, as set out in the revised Section 43 of the Prison Act 1952 included in Clause 29. That is because local authorities have the power to provide secure children’s homes and the Secretary of State has never had such a power. Similarly, it is for local authorities to provide sufficient places as are required in secure children’s homes and we think that it is right that they retain responsibility for this. As noble Lords are aware, these will contain not only those who are there because they have been sentenced but those who are there due to the various duties on local authorities to safeguard children.
The noble Lord, Lord Beecham, referred to the desirability of more places being available in secure children’s homes. It is correct that we have reduced the number of places in secure children’s homes to 138. This reflects a positive step: the fact that there is a fall in demand for youth custody and the demand for secure children’s home placements in particular. We have in fact decommissioned a far greater number of places in youth offender institutions in recent years. A number of whole establishments have closed. Although finance is a factor that we cannot ignore in this process, it is not the only factor. If we were to place all young people in custody in secure children’s homes, it would cost in excess of £100 million per annum more than we currently spend.
I turn to Amendments 42F, 42G and 43C. Concern was expressed about the access of girls and those aged under 15 to secure colleges. I am sorry for interrupting the speech of the noble Baroness, Lady Linklater, but she came back on this point and made some helpful observations. I do recognise the concerns about the safeguarding of both under-15s and girls in an establishment where the majority of young people will be boys aged 15 to 17. I also accept that the educational, health and emotional needs of under-15s and girls may often be different from those of the broader population of 15 to 17 year-old boys who are likely to make up the majority of those in secure colleges.
However, the Government believe that these risks can be properly managed, as they are in secure training centres and secure children’s homes where boys and girls of different ages are accommodated. I should like to reassure noble Lords that the design of secure colleges will be such that younger and more vulnerable children will be accommodated in units separate from the mainstream group of older detainees and that there will be facilities to ensure that they can access education and other services separately. That point was made during the course of the all-Peers meeting to which a number of noble Lords referred when putative plans of the secure college were shown.
My noble friend Lord Carlile was critical, and has repeated his criticism, of the lack of outside space. He is determined that somewhere there is a ministerial vision of some equivalent to a public school. This Minister pleads not guilty to that. The advantage of playing fields is considerable. At the establishment to which he referred, that was perhaps the only main advantage of the school, although that is not of course the case now.
There are inevitably some difficulties in providing appropriate space but I accept the general point that physical exercise in appropriate circumstances can be of profound therapeutic assistance. Although at the moment we have a limited amount of space, as the noble Lord rightly apprehended, and not just today, I have been making inquiries into the possibility of acquiring some extra physical space to try to accommodate the desirability of providing additional facilities. I hope to be able to come back to noble Lords and provide some more information about that in due course.
The aspiration of noble Lords in the proposed new clause is for single-sex secure colleges, but the Government believe it is better for legislation to provide for the option of secure colleges accommodating both boys and girls. I make it clear to the Committee that no final decisions have been made on whether girls and under-15s will be accommodated in the pathfinder secure college. I also assure noble Lords that any introduction of these two groups in the pathfinder secure college—which is what this is—would be carefully phased: we would not place them there from its opening.
A number of the matters in the new clause proposed by noble Lords in Amendment 43C will be covered in the secure college rules, which I believe is the proper place to consider them rather than in the Bill. As I have already explained to the Committee, we intend to bring forward a consultation on our approach to the secure college rules before Report, which will provide an opportunity for the Government to set out and seek views on their plans for the basic requirement of secure colleges.
The new clause proposed by the noble Lord, Lord Ramsbotham, and other noble Lords requires the Secretary of State to conduct a pilot of no more than 50 people before commencing the secure college provisions. I recognise the concern that any new form of youth custody must be able to ensure the welfare and safety of the young people placed there. I reassure noble Lords that the opening of the pathfinder secure college will be extremely carefully managed. We anticipate that it will take some months before the pathfinder begins operating at full capacity, and this will only happen once the operator has demonstrated that it is delivering a high-quality service in a safe environment. With these appropriate precautions in place, I do not agree that a limited pilot scheme is required.
