House of Lords

Wednesday 22nd October 2014 Lords Chamber

Wednesday, 22 October 2014.

15:00

Prayers—read by the Lord Bishop of Coventry.

Introduction: Lord Fox

Wednesday 22nd October 2014 Lords Chamber

15:08

Christopher Francis Fox, Esquire, having been created Baron Fox, of Leominster in the County of Herefordshire, was introduced and took the oath, supported by Lord McNally and Baroness Northover, and signed an undertaking to abide by the Code of Conduct.

Qatar: Football World Cup

Wednesday 22nd October 2014 Lords Chamber

Question

15:14

Asked by

[Lord Monks]

To ask Her Majesty’s Government what assessment they have made of the treatment of workers in Qatar during the construction of World Cup 2022 venues.

[The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)]

My Lords, we welcome the serious steps taken by the Qatari authorities towards improving regulations governing the treatment of migrant workers. We continue to encourage the Government of Qatar to set out a clear timescale for implementing these reforms, and we stand ready to support these efforts where we can.

[Lord Monks (Lab)]

I thank the Minister for that reply. However, given that the death rate on Qatari World Cup sites is running at 40 a month—contrast that with no fatalities on the Olympic sites in the UK —and given, too, that the promised end to the medieval kafala bonded labour scheme has been further postponed, is it not time for the Government to step up their efforts to stop those sites being more killing fields than playing fields, and prepare to call on FIFA to show a red card to Qatar and move the World Cup to somewhere that deserves it?

[Baroness Anelay of St Johns]

My Lords, there were several important questions within that. To summarise, there is certainly going to be an end to the kafala system: the Government there have made it clear that they will make the changes to remove the bonded system and move towards a more appropriate one, where we would expect the health and safety of the workers to be more properly respected. As for the position of FIFA, and whether the World Cup should be moved, that is a matter for the sporting authority itself. Clearly, our view is that every major sporting authority should be responsible and transparent in its dealings.

[Lord Hylton (CB)]

My Lords, the noble Lord, Lord Monks, is quite right to raise this issue well in advance. Is the Minister aware that this system of tied labour prevails throughout the Gulf states, and that it entails heavy payments for visas and work permits, often for very poor people, who end up pretty well tied to one employer? If that employer goes bust, they have very little redress. Will the Government take the same approach throughout the whole of the Gulf?

[Baroness Anelay of St Johns]

My Lords, we discuss these matters with Governments around the Gulf; we have certainly done so recently both in Saudi Arabia and in the UAE. I note that in Saudi Arabia there has been a move towards maintaining more accurate labour records, and we hope that recent legal reforms should then improve the most basic rights of migrant employees.

[Lord Holmes of Richmond (Con)]

My Lords, when we were planning the London Olympic and Paralympic Games, it was not just about a sensational summer of sport in 2012: we had safety hard-wired into everything we did. Can the Minister assure the House that the FCO and UKTI are doing everything to enable the great British companies that worked on our Games to get involved, to win contracts and to help Qatar 2022, and every international sporting event, to be safe, secure and successful?

[Baroness Anelay of St Johns]

My Lords, we do, and it is right that we do. Staff in the British embassy in Qatar meet Qatar 2022 officials on a regular basis. As part of the discussions, they highlight British-owned companies’ expertise in staging global sports events. Indeed, the embassy has engaged with the supreme committee for delivery and legacy on many events, such as Soccerex 2014 and the global sports mission in February 2014, both in Qatar and in the UK, to showcase British expertise. We look forward, I hope, to British companies winning substantial contracts. Let us wait and see.

[Lord Bach (Lab)]

My Lords, the United Nations International Labour Organization is the body that perhaps could best help construction workers in Qatar. Why have the Government cut all UK support for the ILO? Was that not a very serious mistake? What are their plans to restore that funding?

[Baroness Anelay of St Johns]

My Lords, we support the work of the United Nations and all its supporting bodies through our payments to the United Nations. The noble Lord will know that we carry a very heavy burden and we bear it lightly, although of course we want to see that the money is used well. We use our expertise throughout our embassies to ensure that we negotiate with, support and encourage Governments to ensure that labour reforms are effective. In Qatar they have already shown their willingness to take forward those labour reforms.

[Lord Addington (LD)]

My Lords, does my noble friend not agree that it might be a good idea if the British Government made sure that all British bodies responsible for planning and helping at any future international sporting events ensured that a commitment up front to very good health and safety practices was an important part of that support, and that we would vote against any future bid where that was not the case?

[Baroness Anelay of St Johns]

My Lords, my noble friend makes a very good point. Indeed, the United Kingdom is one of 46 countries that adhere to the OECD guidelines for multinational enterprises. The guidelines provide detailed voluntary standards for responsible behaviour among companies bidding in such contracts, including standards relating to promoting development and encouraging suppliers and other business partners to act responsibly. That is the right way forward.

Scotland: Devolution Commission

Wednesday 22nd October 2014 Lords Chamber

Question

15:20

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what progress has been made by the devolution commission, chaired by Lord Smith of Kelvin; and when they expect it to report.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the noble Lord, Lord Smith of Kelvin, has already done his work and is today chairing the commission’s first plenary session. All of Scotland’s five main parties are taking part in this process. There is a clear timetable for the work and an opportunity for people across Scotland to participate. The Smith commission will produce a heads of agreement report by 30 November this year.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am grateful to the Minister for his Answer. However, does he agree with me that the Smith commission should not operate on the basis of party horse trading but on principles, particularly the principle that each power devolved should be appropriate to be exercised at that level, and that Holyrood should be given tax-raising powers sufficient to enable it to raise enough money to cover the expenditure for which it is responsible?

[Lord Wallace of Tankerness]

My Lords, I agree with the noble Lord that this should not be a question of horse trading. Ahead of today’s meeting the noble Lord, Lord Smith, indicated that he believed that there would be a will among the parties to reach agreement. I do not think that it would be appropriate for the Government to dictate to the Smith commission what the principles should be, although I do think that the noble Lord makes an important point about principles. The one important, fundamental principle is that all five parties should work to strengthen the Scottish Parliament within the United Kingdom. On 18 September, the people of Scotland voted for Scotland to remain part of the United Kingdom, and that is a principle we cannot lose sight of.

[Lord Palmer (CB)]

My Lords, given that there is a rumour going around that Scottish MPs in the other place will not be able to vote on only English matters, might those of us in this House who live north of the border be affected by the same rule?

[Lord Wallace of Tankerness]

My Lords, as we heard the Reading Clerk read out a moment ago, and have heard numerous times, we are Peers of the United Kingdom. That puts us in a slightly different position from those who are elected to represent specifically Scottish constituencies.

[Lord Purvis of Tweed (LD)]

My Lords, it is, indeed, a historic day when all five major parties in Scotland meet round the table to discuss the way forward for Scotland. This will require those parties that have published proposals not only to form an agreement on the basis of principles but to compromise and, indeed, for some—not exclusively the Labour Party—to go beyond the proposals that they have already published. If that is the case, which we all hope that it will be, will the Government commit to promote actively the result of this to make sure that all families and voters in Scotland are aware of these home rule proposals for the long term? Will the Government also commit to meeting their deadline for bringing forward draft clauses to bring forward the conclusions of the Smith commission for legislation?

[Lord Wallace of Tankerness]

My Lords, on my noble friend’s latter point, the Government have indicated that they will bring forward draft clauses and, indeed, will do so by Burns Night, 25 January 2015. My noble friend makes an important point about the importance of ensuring that people in Scotland know what these proposals will be. We have sometimes undersold the very significant additional powers that have been made available to the Scottish Parliament under the Scotland Act 2012.

[Lord Wigley (PC)]

My Lords, does the noble and learned Lord accept the words of the Prime Minister at Question Time today when he confirmed that full fiscal autonomy and full control of Scottish taxes were within the options of the Smith commission? If that is so, how can it be achieved within a unitary state, and does it not beg the question that, inevitably, we must move towards a federal or quasi-federal structure?

[Lord Wallace of Tankerness]

The noble Lord knows what my party’s position on federalism has been for the last 100 years-plus. However, the important thing is that the noble Lord, Lord Smith of Kelvin, and his commission are allowed to get on with their work on the basis of the submissions made to them and do not feel in any way that they are being hidebound by the views of either the Scottish Government or the United Kingdom Government.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, one of the more unfortunate developments in Scotland over the last two years has been the headlong rush to discuss more powers for the Scottish Parliament before discussing what to do with the additional powers in the 2012 Act. But given that situation, it is now vital that we have a sustainable settlement for the longer term. That will need all five parties to move from their current positions and the new commission to agree on the basis of principle. Have the Government set as an objective for the commission a sustainable, long-term settlement for tax powers in Scotland that will then allow the parties to get on and talk about what to do with the powers rather than about how many powers they have?