I sympathise with noble Lords’ desire for greater information on the precise form that education will take in a secure college. However, I do not think it is right for detailed information on the educational requirements to be set out in legislation or for the Secretary of State to dictate what the content of the educational programme must be. We want secure college providers to have the freedom to deliver innovative education that is imaginative and appropriately tailored to the young people in the establishment. It is important that secure college providers have the flexibility to tailor education to the different needs of the young people they accommodate. The form that this education takes, the number of hours that are spent in the classroom or the workshop, and how it is delivered, cannot be helpfully pinned down in secondary legislation.
The crucial point is that secure colleges must deliver a full and quality curriculum that motivates and challenges all young people. The effectiveness of the education in a secure college, including for those with special educational needs—referred to by many noble Lords—will be judged by a robust monitoring framework involving both Ofsted and Her Majesty’s Inspectorate of Prisons.
As to special educational needs provision, it is intended that the principal of a secure college will have overall operational responsibility for the services provided by the establishment, including the workforce delivering those services, and will work with the local authority responsible to ensure that young people with special educational needs receive appropriate support while detained in a secure college.
Noble Lords will be aware that the statutory responsibilities of both local authorities and custodial establishments in respect of young people with education, health and care plans has recently been strengthened by the Children and Families Bill. In addition, we will require special educational needs co-ordinators in secure colleges to hold qualified teacher status, in line with requirements in the mainstream.
I fully understand my noble friend Lord Hodgson’s concern to ensure that the education and training that young people receive while detained in custody is structured to their individual needs and takes account of their prior learning, as well as their aspirations on release. Secure colleges will improve on the existing processes, and ensure that all young people receive an individual learning plan based on a thorough assessment of their needs and prior learning experience. However, to create in the Bill a duty on the Secretary of State would, in our view, be disproportionate.
A number of observations were made to the effect that the period of time that an individual might spend in a secure college was not necessarily conducive to education. Sadly, we often deal with a cohort of young people for whom continuity has been notably absent, often even from one day to another in educational establishments. Ideally, one might think that educational provision ought to match precisely its mirror image in the community. However, a sufficient bank of time in a secure college would be intended, with an individually tailored plan, to ensure that some real benefit was derived from that exposure to education, in circumstances where the individuals have probably had very little continuity at all.
My noble friend Lord Hodgson referred to the value of online learning tools. We are exploring the extent to which we might be able make use of such tools, both in existing custodial establishments and in secure colleges. As those who saw the plans will have seen, there will be plenty of access to computers in the course of the educational provision. However, there are, as noble Lords will understand, precautions that need to be taken to restrict access to the internet—not least to protect the victims of crime from further harm.
As for the rules referred to in Amendment 43, I am grateful for this amendment. It raises a principle which I am sure all noble Lords will agree with: that the Government’s proposals for secure colleges should be subject to proper consideration and scrutiny by Parliament. I agree with the noble Lord, Lord Ramsbotham. I look forward to detailed scrutiny of these provisions as the Bill continues its passage through the House. However, we believe it is appropriate that the Secretary of State should have the same powers in relation to secure colleges as he has with other forms of youth custodial accommodation. We consider that the negative resolution procedure represents a suitable degree of oversight. In addition, as I set out at Second Reading on 30 June, we will launch before Report a public consultation on our approach to secure college rules. We will set out and seek views on the principles underlying the rules and, where appropriate, some indicative draft provisions.
As for Amendment 43D and the report to Parliament before commencement, I do not think it is right to set out extensive detail on how secure colleges will operate before these provisions can commence. In the Government’s response to the Transforming Youth Custody consultation, we explained that we want to allow providers to develop creative and innovative ways to deliver this new form of youth custody. Providing a report to Parliament before these provisions can be commenced—and therefore before an operator can be secured—would significantly undermine this approach.
In my view it is for primary legislation to set out the framework for secure colleges, for this to be further developed by the secure college rules—the process that I have just outlined—and for detailed operational requirements to be determined by the Secretary of State via the contracts that he enters into to provide secure colleges. Once we have identified an operator to run a secure college, the contract will be made publicly available, including the agreed operator service specification, with appropriate redactions where information is commercially sensitive. I hope that this allays to some extent the concerns expressed by the noble Lord, Lord Ramsbotham.
As to Amendment 48 and staffing, I am sure that noble Lords would agree with me that we want secure colleges to employ high-calibre individuals who are able to help deliver this new and bold form of custodial provision. This applies as much to custody officers who will be responsible for undertaking some of the most important functions in secure colleges as it does to teachers, health professionals and others.
Lord Marks of Henley-on-Thames
My Lords, my noble friend Lady Linklater spoke to Amendment 43B as if it were part of this group. There is nothing more that we wish to say on that amendment, which is in a further group, and because of the time I wonder if the Minister could indicate if he has anything special to say about it, subject to anything that the Labour Front Bench wishes to say.
Lord Faulks
I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.
We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provide that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,
“so serious that neither a community sentence nor a fine alone can be justified”.
That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.
As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.
When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.
Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.
I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.
Lord Beecham
My Lords, I look forward to whiling away the long Summer Recess by reading the Minister’s helpful replies in Hansard, and his even more helpful letters, which will no doubt find their way to me and to other noble Lords. It is, however, necessary to say that what we are being effectively invited to do is to sign a blank cheque to as yet unknown operators of an entirely new institution conceived on the basis of no evidence and with no clear idea of how it is to operate.
In a particularly sensitive area of penal policy, indeed social policy, that is simply unsatisfactory, and I have no doubt that many of us—from different parts of the House—will wish to return to these matters on Report. Having said that, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, Amendment 42L is merely formal. This group refers to the use of force in the secure colleges, and in particular to force against young persons detained there.
Amendment 42M, which is not purely formal, would require the secure college rules, in so far as they authorise the use of force against young offenders—it is much narrower than the other amendment relating to procedure—to be made by statutory instrument under the affirmative rather than the negative procedure. Under this amendment, it would also be a requirement that the Secretary of State should consult on the proposed secure college rules with the Youth Justice Board and the Independent Restraint Advisory Panel before laying a draft before Parliament.
The requirement for an affirmative resolution for secure college rules authorising force was a recommendation of the Delegated Powers and Regulatory Reform Committee, on which I serve. The recommendation was made notwithstanding that other prison rules—even for young people, as my noble friend has pointed out—are subject to the negative procedure. However, these are extremely important rules concerning the use of force against children. The committee was very influenced by the clear views of the Joint Committee on Human Rights and the decision of the Court of Appeal in 2009 in C v the Secretary of State for Justice that the proposals for the use of force for the purpose of maintaining good order and discipline were, as they stand in the Bill, inconsistent with Article 3 of the European convention.
The provisions authorising the use of force in the Bill for contracted-out secure colleges are indeed profoundly discouraging. As I mentioned, force is to be permitted to be authorised for purposes which include ensuring good order and discipline on the part of inmates and attending to their well-being. These purposes are far too wide. They smack of a military origin and are out of sympathy with contemporary views on the restriction of the use of force against children. Your Lordships will wish to be extremely vigilant where we are concerned with the authorisation of such force. We accept the Joint Committee’s clear view that the proposed authorisation of force would infringe Article 3.
Contemporary views on the use of force against young people are that the correct way to frame such authorisation is to ensure that the force used is minimal and restricted to what is absolutely necessary. Our Amendment 42N attempts to achieve this and its purposes are restricted by reference to five conditions. It says that,
“the first condition is that the force is authorised only for the purpose of … self-defence or the protection of others, including the protection of the person against whom the use of force is authorised … the prevention of serious damage to property”,
preventing escape and carrying out an authorised search. The second condition, which is crucial, is that force can be authorised for use only “as a last resort”. The third is,
“that the force authorised must be the minimum necessary to achieve the purpose”.