[Lord Wallace of Tankerness]

I thoroughly agree with the noble Lord with regard to the importance of the use of the powers. I like to think that the Administration of which he and I were part made very good use of our powers. That is important. It is also important that that is sustainable in the longer term to ensure not only that Scotland’s place within the United Kingdom is maintained but that it will be a balanced settlement, which we are ultimately striving for, that is fair to people in England, Wales and Northern Ireland.

[Lord Trimble (Con)]

My Lords, how within the commission will there be a provision to enable the British national interest to be reflected?

[Lord Wallace of Tankerness]

My Lords, as I indicated to the noble Lord, Lord McConnell, any agreement must be sustainable for the longer term and fair to other parts of the United Kingdom. I do not want to be tempted down the road of second-guessing the Smith commission but I have made it very clear that the one principle that cannot be challenged is that the people of Scotland voted to remain part of the United Kingdom. That principle must be upheld in any proposals that the commission comes forward with.

[Lord McAvoy (Lab)]

My Lords, as the Minister said, we should not second-guess the Smith commission. The details will come. However, does he agree that all parties must enter the process in good faith and want a conclusion to the process that respects the result of the referendum, which was decisive, and is in the best interest of the people of Scotland?

[Lord Wallace of Tankerness]

My Lords, obviously everyone wants the outcome to be consistent with the referendum outcome and in the interests of the people of Scotland. The noble Lord, Lord Smith, has already met the individual parties and said that he believes there is a will among them to reach agreement. I hope so and that it will be done in good faith.

[Lord Grocott (Lab)]

Was the Minister actually saying, in answer to an earlier question, that while it would be fine to create two categories of MP by withdrawing voting rights on certain matters from MPs from Scotland, there would be no question whatever of having two categories of Peer—a matter in which he would have a direct interest? That sounds to me suspiciously like wanting to have your cake and eat it. Surely, the only way that one can sustain a position of equality across the United Kingdom is to say no to any suggestion that there should be two categories of voting rights, either for MPs in the House of Commons or Peers here. Starting to have two categories of Member would be to take a very dangerous route towards the break-up of the United Kingdom.

[Lord Wallace of Tankerness]

My Lords, I think I was answering very directly the question asked by the noble Lord, Lord Palmer. I made the self-evident point that there was a difference between people elected to represent a territorial part of the country and Peers of the United Kingdom. However, the so-called West Lothian question is a live issue that has been around for far longer than even Mr Tam Dalyell. A number of proposals have been put forward, including comprehensive proposals from the McKay commission. I know that my right honourable friend Kenneth Clarke chaired a commission for the Conservative Party, and my right honourable friend David Laws has put forward ideas on behalf of my own party. It is important that these issues are addressed. The Prime Minister set up a committee under the chairmanship of William Hague to look at this issue, among other things, and I very much hope that it can proceed on a cross-party basis, if possible.

[Lord Cormack (Con)]

My Lords, is it not important that Mr Hague’s committee does not come to premature conclusions? What the noble Lord, Lord Grocott, said about categories of Members of Parliament and of this House is exactly right. What is at risk is the future unity of the United Kingdom, and any short-cut solution on the basis of the glib “English votes for English laws” will not necessarily safeguard the long-term interests of this country.

[Lord Wallace of Tankerness]

My Lords, I think that I am on safe ground in otherwise difficult territory in saying that the one thing that everyone is united upon is the importance of the United Kingdom. Proposals on any part of constitutional reform must be looked at on the basis of whether they will sustain the United Kingdom. There would be no point, having gone through the trauma of a referendum and having established Scotland’s place and integrity within the United Kingdom, going about constitutional proposals that start unpicking the ties that bind us.

NHS: Health and Social Care Act 2012 Reforms

Wednesday 22nd October 2014 Lords Chamber

Question

15:29

Asked by

[Lord Brooke of Alverthorpe]

To ask Her Majesty’s Government what is their assessment of the impact on National Health Service funds of the reforms introduced under the Health and Social Care Act 2012.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, this Government have taken tough decisions to increase the NHS budget by £12.7 billion between 2010-11 and 2014-15. During this period, the Government’s NHS reforms will enable total administration costs to reduce by one-third in real terms, to release funding to NHS front-line services. Already, savings arising from the reforms released £1.5 billion last year and £1 billion in 2012-13 to front-line services.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, did the Minister read, as I did, the headline “NHS reforms our worst mistake, Tories admit” in the Times last week? This was part of a devastating series of articles analysing what had happened to the 2012 reforms, along with the costs which had accrued or the savings which had failed to be achieved but could have been if the Government had not been diverted by the reforms. Who will be held responsible for this devastating and monumental failure in policy? It has been very costly to the country, especially at a time of austerity.

[Earl Howe]

First, let me make it clear that the Government have no regrets whatever about the NHS reforms. These reforms enabled massive savings to be made, all of which have been ploughed into the front line. Without investment in the cost of the reforms—which I concede were considerable—we would not have been able to realise these savings, nor would the NHS have been able to plough those savings back into the front line. This has enabled us to employ more than 7,700 extra doctors, and the NHS is now performing more than 850,000 more operations every year. That is the benefit of the reforms.

[Lord Patel of Bradford (Lab)]

My Lords, if there is so much investment being put into the NHS, as the Minister said, why are mental health services being cut across the country and especially in the north of England? In my own city of Bradford, our mental health care service has been cut by 23%. How do we expect mental health care to have parity of esteem when it is experiencing these kinds of cuts?

[Earl Howe]

The noble Lord raises a very important issue, which results from the fact that commissioning decisions are taken not by the Government but by clinical commissioners across the service. We are very concerned by the reports of lower resources being channelled into mental health services. A lot of work is going on, in my department and in NHS England, to make sure that those services—and, crucially, the outcomes from those services—are maintained.

[Baroness Masham of Ilton (CB)]

My Lords, how much was paid out in redundancy to health service staff who lost their jobs and were then taken on again? Is the Minister aware that emergency medicine and accident and emergency departments are really overstretched?

[Earl Howe]

The noble Baroness asks two questions. We had to abide by the terms of the contracts of employment which were put in place by the previous Administration. In some cases, people were made redundant and were then re-employed by the health service at a later date. No one can take satisfaction from that, which is why we are completely revisiting the terms of those contracts. As regards accident and emergency departments, we know that the NHS is under pressure, but there are now more accident and emergency doctors than there were in 2010. The work being done by Sir Bruce Keogh to look at the system across the piece will, we trust, address a number of the pressures that the NHS is now experiencing.

[Baroness Barker (LD)]

The Minister will know that health commentators usually assess the annual increase in health spending at 4%. In view of that, does he agree that the sustainability of the NHS rests largely on its integration with social care? Does the Minister also agree that this issue should be addressed in the forthcoming Autumn Statement?

[Earl Howe]

I agree with my noble friend that the integration of health and social care services has a major part to play in making the system more efficient across the piece and more effective for the patient. That is why we are introducing the better care fund, which, at a local level, will channel at least £3.8 billion into pooled budgets to deliver that integration.

[Lord Harris of Haringey (Lab)]

My Lords, if the system is quite as wonderful as the noble Earl suggests, will he explain why so many people are waiting so much longer in accident and emergency departments and why so many young doctors completing their GP training decide to leave the country and practise overseas rather than participate in the grotesque mess that this Government have produced?

[Earl Howe]

I take issue with the phrase “grotesque mess”. If the noble Lord cares to look at the figures, he will see that waiting times are low and stable, MRSA and C. diff infections are at record lows, mixed-sex wards are down by 98% and the number of people waiting a long time for treatment is massively reduced. Yes, we know that many A&E departments are under pressure but many are coping. The work that we are doing, including channelling more money into the system for this winter, should, we hope, relieve the worst of the problems.

[Lord Patel (CB)]

Now that general practitioners will have incentives to diagnose dementia, will it lead to a better and more accurate diagnosis? Will it increase the number of people diagnosed with dementia or will it increase the number of people falsely diagnosed with dementia? Let us remember that there is no cure or treatment for any of them.

[Earl Howe]

My Lords, the noble Lord, in his ingenious way, is deviating slightly from the Question on the Order Paper which refers to the costs of the reforms. We are in dialogue with the medical profession to ensure that none of those perverse consequences happens.

[Lord Hunt of Kings Heath (Lab)]

My Lords, let us come back to the Question, which is about funding. If the picture was so rosy, why is it that a record number of NHS trusts and NHS foundation trusts are in deficit? If the picture was so rosy, what does the Minister have to say about the report a couple of weeks ago by the Nuffield Trust? It states:

“Prompt access to services has declined … In mental health services, demand”,

is,

“outstripping capacity for urgent care and for younger people. The wellbeing of frontline staff in both health and social care is”,

deteriorating. When he says that the Government are not ashamed of what they did, who is he speaking for? Is he really speaking for the Prime Minister and the leadership of his party?

[Earl Howe]

I am indeed and the NHS is under pressure for the reason that the noble Lord has just quoted—demand has risen dramatically. However, productivity has also risen dramatically, which it failed to do under the previous Administration.

Ebola

Wednesday 22nd October 2014 Lords Chamber

Question

15:38

Asked by

[Lord Alton of Liverpool]

To ask Her Majesty’s Government what is their assessment of the international response to Ebola.

[Baroness Northover (LD)]

My Lords, the UK has been at the forefront of responding to the Ebola outbreak. We are leading the international response in Sierra Leone with more than £125 million in assistance committed already. We are urging our international partners to scale up their support for the worst-affected nations and to contribute to the UN trust fund.

[Lord Alton of Liverpool (CB)]

My Lords, in the light of disclosure that the Swedish furniture manufacturer, IKEA, has provided more funds than Spain, Luxembourg and Norway combined in responding to the Ebola crisis, will the Minister tell us what response the Prime Minister has had from the letter that he sent to 27 European leaders last week asking them to increase their contribution to match that of the generous response of the United Kingdom? Will the Government raise with the international community the possibility of providing hospital ships to relieve the acute shortage of beds in west Africa? Will the brave British personnel risking their lives routinely every day be flown home for treatment should they be unfortunate enough to contract the virus?

[Baroness Northover]

The Government are extremely active at the moment in seeking assistance internationally. The European Council is coming up and the Prime Minister will attend. He has sought €1 billion from European countries. All embassies across Europe are very active in seeking funds for this extremely important and pressing crisis. The key thing about hospital ships is to make sure that there is capacity in Sierra Leone rather than seeing capacity as being offshore. In terms of being flown home, as my noble friend Lord Howe said the other day, sometimes it is not in the best interests of a patient to be flown home. The important thing is to make sure that if we have medical staff working there they are supported there if that is judged to be clinically the most effective way to look after them.

[Lord Chidgey (LD)]

My Lords, living and working in the remote forest regions along the border of Sierra Leone, Liberia and Guinea is difficult enough in itself—without electricity, without any form of healthcare and without clean water. Adding the problems of trying to deal with Ebola creates a really difficult situation for these people. As a lead aid nation, has the United Kingdom ensured that it is securing support from local workers from all the distinct linguistic groups, reaching into the remotest communities in these areas? How is the United Kingdom responding to the efforts and offers of President John Dramani Mahama to make Ghana the regional base in west Africa in the international campaign to defeat Ebola?

[Baroness Northover]

The UK is supporting the training of many local workers. That is key, not only in Sierra Leone but in the other countries. UNMEER, which is the United Nations organisation set up to co-ordinate efforts across all the countries, including ones which are not affected at the moment, will have to be extremely vigilant. It is acutely aware of the need to make sure that health workers are in place in those countries.

[Lord Soley (Lab)]

My Lords, has the Minister seen the report of the House of Lords Select Committee on Intergovernmental Organisations in 2008 and the Government’s response in Command Paper 7475 dealing with infectious diseases and the threat to the world? Two of its recommendations dealt with the inability of the WHO to have the proper structure necessary—mainly because of some of the supporting countries—and with the all important issue of developing health services within those countries. If she has not seen that report and the Command Paper issued by the Government, will she look at it because many of its recommendations are still relevant and not all of them have been carried out?

[Baroness Northover]

There was indeed a report and it had very sensible recommendations. When we finally get past this crisis, which I hope will be relatively soon—but who knows?—it is extremely likely that many lessons will be learnt as to how the international community and nations play their part in dealing with crises like this. We have many lessons to learn.

[Lord Walton of Detchant (CB)]

My Lords, is the Minister aware of any research on the availability of serum derived from blood samples from individuals who have survived the Ebola infection and could such serum be used to confer temporary passive immunity on healthcare workers who have been accidentally exposed to the virus?

[Baroness Northover]

The noble Lord is probably aware that William Pooley, who suffered Ebola and who was treated successfully, has contributed to the treatment of other patients. This is being studied along with pushing forward on vaccine research. There will be a meeting tomorrow of the WHO about that vaccine research. My right honourable friend Oliver Letwin and the Chief Medical Officer will be there.

[Viscount Ridley (Con)]

My Lords, will the Minister ensure that the Government look into the question of why the WHO took eight months to wake up to this epidemic, during which time there appear to have been reassuring noises coming out of local WHO chapters about how this was not a huge problem? Will the Government ensure that serious lessons are learnt about this?

[Baroness Northover]

I am sure that there are serious lessons to be learnt. We are fortunate to have international organisations but we need to make sure that we strengthen and improve them in the future.

[Baroness Kinnock of Holyhead (Lab)]

My Lords, can the Minister give us some information about the thousands of children who have been orphaned by Ebola in the affected countries? Families and friends are now too frightened to take them in when they are in such need. Are those children being properly identified and what is being done to give them care, counselling and support in the misery that they are now suffering?

[Baroness Northover]

We are acutely aware of that, as is the international community. The noble Baroness will know that UNICEF and Save the Children are also flagging up this enormously challenging situation.

Foreign National Offenders

Wednesday 22nd October 2014 Lords Chamber

Statement

15:45

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given earlier today by my right honourable friend the Home Secretary to an Urgent Question on foreign national offenders. The Statement is as follows:

“I am grateful to the National Audit Office for its report on managing and removing foreign national offenders. As the report makes clear, this is a problem which has beset successive Governments. Let me begin by being clear that foreign nationals who abuse our hospitality by committing crime in this country should be in no doubt of our determination to remove them from it. We removed more than 5,000 foreign criminals from the UK last year and we have removed 22,000 since 2010. I also want to make it plain that, as in so many other areas, it falls to this Government to tackle the problems of the past. Quite simply, the Home Office did not prioritise the removal of foreign national offenders before 2005.

It will take time to fix the problems we inherited. Chief among them, as the NAO report makes clear, are the legal barriers we face. The countless appeals and re-appeals which have been lodged by criminals attempting to cheat the system cost us all money and are an affront to British justice. That is why we passed the Immigration Act to clamp down on such abuse. New powers from that Act came into force this week to cut the number of grounds on which criminals can appeal their deportation from 17 to four and to end the appeals conveyor belt in the courts. From this week, criminals can no longer appeal against a decision that their deportation is conducive to the public good.

These reforms build on other measures we introduced in the summer which are already speeding up the deportation process. In July, we introduced new powers to stop criminals using family life arguments to delay their deportation. We have also changed the law so that, where there is no risk of serious irreversible harm, foreign criminals will be deported first and have their appeal heard later. For those that do have an appeal right, they will be able to appeal only once. These new powers are radically reforming the deportation process by rebalancing human rights law in favour of the British public rather than the criminal.

We are also pursuing joint working between the police and Immigration Enforcement. Operation Nexus has helped us remove more than 2,500 foreign nationals during its first two years, including 150 dangerous immigration offenders considered by the police to represent a particularly serious threat. Alongside tougher crime-fighting measures, improved protection at the border and greater collaboration between the police and immigration enforcement officers, the Immigration Act is helping us to deliver an immigration system that is fair to the people of this country and legitimate immigrants and tough on those who flout the rules. The Home Office will look at the NAO’s recommendations carefully and work with the other agencies involved to ensure that we continue to build on that system”.

15:47

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for repeating the Answer. The principle of deporting foreign criminals is one on which we all agree, but the Government need to take responsibility for the mistakes and failures of the system happening now. When the PM said that deporting foreign criminals was a major priority he did not add, “But only in five years’ time after new legislation”. Today we are deporting fewer foreign criminals than in 2010—and more criminals are absconding and the Government have no idea where they are.

The National Audit Office has identified that a third of the failures are due to basic bureaucratic mistakes in the Home Office. In 38% of cases, the forms were not even filled in correctly, and in a number of cases no one bothered to book the flights home. It is clear that we need less rhetoric, greater competence and better management. Given the necessity of European and international co-operation to deal with this problem, what impact does the Minister consider that the Government’s obsession with opting out of EU criminal justice measures has had on tackling it?

15:48

[Lord Bates]

I accept the view of the noble Baroness that the Opposition share our desire to see progress in this area, and the systems have to be robust to deliver that. It was clear that the UK Border Agency, which was introduced by the previous Government, was not delivering the effectiveness we wanted, and that is the reason we now have an Immigration Enforcement command with search teams that go out looking for people who abscond. It is also why the Human Rights Act, which forms the basis of many of the appeals and re-appeals, has been built upon by the Immigration Act. It now narrows down the number of routes for appeal from 17 to four. Of course, these measures have all taken time to come into effect, but as the NAO reports in its opening summary, over the past two years—since these measures have come in—the number of deportations is once again increasing, so they are beginning to have an effect. That is not to suggest any complacency whatever. We need to make sure that we continue to build on the measures so as to keep the British public safe.

15:49

[Lord Paddick (LD)]

My Lords, the Liberal Democrats want a fair immigration policy; clearly, we believe that foreign criminals who should be deported should not remain in this country. Will the Minister say how many of these dangerous foreign criminals are at large as a result of multiple appeals against deportation, and how many are at large due to Home Office incompetence?