The fourth is that the force must be used,
“for the minimum duration necessary to achieve”,
that purpose, and the fifth is that the force should be,
“limited to techniques forming part of an approved system of restraint”.
We have added to that a requirement that:
“Secure college rules must provide that”,
all those who are “authorised to use force” should have been properly trained,
“in the use of force and in minimum restraint techniques”.
This represents a sensible contemporary view of the appropriate authorisation of the use of force in such colleges as are proposed for the restraint of young people. We contend that these restrictions should appear on the face of the legislation, in the terms that we have described. I beg to move.
Lord Ramsbotham
My Lords, I shall speak briefly to Amendments 46 and 46A in this group. All I want to say is that I for one simply do not understand why there is any need to have this proposal in here, when already there has been an independent review of restraint in juvenile secure settings, which was chaired by the previous chairman of the Royal College of Psychiatrists. She was a most eminent adolescent psychiatrist and she produced what were called minimum rules, which were published by the previous Secretary of State. If minimum rules for the use of restraint in secure children’s settings have already been produced by a Secretary of State, I simply cannot see why there is any need to go down this route, which seems to be an own goal of monumental proportions when there is already something to prevent you even being on that pitch.
Baroness Stern (CB)
My Lords, I will not add to the Minister’s misery for too long and will speak briefly in support of these amendments.
In 2011-12, according to figures from the Justice Select Committee, there were 8,419 incidents of “restrictive physical intervention”, which I know means force, on children and young people under 18 in custody. This figure was a 17% increase on the figure for the preceding year. Two hundred and fifty-four of these incidents led to injury, 236 of those were minor injuries and 18 children were seriously injured. We know about these children. Nearly all of them grew up seeing violence between men and women, by men and women on children, by children on each other and on their streets—violence is all around them. Then they progress to the care of the state, when they are classified as offenders or remanded in custody en route to becoming offenders, and we subject them to more violence. We should restrict as far as is humanly possible the amount of violence in institutions run by the state, not open the door to its greater use. Therefore, will the Minister explain why, since these are to be secure colleges and places of education where children will presumably be helped to build self-esteem and confidence, the Government are opening a discussion on widening the circumstances in which the use of violence is permitted?
Furthermore, I understand that in the current system to which the noble Lord, Lord Ramsbotham, has just referred, two pain infliction techniques are still allowed. One involves bending the thumb backwards until the pain is so severe that the restraint is successful and the other involves applying pressure to the child’s neck. The argument for these techniques is that, in a life or death or serious danger situation, inflicting pain is a quick way of stopping the dangerous behaviour. Will the Minister tell the House whether it is envisaged that pain distraction techniques will be available to the teachers and other staff in secure colleges to deal with threats to good order and discipline? I mention teachers specifically because it is hard to see how a person helping a child to learn can also inflict painful violence on that child. I would also like to ask the Minister how he, as an extremely eminent lawyer, views the compatibility of the Government’s proposed regime for the use of force in a secure college with the United Kingdom’s obligations under the Convention on the Rights of the Child.
The Earl of Listowel
My Lords, experienced practitioners in residential settings, particularly local authority secure children’s homes, always tell me that the key to behaviour management and to avoiding escalation into using force is building relationships with the staff.
I was grateful for the Minister’s careful and considered response to earlier concerns. However, I go back to the staffing because in this country there seems to be such an underestimation of the level of qualification, understanding and support and development that staff need to work with vulnerable children, certainly those in our children’s homes, which I frequently visit. Ninety per cent of staff in children’s homes in Denmark have a degree-level qualification. In Germany, the figure is 50%, whereas in this country it is 30%. That was the situation about five years ago. Yet in Denmark and Germany half of children in care are kept in residential settings, so they have a far lower level of complex needs. We have far less qualified staff working with more vulnerable children. I am afraid that is a common experience across our children’s services in this country. We underestimate the skill involved in working with children who have been deeply damaged and the need to have really well qualified, reflective practitioners.