[Lord Bates]

My Lords, my noble friend, of course, has great expertise in this area and will know that the basis on which we collect data is not quite as finely siloed as that. We recognise that there is a major problem here: it is a cause for public concern and it needs to be addressed. The measures that we are putting forward—to reduce and replace the appeal/re-appeal conveyor belt, by which many of these prisoners are attempting to work the system; and to ensure that we have better information at the point of entry into this country by signing up to the Schengen information system and the European Criminal Records Information System—are the approach that we should emphasise.

[Lord Ramsbotham (CB)]

My Lords, in 1999, as Chief Inspector of Prisons, I recommended that anyone who was ordered deportation as part of a sentence should have that deportation processed while they were in prison, starting on the day that they arrived there, so that on the day that they finished their sentence they went straight to the air field and out. That is what is practised in other places such as the UAE, as I saw. If they can do it, why can we not? When are we going to start acting properly? Furthermore, there is also a practice of sending people who are sentenced to deportation to immigration detention centres at the end of their sentence. That is precisely where they should not be, because they infect the people in the immigration centre with the wrong ideas, having been in prison.

[Lord Bates]

The noble Lord puts his finger on a very pertinent point. One of the problems is that, through the immigration appeals process, hearing a case in the immigration tribunals can actually be longer than the sentence. Therefore, the prisoners can sometimes be released; they are released on bail in certain circumstances. We have to be very careful of that. One of the provisions in the new Immigration Act is the ability to be able to say, “The appeal process does not take place in the UK. It should actually take place in the country from which they came”. That is a positive step forward, along the lines that he suggested.

[Lord Dholakia (LD)]

My Lords, we have bilateral arrangements with a number of countries about prison transfers. Is it not possible to look again at these arrangements to make sure that foreign nationals serve their sentences in the country of their origin, thus relieving pressure on resources and staffing in the United Kingdom?

[Lord Bates]

My Lords, my noble friend makes an important point. We are now taking part in the European prisoner transfer agreement; it relies on the country being willing to take the offender back into the prison system. There is another element to consider, in relation to non-EU countries: we need to make sure that the prisoner will actually serve in that country the sentence handed down to them and that they will not be allowed out early, as has happened in some countries when prisoners have been returned.

[Lord Richard (Lab)]

Will the Minister help me on one point? Could he emphasise a little more clearly than he has done that it is firmly the policy of the Government to re-enter—that they now wish to go back into—the 44 matters that they opted out of from the 144 on the original list for opting out? Things like the Schengen information exchange and the European arrest warrant are fundamental to the operation of any sensible system as far as deporting foreign criminals is concerned.

[Lord Bates]

I hear that. The Government will make their announcements in due course. Of course, just because we are not part of the Schengen agreement in terms of the movement of people does not mean that we cannot share information. That will be helpful not only to this country but to the countries in the Schengen area.

[Lord Harris of Haringey (Lab)]

My Lords, my noble friend Lady Smith told us that on occasion people have not been deported because the airline tickets have not been booked. Will the Minister tell us how many cases of that have taken place, and whose responsibility should it be to book those tickets?

[Lord Bates]

I think that the figure was taken from a couple of case studies mentioned in the NAO report; they are not actually grouped. But we absolutely recognise that there needs to be better co-ordination across government and that is why we now have a cross-government team that comes under the National Security Council taking this issue seriously, taking it forward and introducing the measures that we have put forward.

[Lord Martin of Springburn (CB)]

My Lords, when I served as a Member of Parliament, I had a large proportion of asylum seekers in my constituency of Glasgow Springburn. What would happen was that the asylum seeker would say, “I seek asylum” and therefore they were looked at. Can I get the assurance that when asylum seekers are seeking asylum, they are checked to see whether they have been serious offenders in their previous country?

[Lord Bates]

That is certainly the intention and the process. If I may, to make absolutely sure that I have given the noble Lord the accurate information, I will check on that and write to him. But that is certainly the case and nothing we are putting forward at present will mean that the genuine asylum seeker who is at risk of serious and irreversible harm will be deported while their case is being heard.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, if the Minister is unable to answer the question posed by my noble friend, will he please write and put a copy in the Library? We need to know accurately how many people were involved.

[Lord Bates]

We will certainly make investigations into that and get the information required, and do as the noble Baroness suggests.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister, who has been very helpful in his answers. But the point that I made in my original question, and was made by the noble Lord, Lord Richard, was about the Schengen information system that the Minister himself referred to as being important and the fact that the Government have not signed up to that; we have been having a debate about opt-in, opt-out again. I repeat the question: does the Minister consider that the Government’s obsession with opting out of EU criminal justice measures has had an impact on tackling this problem, particularly in relation to the Schengen information system that he referred to?

[Lord Bates]

I do not accept that that is the case. We are already, and have been for some time, part of the European criminal information system, which carries a lot of information; in fact, the UK is one of the heaviest users of that system. We now want to strengthen it further and it seems a very sensible step to be part of the Schengen information system as well.

Hereditary Peers By-Election

Wednesday 22nd October 2014 Lords Chamber

Announcement

15:58

The Clerk of the Parliaments announced the result of the by-election to elect a hereditary Peer in the place of Lord Methuen in accordance with Standing Order 10.

Two hundred and eighty-three Lords completed valid ballot papers. A paper setting out the complete results is available in the Printed Paper Office and the Library. That paper gives the number of votes cast for each candidate. The successful candidate was the Earl of Oxford and Asquith.

Criminal Justice and Courts Bill

Wednesday 22nd October 2014 Lords Chamber

Report (2nd Day)

15:58

Clause 32: Secure colleges and other places for detention of young offenders etc

Amendment 107

Moved by

[Lord Beecham]

107: Clause 32, page 30, line 42, at end insert—
“(d) secure children’s homes.”

[Lord Beecham (Lab)]

My Lords, this amendment is an appetiser for the main course that awaits us in the form of secure colleges, about which we will hear a good deal.

Secure children’s homes care for some of the most damaged children, necessitating intensive and, it has to be said, expensive care. The numbers have been reduced in recent years. There are now 138 places in secure children’s homes. In Committee, I suggested adding them to the facilities that might be provided by the Secretary of State alongside existing young offender institutions and secure training colleges and the secure colleges that the Bill seeks to establish.

In his reply, the Minister explained the failure to include secure children’s homes, on the list, on the basis that local authorities had the power to provide such homes, and the Secretary of State does not and never has had that power. He went on to say that it is for local authorities to provide sufficient places as are required in secure children’s homes, and we think it right that they retain responsibility for this.

However, the amendment does not require the Secretary of State to provide secure children’s homes; it gives him the power to do so. In any event, it is surely desirable that such provision is seen as part of a range of different facilities. Given the pressure on local authority budgets and the concerns that secure colleges, if they are to be included under this legislation, might reduce the demand for such places, it is surely reasonable for the Secretary of State to have some involvement—potential, if not immediately actual—with this part of what should be seen as essentially one service aimed at providing for these children of varying degrees of vulnerability and difficulty, albeit in different ways.

I hope the noble Lord will acknowledge that this is meant to be a constructive amendment, which does not impose a duty but opens up the possibility of having a whole-system approach to this group of young people. I beg to move.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this has been a short debate about the place of secure children’s homes in the youth custodial estate. As the noble Lord, Lord Beecham, said, it is something of an appetiser for what I know is to come during the course of this afternoon and evening.

I recognise on behalf of the Government that much good work is done in secure children’s homes, and that they often accommodate some of the most vulnerable young people in custody. The Government are clear that we will continue to provide separate specialist accommodation for those who need it. We have also made clear that, while we believe the secure college model could cater for the majority of young people in custody—that is, a secure college rather than a secure children’s home—it will not be suitable for 10 and 11 year-olds or for some young people with the most acute needs or vulnerability.

This year, we have demonstrated our commitment by continuing to provide places in secure children’s homes by entering new contracts with nine homes to provide 138 places. I know that many noble Lords will have observed the decline in the number of places in secure children’s homes that the Government contract, but that, as was acknowledged on Monday in your Lordships’ House, reflects a substantial and welcome reduction in the number of young people in custody overall in recent years.

The current arrangement is that the Secretary of State may provide places in young offender institutions and secure training centres; the Bill seeks to give him the power also to provide secure colleges. In addition, he has the ability to enter into contracts for the provision of youth detention accommodation in secure children’s homes. Amendment 107 would change this by giving the Secretary of State the power to provide secure children’s homes directly. The power to provide these homes rests with local authorities, not the Secretary of State, and we think it right that this should remain the position. Secure children’s homes are created by different legislation with the purpose of ensuring that there is provision for children whose welfare needs are so acute that a court decides they must be accommodated securely. Meeting the needs of this particular group of children is the important distinction between secure children’s homes and other forms of custodial provision.

The Secretary of State has a duty to ensure that there are sufficient places in youth detention accommodation for young people remanded in or sentenced to custody, and in discharging this duty he continues to contract places in secure children’s homes for those young people who require them. We think that that is the right arrangement, rather than the Secretary of State providing secure children’s homes, which are intended to serve a greater purpose than simply accommodating convicted or remanded young people.

I recognise the concern about the future of secure children’s homes and we will no doubt come back to that when we consider the substantial group of amendments that follows this debate. The Government are clear that there continues to be a place for them in the youth custodial estate, but we consider that the position is adequately catered for by the current arrangements. Therefore, I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Beecham]

My Lords, as I hinted when moving the amendment, I shall not divide the House on this issue. However, the Minister overlooks a key element in the case that I put, which is that local authority budgets are extremely hard pressed and it will be increasingly difficult for them to sustain the level of investment needed in this provision. Having said that, I shall not press the amendment, but I invite the Government, or perhaps the Minister, to talk to the Department for Education and the Department for Communities and Local Government about the financial implications of continuing provision in, I think, only nine local authority areas now, for which funding is under great pressure. I beg leave to withdraw the amendment.

Amendment 107 withdrawn.

Amendment 108

Moved by

[Lord Ramsbotham]

108: Clause 32, page 31, line 2, at end insert—
“( ) No secure college may be established until comprehensive rules on the operation of secure colleges, including the use of force and the treatment of young persons with mental or physical health needs, have been made under section 52(2ZA).”

[Lord Ramsbotham (CB)]

My Lords, I shall speak also to Amendments 111 and 121.

Last Thursday, the noble Baroness, Lady Tyler, initiated a debate to take note of Her Majesty’s Government’s social justice strategy in which I quoted the words of the Secretary of State for Work and Pensions, Iain Duncan Smith, who, in launching the strategy in 2012, said that social policy could not be conducted in discrete parts, with different parts of government working on discrete issues in isolation. A strategy had to have a fundamental vision and driving ethos, without which it would be narrow, reactive and unworkable. As a result, a Cabinet committee has apparently been set up to ensure that all government departments drive forward the aims of the strategy. I say “apparently”, because I can find no evidence that it has passed judgment on the proposal in respect of a secure college that is the subject of my amendments.

Mr Duncan Smith listed five principles of the strategy: a focus on prevention and early intervention; concentration on recovery and independence, not maintenance; promoting work as the most effective route out of poverty; most effective solutions being designed and delivered at local level; and intervention providing a fair deal for the taxpayer. He also listed a number of key indicators of success or failure, of which number 3 is a reduction in the number of young offenders who go on to reoffend.

On 11 March this year, I tabled a sunrise amendment similar to Amendment 108, asking that implementation of the Secretary of State for Justice’s proposals for probation reform, which appeared to be being rushed through before they had been properly thought through, be conditional on the proposals being laid before and approved by both Houses of Parliament. The Minister, as befitting an advocate of his distinction, bravely defended the Government’s position, convincing the House that contract management of transparent reforms, which were not being rushed, was secure. As the Minister knows, all is not currently well with the now delayed reforms for a variety of reasons, many of which were raised in this House and of which I could list a number but do not have time to do so.

Yet again, Parliament is being asked by the Secretary of State for Justice to rubber-stamp a rushed and un-thought-through discrete proposal whose intent I and many others support but whose details remain shrouded in mystery. This time, he also appears to be in defiance of the Government’s social justice strategy. I hope that he noted the almost total opposition to his proposal by anyone who has any knowledge of the practicalities of dealing with young offenders and how they respond to youth custody, expressed in a letter to the Daily Telegraph signed by 29 such people last Monday. I understand that some of them were summoned to a meeting with Ministers last night, it being made abundantly clear to the five who were able to attend that the Government were not prepared to give one inch to their concerns.

On the one hand, we have a Secretary of State with no experience of the management of young offenders claiming that he can improve the dreadful track record of the current system, on which I reported adversely many times as Chief Inspector of Prisons, by providing young offenders with better opportunities, particularly in education, at less cost because of the economies of scale on a large site which is a young offender institution by another name. On the other hand, we have experienced experts saying that his proposals are bad for children, bad for justice, and bad for the taxpayer. Both cannot be right.

Noble Lords will no doubt remember that in “Henry IV, Part Two”, as Henry IV lies dying with the crown beside him on his pillow, Henry IV takes and tries it on in an adjoining room, being berated by his father with the words:

“Thy wish was father, Harry, to the thought”.

In this case, I feel that “wing and prayer” is more appropriate than “thought”, because, far from having a coherent and costed plan, which bidders are expected to deliver for a stated and realistic fee, the Secretary of State is hoping that inexperienced providers will come up with cost-saving innovations that experienced ones, both private and public, have tried and failed to find over many years. The winning bid, in a large institution, rejected as impractical by the rest of the world, will then be adopted as secure college policy. No business would dare to operate like that, or it would very soon be out of business.

We have already had deep discussion of this in Committee, which I do not intend to repeat. However, I shall repeat, and ask the House to reflect on, some statements that have been made by the Minister and others since then. There is an added urgency to my Amendments 111 and 118, which seek that further development of the secure college proposal should be put on hold until the draft of the secure college rules instrument have been laid before and approved by both Houses of Parliament. Only last Thursday, the Secretary of State, in launching a consultation on the rules for his pet secure college project, which closes on 27 November, announced that he intended the Bill to receive Royal Assent before the end of the year, two months before the Government are required by statute to publish the consultation response. In other words, he appears hell-bent on bulldozing through proposals, which will be binding on successive Governments for the next 10 years, without parliamentary approval and before the election. What is extraordinary is that, with presumed assent only a few weeks away, he says in the consultation document that no decisions have yet been made about who will be accommodated in the secure college.

For heaven’s sake, how can you possibly make or cost any realistic plans, if you do not know for whom you are making them? This smacks to me of contempt of Parliament, which will, quite rightly, be held to blame by the public, if something that it has approved fails to provide, or proves to cost more than forecast, which this proposal undoubtedly will. Bearing in mind that it will be held to blame, Parliament has not only a right but a duty on its own behalf and that of the taxpayer to ask the Secretary of State for proof of how he can deliver or justify the following claims and statements, before vast sums of money are committed, over 10 years, against all the evidence and advice that has been given to him. He has said that secure colleges are,

“a new form of youth detention accommodation with innovative education provision at its core which will equip young offenders with the skills, qualifications and self-discipline they need to turn away from crime”.

How do you do self-discipline? It has also been stated that,

“secure colleges must deliver a full and quality curriculum that motivates and challenges all young people”.—[Official Report, 21/7/14; col. 1034.]

There is no argument at all with the intent but there is a question mark over the practicality. It has been stated:

“The Government’s vision is that young people will receive a full day of education and training, rehabilitative intervention and enrichment activity, with sufficient flexibility to respond to the individual needs of young people”,

and that,

“secure colleges … will foster a culture of educational development and provide enhanced rehabilitation services while also achieving savings”.—[Official Report, 23/7/14; col. 1187.]

You do not deliver all those activities without people, and people cost money. Another statement claims:

“It is the Government’s view that setting out information about individual training courses and the standard to be reached in respect of such courses in secondary legislation is not appropriate.”—[Official Report, 21/7/14; col. 1036.]

Why on earth not?

“We are confident that the operating cost of the pathfinder will be lower than £100,000 per year, but the exact cost will be determined by competition”.

Surely the exact cost is determined by the provision and what you want.

“We believe that it is right to focus on the educational outcomes that the establishment achieves rather than the staff it employs”.

I have to say that I found that last statement really awful.

16:15

At the other end of the educational ability spectrum, is there any indication that at last the Ministry of Justice will accept the offer of masterclasses for the few very bright inmates, provided by Tomorrow’s Achievers, about which there has been a deafening silence since they were first offered in 1999?

Regarding the use of restraint, I note that the comprehensive list of conditions listed by the noble Lord, Lord Marks, in Amendment 120A, specifically, and thankfully, excludes any mention of “good order and discipline”, which anyway is banned by the ruling of the Supreme Court. My Amendment 121 is in accord with the recommendation of the Joint Committee on Human Rights, which I recommend as being both simple and clear.

I know that the Secretary of State does not put the interests of staff as high on his list as educational outcomes, but I could not disagree with him more. As countless governors and staff of YOIs and other places of detention know only too well, their selection, training and support is the most crucial factor in any establishment. What is interesting to me is that all the most successful establishments, such as those run by Diagrama in Spain, which I described in Committee, and Orchard Lodge, the secure children’s home containing children with severe mental problems that when run by Southwark Council presented limited use of seclusion by staff whose average length of service was 11 years, staff must know, and be trained and regularly assessed in, any skills that they are allowed to use.