I visited Rainsbrook Secure Training Centre shortly after the death of Gareth Myatt while he had been restrained. My sense from that visit was that there was great regret but that it was okay: procedure had been followed. That generally sums up the culture in this country. We train staff up to be competent and follow procedure. In certain circumstances that is exactly right. What those on the continent have done is to recruit and select people who can think and who are deeply reflective, and who are trained to understand child development. They work hand in hand with mental health professionals to reflect on their relationships with young people and get the best from them.
If the Minister is successful in getting contracts for qualified staff who understand child development and, because they do that, work with mental health professionals to reflect constantly on their relationships with young people, we will be able to avoid the use of force as far as possible. In a large institution, however, it may be more problematic. There have been 16 deaths of children in custody since 2000; all of those have been in the larger institutions, the YOIs and the STCs, and not one in a local authority secure unit. Obviously they have had more children go through them, and that is important to bear in mind. I look forward to the Minister’s response.
Baroness Howe of Idlicote
My Lords, I shall share just a brief word, because I was unaware that we were going to be dealing with this clause. If we had been told that there are already minimum rules for restraint in existence, and bearing in mind strongly what has been said about the damage that would almost certainly have been done to these children over a number of years, as the noble Baroness, Lady Stern, stressed, then I think that it would be a really dangerous scenario to assume that what was described as two pain infliction methods would be the expected way of dealing with severely damaged children. They would be likely to be far more dangerously infected with these sorts of policies going into adulthood.
I hope that the Minister will be able to reassure us that an extremely careful look will be taken at whatever forms of restraint are to be used. The point made about properly trained staff, who know what they are doing, is crucial too.
Baroness Linklater of Butterstone
My Lords, the Joint Committee on Human Rights has found,
“that it is incompatible with Articles 3 and 8 ECHR for any law, whether primary or secondary legislation, to authorise the use of force on children and young people for the purposes of … discipline … we recommend that the relevant provision in Schedule 4 of the Bill should be deleted, and the Bill should be amended to make explicit that secure college rules can only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others; and that only the minimum force necessary should be used”.
The children and young people who are in custody are the most needy and difficult in the system, as we have already agreed, and present many and ongoing challenges. That is why it is so important that force is never, or extremely rarely, used. It is also why the experience and training of staff is paramount. I have seen expert, careful and skilled staff manage a potentially explosive situation and ensure that calm prevailed without any need to use force. It was most impressive.
Force tends only to provoke force and exacerbate situations in a distressing way. It also legitimises the use of force by staff and sends out the very same message to the young people, which, of course, is precisely the opposite of what is needed. That is why it is so important that we have much more detail on what the training, skills and experience of the staff who are likely to be employed in the secure college will be. I hope that the Minister will be able to give us an explanation and reassurance that special attention is going to be paid to this issue. An establishment of the scale planned by the Government is likely to create the most challenging environment that anybody working in this field will ever have had to deal with.
It appears that MoJ officials are planning to outline their expectation of when force can be used, but we urge that primary legislation remains the proper place to ensure proper safeguards. However, I understand that it is highly likely that the passage of this Bill will be completed before the final version of the rules is published, thus preventing parliamentary scrutiny. I hope the Minister can give some clarity on this.
Lord Beecham
My Lords, one of the most reprehensible provisions in this deeply flawed part of the Bill is that dealing with the power to be invested in those contracted to run secure colleges to use force to maintain good order and discipline, as set out in paragraphs 8, 9 and 10 of Schedule 6. Curiously, paragraph 10 of the schedule empowers a secure college custody officer, whose qualifications, as we have already heard, are not prescribed, to use reasonable force “where necessary” in carrying out the functions set out in paragraphs 6 and 9,
“if authorised to do so by secure college rules”.
Yet, as we have already heard, the Bill provides no mechanism for parliamentary approval of those rules.