When I met the Minister for Prisons recently, I reminded him that the special hospitals and others, including the police, had rejected Prison Service restraint training because its techniques were not suitable for either patients or children. I hope that the National Health Service will be consulted over this and staff left in no doubt as to what is appropriate and when, as soldiers were in Northern Ireland with the yellow card for opening fire.

I could go on and on but I will not. I am asking the House whether it is satisfied that the persuasive generalisations offered by the Government are backed up by sufficient evidence to allow it to agree that the Secretary of State for Justice may proceed with his expensive, uncosted and unproven assertions, and that he can revolutionise one part of the youth justice system—namely, the custody of 320 of the most damaged, vulnerable and challenging young offenders—at less cost than that for which they are now confined, in defiance of all the known facts about dealing with and caring for these young people. Or does the House think, like me, that this proposal should not necessarily be cancelled but should be parked so that it can be examined in the context of improving the whole youth justice system against all other necessary improvements, including the question of diversion, work in the community and the all-important transferring back into the community? The Secretary of State appears to be unwilling to commission the research that would, for example, give him a set of criteria against which he could judge individual bids to deliver a special contract, but I thought that parliamentary scrutiny was what parliamentary democracy was all about. In that spirit, and in appealing to all the parents, grandparents, uncles and aunts on the political Benches, I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my Amendments 120A and 120B in this group both concern the use of force in secure colleges. Amendment 120B would delete paragraph 10 of Schedule 6 which provides—I say iniquitously—that:

“If authorised to do so by secure college rules, a secure college custody officer may use reasonable force … in carrying out functions”,

which include ensuring good order and discipline on the part of young offenders in custody and attending to their well-being. Amendment 120A would introduce restrictions on the use of force which accord with good practice, with the civilised treatment of young persons in custody and with the European Convention on Human Rights. Furthermore, my amendment accords very closely with the principles set out in the Government’s consultation paper published last week on the proposed secure college rules.

The authorisation of the use of force for the purpose of ensuring good order and discipline—said in the consultation paper to be clarified or modified by the proposed secure college rules—has been the subject of a judgment against the Government in the Court of Appeal in the case of C v Secretary of State for Justice 2008 concerning secure training centres. The clear view of the Joint Committee on Human Rights in relation to the Bill is that provisions authorising the use of force for the purpose of ensuring good order and discipline should be deleted. Those words can go without affecting the implementation of proposals for the sensible and modified use of force, suggested in the consultation paper. What is proposed is not a clarification but a departure—and if it is a departure, good order and discipline should disappear from the legislation altogether.

It is not right for the Government to say that merely because the use of force is authorised by the statute, as circumscribed by the rules, it would be appropriate for the legislation to authorise force for the purpose of enforcing good order and discipline. I believe that the correct conditions for the use of force should be plain in the Bill. There is no reason for not limiting the authorisation in the Bill to accord with what is appropriate. There should be no chance of any misunderstanding or misconception of what is and is not authorised and no internal inconsistency, apparent or real, between the primary and secondary legislation. The Joint Committee on Human Rights considered the Government’s case that there was a distinction to be drawn between the requirements for the Bill and those for the rules—and it rejected it.

On a practical note, as the noble Lord, Lord Ramsbotham, pointed out, the Government’s consultation paper on the secure college rules has only just been released. The Government’s response to the consultation cannot possibly come before Royal Assent for the Bill. That means that unless the Bill is clear about the restrictions that should be imposed on the use of force, the secondary legislation may not properly reflect the will of Parliament, even allowing for the affirmative resolution procedure being applicable to the rules—if it is.

My amendment would make the position clear. The first three purposes for the use of force are uncontroversial. They are to prevent injury to the young person concerned, to prevent injury to others and to prevent serious damage to property. The limitations on the use of force, as contained in the second to fifth conditions of my amendment, are also uncontroversial and in accordance with best practice. They are that force must be used as a last resort only, that the force authorised must be the minimum necessary to achieve its purpose, that it must be applied for the minimum duration necessary to achieve that purpose and that the techniques used should be in accordance with an approved system of restraint. Furthermore, it is important that all those authorised to use force should be properly trained in its application and in techniques of minimum restraint.

However, since Committee, and in the light of the publication of the consultation paper, I have been convinced by the two so-called “scenarios” set out in the consultation paper that there may be a need for force to be authorised also to maintain a safe and stable environment, subject to extra conditions. The first of the two scenarios is where an abusive young person in a secure college disrupts a visiting session for all those in the visiting room, including other detainees, their visitors and families, and simply will not move. The second is where an aggressive young person needs to be moved to protect another young person who is threatened by him, where that other young person is at unusual risk from that aggression. In both these cases I can see that some force may be required to move a detained young person. However, such force as may used in those circumstances—that is, to promote a secure and safe environment—should be limited to circumstances in which a young person poses a risk to the present safety or welfare of another person and should never involve pain-inducing techniques.

These restrictions represent the Government’s view, clearly expressed without reservation in the consultation paper. I simply cannot see why they should not be expressed in the primary legislation, particularly when the secondary legislation will come so late in the day.

The issue of the use of force in secure colleges is serious. We should not forget that in April 2004 at Rainsbrook secure training centre, 15 year-old Gareth Myatt was asphyxiated while being restrained in an approved hold; nor that in August 2004, 14 year-old Adam Rickwood committed suicide at Hassockfield secure training centre after being subject to the so-called “nose distraction technique”. Accordingly, I ask the Government to reconsider their position, to limit the use of force in the Bill in accordance with the principles set out in their consultation paper, and to accept either my amendments or those of the noble Lord, Lord Ramsbotham.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have added my name to three amendments in this group, and will focus particularly on some of the health aspects. The question of how these colleges will be run becomes critical.

In his response to the previous amendment, the Minister said that there would be assessment of those with acute needs and vulnerabilities. I suggest that the health needs are far greater than has previously been estimated. I declare an interest as president of the BMA. Our report Young Lives Behind Bars is due to be published on 4 November. I have had extensive discussions with my successor, Al Aynsley-Green, who was previously the Children’s Commissioner and who looked at length into the management of offending children. He was particularly struck by the smaller units in Spain, and was clearly persuaded that moving children away from their original area of domicile, to which they would eventually return, was potentially quite harmful because of the disruption to the support for their health and well-being.

Children in the offending group generally have a much higher incidence of serious problems. About 12% are known to have been bereaved of a parent or sibling; that is far higher than the incidence among children in the general population. About 60% have significant speech, language and learning difficulties, 20% to 30% are learning disabled and up to 50% have learning difficulties. Put simply, about one in four has an IQ estimated to be below 70 and over a third have a diagnosed mental health disorder. Over a quarter view drugs and alcohol as “essential” to their well-being.

When the House of Commons Justice Committee examined reports on acquired brain injury, which affects around 10% of the general population, it found that it typically affects between 50% and 80% of the offender population. A relatively small 2012 study, covering 179 male offenders, found that 60% reported some form of brain injury and 40% reported a loss of consciousness, which indicates probably quite severe brain injury.

16:30

Can the Minister tell us where is the evidence showing the effectiveness of a short education programme that takes young people with severe trauma, brain injury, learning difficulties and so on away from their own environment? Where is the evidence showing the benefit of moving them away from the area that they have come from and to which they will return, rather than investing in the type of accommodation that has already been found to have improved outcomes for some of these young offenders, where they are in much smaller groupings with very personalised detention, and with a view to trying to reintegrate them into a society which has failed them many times before they started offending?

[Lord Carlile of Berriew (LD)]

My Lords, perhaps I may start with a moment of generosity to my much admired noble friend the Minister. He has addressed the concerns which noble Lords expressed in the past by tabling Amendment 122, which provides for a statutory instrument, subject to the affirmative procedure, to be laid and passed before the rules could be brought into effect. I am sure that we are all grateful for that. However, there are problems with that proposal.

The first problem is that even the affirmative procedure gives limited opportunities to those parliamentarians—and there are many in your Lordships’ House with great relevant experience—who would wish to amend what is contained in the rules, because of course even affirmative resolution procedure instruments are not amendable. It therefore makes the affirmative resolution process a blunt instrument in dealing with these important issues.

I am very concerned about the timetable which has been placed upon us. There is a consultation—to which the noble Lord, Lord Ramsbotham, in his eloquent moving of his amendments, referred—which is to end near the end of November, and the Government’s response will follow two months thereafter. That is way outside the timetable placed on us for this Bill, including today’s debates. It is illogical and quite unnecessary to press a timetable that attempts to force us to reach important decisions today when those decisions might be informed by the consultation and the Government’s response to it. It is not unknown—indeed, it is common in your Lordships’ House—for the consultation process on any important issue to lead to amendment of the primary draft legislation placed before your Lordships. I respectfully entreat my noble friend to look at the consultation as a genuine process, not merely as a symbolic process to confirm what the Government would wish to have decided here today.

It is absolutely essential for us to see at least the shape and flavour of the rules that the Government wish to introduce. On restraint, the consultation document which was published only a few days ago contains one “indicative rule”, as it is described—a sort of suggestion of what might be a relevant rule. That is not a sufficient basis for the provision that we are debating now. Many well informed NGOs—and I declare the interest of having been at one time president of the Howard League, which is one of them—have, with other organisations, declared real misgivings, not so much about what is provided but about what they do not know is being provided. Therefore, in my view, this is all very premature.

We heard earlier from my noble friend Lord Marks the names of Gareth Myatt and Adam Rickwood. Just before I became president of the Howard League I was asked by that organisation to produce a report on the use of restraint on children in custody. That arose following the death of Gareth Myatt. Organisations such as the Howard League, and people who have been fairly intimately involved, do not let a day go by, when we think about these issues, without reflecting on that death. It seems to me that to proceed in this unnecessarily hasty way on a matter of such importance, without reflecting on the rules provided and whether they take into account the events that led to the death of Gareth Myatt, is not the right thing for your Lordships to do.

[The Earl of Listowel (CB)]

My Lords, I support the amendments tabled by my noble friend Lord Ramsbotham about delaying proceedings on this matter to give us more time to consider the detail before anything is put in place. I wish, as always, that I could support the Government because of their tremendous achievement, which must be repeated again and again, in taking 2,000 children out of custody in the past four or five years. Because of their humane achievement in bringing the number down from the all-time high of 3,000 children in custody—a number that was deplored by Members on all sides of your Lordships’ House—to, potentially, only 1,000 by this Christmas, I wish in my heart to support the Government as far as possible. I would also like to support them because the idea of basing an approach on education is, of course, immensely appealing.

There are, however, in these provisions shortcomings that have already been described. My concern is particularly about the risks that young people may experience in such a setting. On a recent visit to a young offender institution—I shall try not to repeat what I said in Committee, but I will repeat this point—I was given the example of 15 young people attacking two. When I first visited a YOI 15 years ago, there might have been three or four people attacking one or two, but with the gang culture now, it is normal—and a great source of worry and consideration to the governor and the prison officers—to have members of different gangs in prison, and to have to think about how to stop large numbers of boys beating up small numbers of boys. That is one aspect of risk.

Because the Government have been so successful in reducing the number of juveniles in the secure estate, we now have only the most troubled and challenging young people there. That may help to explain why it is difficult to reduce the reoffending rate further. It also means that those people are putting each other at greater risk than was the case in the past. Moreover, I learnt in an early experience of speaking to a prison officer that, contrary to expectation, people tend to be more challenging the younger they are, rather than it being the older ones who are most challenging. The older ones seem to have developed some sense of what one does and what one does not do, but the young ones just do not have that sense, so they can be very difficult to manage.

May I take your Lordships back to 1998, and the setting up of the first secure training centre at Medway? Some of your Lordships may remember Lord Williams of Mostyn coming to this House shamefacedly following the riot there, when in the space of just two hours eight or nine 12 to 14 year-olds caused hundreds of thousands of pounds-worth of damage and injured three of the staff. I think—perhaps the noble Lord will correct me if I am wrong—that the main issue was that the quality of staff was not appropriate to the needs of those young people. It had not been thought through beforehand what kind of staffing was necessary to meet their needs. So my noble friend Lord Ramsbotham has a very good point: we as parliamentarians should think extremely carefully about these vulnerable young people, who can be so damaged.

I am reminded of another example which, again, occurred under a previous Administration—namely, the setting up of Yarl’s Wood immigration removal centre. It was established as a secure centre for children and their parents on the plan of a prison; indeed, it was identical to a prison. One could go into the reception area of Yarl’s Wood immigration removal centre and have very much the same experience as going into a prison. A mother with an eight year-old child would have to walk through a barred gate. One has to ask oneself what the child thought of the experience of walking into a prison through a barred gate. Who gave any thought to what it would be like for children to be placed in that setting, run by a prison governor, if I remember correctly, and manned by prison officers? This caused outrage for 10 years.

The former Children’s Commissioner, Professor Aynsley-Green, repeatedly produced reports on this setting and very gradually the environment was ameliorated considerably over time. But how much better it would have been if consideration had been given well beforehand to what the needs of children and families kept in a secure setting would be—infants, eight year-olds, 16 year-olds with their mothers—and whether a prison would be suitable accommodation for them. This issue needs to be given the closest attention and most careful thought because we are talking about some of the most vulnerable young people in our society.

In conclusion, the noble Baroness, Lady Finlay, talked about the health and mental health needs of these young people. Many of them will have experienced the care system. In many cases, before they went into the care system, they experienced repeated trauma throughout their lives, had dysfunctional families and were betrayed by the people they most trusted. There was no help available from within their families and they were very damaged by the time they entered care. In those circumstances it is vital that the proposed setting has a very good team of mental health professionals to support young people and the staff who work with such vulnerable young people. I share others’ misgivings. I wish that I could be more generous towards the Government because I applaud them for what they have achieved elsewhere for these young people. I hope that the House will support my noble friend’s amendment to give us more thinking space.

[Lord Deben (Con)]

My Lords, in my maiden speech I said that one of the things I wanted to concentrate on in this House was social justice. We are talking about what for me is one of the very central issues of social justice—that is, how you deal with those who are most troublesome to society. You can measure a society by how it deals with those who cause it most difficulty.

As a Member of Parliament, I found the visits to the young offender institution in my former constituency among the most troubling that I ever made because you met young men who had never had a chance of any kind whatever in their lives and you recognised that they could so easily have been your own sons. You also recognised how privileged your own children were, not in terms of money or any of the things which are foolishly trotted out by egalitarians, but just by the fact that they were loved.

That leads me to be very worried about any measures which are hurriedly introduced because I think this is a very difficult issue. It is very hard to get these things right. I come back to personal experience. If you bring up children in a loving and secure environment, it is still very hard to get these things right. It is very hard indeed and we all get it wrong. So often we say to ourselves, if we are honest, “If only I’d spent a bit more time thinking about that and taken a bit more advice about it, I might not have made such a blooming mess of it”.

16:44

That is in the context of a continuing relationship in a loving background. We are not dealing with that but with something much more difficult, simply because none of the things that you normally rely on is there. That is why this House has an important role to play, which is to say to the Government, “Look, you’ve done remarkably well”. That is one of the reasons why I am proud to support them—because they have done remarkably well. They have also shown themselves to care about this section of the population whereas previous Governments of all persuasions have not shown much indication that they were very interested.

The Government have also stood out against the more raucous elements of the press, which of course find it easy to attack this particularly deprived and vulnerable section of the population because we are talking about people who have done dreadful things. Let us not kid ourselves; we are not talking about people who have been somehow misused by the justice system but about people who, for reasons that we can find upsetting, have done inexcusable things. This is a huge problem for a Government, and this Government have behaved enormously well.

I therefore want to say a simple thing to my noble friend. He has heard speeches from people who are not among the flag-waving antagonists he sometimes faces but from those who genuinely want him and the Government to get this right. The feeling is seemingly universal that we would like him to give time to get this right and enable this House to do its proper job. We would do that job better if we had all the knowledge and experience from the consultation that is about to take place. This might therefore be an opportunity for him to say, “Perhaps I can go away, think about this again and find it possible to give this matter time”, which is, after all, available. I do not quite understand why anyone does not want to give it. I hope that the Minister will take away the genuine feeling of this House, which will help him do something very important.

[The Lord Bishop of Rochester]

My Lords, I hope that I am not a flag-waving antagonist but I support the pleas made by the last few noble Lords who have spoken, asking for some thoughtfulness, reflection and time to be taken over this. I am grateful for the consultation about the rules but we need time to take that consultation seriously and reflect upon it.

We have heard, not least from the noble Earl, about the profile of the likely pupils in the establishment that we are talking about. It is admirable that we want to put education first and foremost in establishing the shape of this provision. However, we know it is vital that this particular group of potential pupils has the best possible educational experience provided for them because they have lacked so much in their pasts. Noble Lords will have different views as to the model for the best possible educational experience. For some, it might be an establishment on the banks of the Thames near Windsor; for others, it may be some other kind of establishment. But whatever it is, there is a sense in which we as parliamentarians are cast in this matter in the role of prospective parents, for it is in our name that the young people who are to be the residents or inhabitants of this institution are going to find their way there. Like good parents, we will want to view the prospectus. I remember the year I spent some time ago trailing around secondary schools in Birmingham seeking the right one for my daughter, and poring for many hours over the prospectuses of various places.

The prospectus may tell us some things about the physical environment—we have seen some plans and intentions and there have been some discussions about that—but of much more importance is what will happen each day and what the experience will be. Of course, in this instance that will be for 24 hours each day and for 365 or 366 days in the year. What will be the precise detail of the educational provision? How many staff will there be? What will be the skillset of the staff, and the mix of those skills? As has been referred to, what will be the discipline policy within this institution? What games will be played, and what other extracurricular activities will there be? As parents, one might also be concerned about issues such as the quality of the food which will be provided, and suchlike.