The schedule therefore creates a situation in which force can be used—on children as young as 12 as the Bill now stands—to,
“prevent their escape … to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts … to ensure good order and discipline … and … to attend to their well-being”.
The notion of exercising force to attend to somebody’s well-being is intriguing. It would be interesting to hear the Minister’s explanation of that term. In addition, the custodial officer may use such force to search a person detained in the college. We are not just talking about conduct but about searches. These are very widespread areas in which force can be used.
As we have heard, the Joint Committee pointed out that this topic has been exhaustively examined by the committee itself, beginning as long ago as 2007-08 with its report The Use of Restraint in Secure Training Centres, and its view was upheld by the Court of Appeal which held that the use of force to maintain good order and discipline was incompatible with Article 3 of the European Convention on Human Rights which prescribes the right not to be subjected to inhuman and degrading treatment. Amazingly, the Government sought to argue that the court’s decision was limited to particular techniques to cause pain, whereas the committee points out that the court’s judgment,
“was quite unequivocal that the Rules were … incompatible with Articles 3 and 8 ECHR ‘and must be quashed on that ground’”.
The committee went on to dismiss the ludicrous attempt by the Government to shelter behind the fact that the Bill leaves the use of force to be defined by the college rules. It goes on to question the compatibility of the use of force to enforce good order and discipline with the UK’s obligations under the UN Convention on the Rights of the Child, as referred to by the noble Lord, Lord Marks, and the UN Convention against Torture. The former explicitly declares:
“In all actions concerning children … the best interests of the child shall be a primary consideration”.
Lord Faulks
My Lords, I am grateful for the opportunity to debate these amendments from various noble Lords. I recognise that the use of force in relation to young people in custody is a sensitive and important issue. I will explain the effect of these amendments, and also our intentions in respect of the use of force.
The effect of the amendment proposed by the noble Lord, Lord Ramsbotham, would be to remove the power of custody officers in secure colleges to use, if authorised to do so by the rules, reasonable force where necessary in carrying out their functions. I am sure that noble Lords would agree with me that there are some circumstances, such as to prevent an escape from custody or to prevent harm to themselves, another young person or staff member, in which the use of force could be necessary and where it is desirable to have rules setting out when, how and what force a custody officer is authorised to use. The effect of this amendment would be to prevent that, and we believe that that is too limiting.
Another amendment differs in that it sets out a series of circumstances in which rules may authorise the use of force. The effect of this amendment would be to restrict the circumstances in which custody officers can use force, if authorised by rules to do so, to the prevention of harm to the child or others.
Amendments 42N, 46B and 46C, tabled by the noble Lords, Lord Marks, Lord Carlile and Lord Dholakia, and the noble Baroness, Lady Linklater, would prevent the use of force to ensure good order and discipline and have the effect of setting out in detail the conditions which must be satisfied in relation to any use of force by secure college custody officers.
In relation to use of force more widely, I should like to make clear, and I can reassure your Lordships, that we agree with the conditions set out in these amendments that in all cases force should be used only as a last resort; that the minimum amount of force should be used for the minimum time possible; that only approved restraint techniques may be used; and that they should be used only by officers who have received training in those techniques.
Considerable improvements have been made to restraint practice in recent years, including the introduction of a new system of restraint known as MMPR. It has been independently assessed by a panel of medical and child welfare experts. The Independent Restraint Advisory Panel was formed specifically to monitor the implementation of MMPR. It is currently being rolled out to under-18 young offender institutions and secure training centres. It is our intention that this system of restraint would also be used in secure colleges.
The fundamental principle of MMPR is to minimise and, wherever possible, avoid the use of physical restraint. Staff working with young people in STCs and under-18 YOIs receive a comprehensive programme of training that puts considerable emphasis on using appropriate de-escalation and deceleration techniques—non-physical interventions—to ensure that restraint is only ever used as a last resort, when no other intervention is possible or appropriate, and that if use of force is required it is the minimum possible for the minimum amount of time.
I recognise that the issue of use of force to ensure good order and discipline is one of the primary concerns behind these amendments. A custody officer’s duties include ensuring good order and discipline, and the Bill provides that reasonable force may be used for this purpose, but only if specific provision is made in secure college rules. Rules are the correct place to be setting out the boundaries on use of force. The drafting in the Bill ensures absolute clarity on this point; a custody officer must be authorised by the rules to use force. I recognise that the term “good order and discipline” could be seen to be too broad in this context, and perhaps the term “discipline” is not helpful, as it could imply some element of punishment. We are clear that any use of force for the purposes of disciplining and punishing is prohibited. However, it is worth noting that use of reasonable force to ensure good order and discipline is provided for elsewhere in legislation. For example, although a different setting to custody and covered by specific guidance, use of reasonable force for maintaining good order and discipline is permitted in schools.
As I set out in the document that I sent to all Peers before Second Reading, the Government’s position is that force may be used only to ensure good order and discipline where there are clear risks to maintaining a safe and stable environment for young people, and that the use of force is a necessary and proportionate response in order to protect the safety and welfare of the individual or of others.
We consider that there may be limited situations in which all attempts at resolving and de-escalating an incident have failed, and where a young person’s behaviour is such that it is impacting on their own safety and welfare or that of others. In those limited situations, and then only as a last resort, we believe that some force—the minimum necessary, for the shortest time possible and subject to strict conditions and safeguards designed to ensure respect for the young person’s dignity and physical integrity—may be necessary.
Furthermore, force for reasons of punishment would not be permitted, and use of restraint techniques intended to cause pain would not be permitted. Use of force would be permitted only when staff are satisfied that they have assembled the resources to ensure the safest use of force and a full risk assessment has been conducted. This includes the attendance of healthcare staff.
As I explained to the House at Second Reading, ahead of Report we will launch a public consultation on our approach to secure college rules. This consultation will include our proposals relating to the use of force to ensure good order and discipline, as well as the use of force more widely. I will welcome responses from noble Lords and others on this important issue.
Regarding the noble Lord’s Amendment 42M, as a matter of principle I do not think it is necessary to specify in the Bill who the Secretary of State has to consult with. We will of course work closely with the Youth Justice Board as we plan for the introduction of the pathfinder secure college. At the end of April 2014, following the conclusion of its work, the Independent Restraint Advisory Panel was dissolved.
I recognise that the use of force in youth custody is a very sensitive issue. We are conscious of our international obligations and of the implications of the Court of Appeal’s decision in C. I hope in this reply I have been able to provide some assurance of the Government’s intentions regarding the use of force in secure colleges. I should also add that we are conscious of the Delegated Powers Committee’s recommendation, which we will consider, and I look forward to continuing this discussion through our public consultation. In the light of that reassurance I hope the noble Lord will withdraw the amendment.
Lord Ramsbotham
My Lords, I was responsible for conducting an inquiry into the death of an Angolan called Jimmy Mubenga in an aircraft on the way back from Heathrow. He was under the escort of G4S guards, who have subsequently been charged with his murder. One of the problems that has come up with the Home Office is that nobody is responsible for the oversight of the training and assessment of the security company guards who are meant to escort people who are being deported from this country.
The problem is that the secure college staff will also be from the private sector. The Home Office is currently working out a code of practice that includes the involvement of the Security Industry Authority, which has responsibility for the supervision of people working in the criminal justice system. I very much hope this will be included in the work. It is all very well saying that staff will be trained, but who is responsible for both supervising the training and making certain that people’s training is up to date? That has been one of the problems with the escorts of people who are deported.
Lord Faulks
I am grateful for that contribution. I do not propose to give a detailed response now, but it is something that we will factor in.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to my noble friend for the response he has given. It appears, at least in principle, that all the conditions we set out in our amendments are accepted by the Government. We want to see some security about the future implementation of those conditions. However, we understand that the Government’s position is sympathetic to what we say. Saying that, I beg leave to withdraw the amendment.