Of course, the prospectus brings us into the realm not only of the rules which we are now discussing but also of the terms of the contract. As good parents, it is wise of us to want to see as much detail as possible in this instance before we sign up to send our children to this particular place of education. I join other noble Lords who have made a plea that we might take things gently, and that even at this stage we might be allowed to see as much detail as possible, both of the rules and of the potential contract which is the subject of another amendment, before final decisions are made. We may then be able to exercise our quasi-parental responsibilities in this matter with confidence and assurance.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, 20 years ago last week I made my maiden speech in a debate on the care and protection of people in custody. This was in the context of my work at the time, which involved visiting police cells as a member of the police authority. Following that, I spoke in a debate initiated by Lord Longford. It took place late at night and there were few in the Chamber; at the time I was a coward about speaking in front of a full House. Lord Longford asked me whether there was anything else to do with the penal system which I would like to debate. I have great respect for much of what was done by Lord Longford. However, when I said that I wanted to talk about protecting people who were in custody, particularly young people, from emotional, physical or sexual abuse, he said, “We do not debate the problems in American prisons in this Chamber.” I could have agreed with Lord Longford on many things, but not on that.

My experience as a councillor, and as a visitor to schools and to units with young people, taught me that protecting people who are in custody, particularly the young, is an incredibly difficult task. We have heard that many have suffered violence, abuse and sexual or psychological abuse, and those of us who work with these young people know that on many occasions their behaviour plays that out.

I plead with the Minister to take this provision back. Having been in his position, I know that there can be difficulties if members of the Government in the other place are not here and are not listening to us. There is a message that could go back. The Government could come forward with their own proposals rather than risk defeat here. That would have the good will of the House and of the organisations which have written in. Most of all, it would allow those of us who are concerned about it to be as sure as we possibly can be that the quality, experience, framework and situation of the young people in this circumstance will be as advantageous as possible.

[Baroness Howarth of Breckland (CB)]

My Lords, I had not intended to speak in this debate, which is unusual bearing in mind the subject matter. I am on my feet for two reasons. I have sat in at consultations and I do not think that we will get a change from the Government: the Minister has already had it made it clear to him that this is the way in which the Government wish to move forward. I am on my feet because, despite the difficulties that I recognise he has, I should like him to do all in his power to take the messages back to the Government on behalf of the young people who will face this regime.

I understand the good intentions of the Ministers who have visited some pretty appalling institutions. We have heard from others about the kind of regimes where young people are incarcerated. That does not make this right. We could do even better with £89 million, particularly for this group of children. I find it difficult to disagree with the right reverend Prelate, for whom I have a particular affection. As I have said in many speeches, education cannot always be the centre of a unit for young people who are so highly disturbed. Those working in the field have made it absolutely clear in all that they have said that it would take those six months to settle someone with serious mental health difficulties who has never known consistent care, probably has a brain injury that has not been diagnosed and probably has a series of physical illnesses that will have to be addressed.

I do not doubt for a moment that we need to change the regime and that it is possible to do it. I simply do not think that the answer to the problem is a huge building of 300-plus children. At the moment it will include girls and young children but I deeply hope that when we get to that debate we can at least make some movement on that. The Minister will have access to all the research and advice about small units near facilities where parents, however difficult, can visit. I am not naive. I have run places like this in my time and I have been a director of social services. I have seen these young people and worked with their families. These young people make improvement if they are not anxious about what is going on at home. However much bravado difficult young men show, they are usually very anxious about what is happening at home and in their local community.

Therefore, I ask the Minister to think about giving time. Some of us are not totally against an alternative that might have a number of high-quality facilities in one place in which some of these youngsters might respond. It is simply that this is too fast, as many noble Lords have said. We need much more thought. People have visited really poor, barred institutions; the noble Earl, Lord Listowel, talked about going through bars. In the consultation, the Minister said that he wanted a centre to be light and airy, and a good place to be, with play facilities and health facilities. We all would applaud that. But this would be too big and the culture would be difficult. If the Government have not thought through the staffing and the leadership, the proposal is doomed to failure before it starts. This Government have talked time and again about leadership, about skills and about good, thought-through approaches. We have to have and understand those before this can go through.

I am disappointed that there are so few noble Lords present. I do not doubt that, if there is a vote with a Whip, the amendment will be lost. It would be a travesty for children and young people were that to be so. All we need is time to get this right for the future. We will repent at leisure if we act in haste on this.

17:00

[Baroness Linklater of Butterstone (LD)]

My Lords, this amendment contains two aspects which cause concern. One is the use of force—a matter of grave concern when dealing with young offenders—and the other is secure colleges, a new idea from the Government that fills us with despair and gloom.

This is one of the most sensitive and difficult areas of all offender management. The secure college rules sanction the use of “reasonable force” in three circumstances, and proposes a fourth. These are: to prevent injury to the young person or others; to prevent escape from custody; to prevent damage to property; and, lastly and worryingly, to maintain good order and discipline—otherwise known as GOAD.

Noble Lords have listed their own versions of such circumstances, including the last resort of,

“maintaining a safe and stable environment”.—[Official Report, 21/07/14; col.1046]

A comprehensive list was given by my noble friend Lord Marks, with such conditions as minimum force, minimum duration, minimum necessary and no techniques involving pain. All are agreed that force must not be used as a punishment, although it will most likely feel and seem a punishment to any young person who has the misfortune to experience it. It is highly undesirable and unjustifiable in almost every imaginable case that young people should experience this.

The acid test of really good management of young people who are characterised as being among the most damaged, the most difficult and often the most disturbed in their age group is that situations should not be allowed to reach such a point where force becomes an issue at all. Adolescent units in psychiatric hospitals present parallel situations, just as they often do in secure prisons, and control depends on very skilled management by well trained professionals. I have seen such examples in both situations—in prisons and in hospitals—where professionals do not need to have recourse to restraint because violent situations are anticipated and pre-empted. Once the possibility of force is accepted, it will be used.

The GOAD sanction seems the most concerning, partly because of the type of language used, including what is described as MMPR—managing and minimising physical restraint according to approved restraint techniques. GOAD—good order and discipline—is much broader, open to subjective interpretation and likely to be most widely used for that very reason. It is extremely worrying.

We do know that the JCHR recommended that only the first three circumstances of the college rules should apply, and that good order and discipline should not be included. It said categorically that secure children’s homes do not use force to maintain a safe and secure environment, and they have the same clientele. However, the MoJ has announced that it intends to allow the use of “reasonable force” to,

“maintain good order and discipline”—

which begs the question, of course, of what is “reasonable” where a young person is perceived to be posing a risk to,

“maintaining a safe and stable environment”.

The criteria are going to be so important.

Also, the MoJ does not consider it “necessary or appropriate” to set out in the Bill the circumstances in which custody officers are authorised to use force in secure colleges, and states categorically that,

“the Bill is clear ... a custody officer must be permitted by the rules to use force”.

This must be clarified further if the Government are to have some idea of the sort of regime they are sanctioning and for there to be confidence and trust in how these difficult and vulnerable children are being managed.

The JCHR’s most recent report on the Bill concluded that:

“We are concerned by the vagueness of the Government’s references to ‘maintaining a stable environment’ and protecting the ‘welfare’ of the child and others as permissible justifications for the use of force. The law is clear that the use of force on children … can never be justified for the purposes of good order and discipline”.

So there is a clear and currently unresolved difference of view, with each side apparently absolutely clear on the rightness of its position. However, what is clear is that the children and young people being dealt with here are recognised as being particularly troubled and vulnerable. If force is used on them, it confirms to them that violence is acceptable because that is what is being used by the authorities. Different standards and criteria are being used when it is deemed fit. I sincerely hope that such double standards will be rejected out of hand by the Government.

[Lord Beecham]

My Lords, the Government’s plans for the largest children’s prison in Europe are,

“bad for children, bad for justice and bad for the taxpayer”.

Those are not my words but, as the noble Lord, Lord Ramsbotham, pointed out, those of 29 signatories to a letter in the Daily Telegraph, which of course is affectionately known as the house journal of the Conservative Party. One would therefore expect the Government to pay particular attention to views expressed in it and by it. The signatories include the chief executives of leading children’s charities, the president of the Royal College of Psychiatrists and the chair of the Association of Youth Offending Team Managers, among other experts in the field. Today, the Daily Telegraph contains an article by Mary Riddell supporting the position of those who wrote that letter.

No one would argue with the intention to improve the education and thereby the life chances of young offenders, but the Government’s proposals for a secure college housing one-third of young offenders in custody bear all the hallmarks of yet another rush to misjudgment. With a site in Leicestershire planned for a young offender institution going begging, the Lord Chancellor’s latest notion was to engage a building firm to design a college housing boys and girls aged 12 to 17 and then to start a tendering process which would lead to potential operators effectively writing their own job description, with precious little information as to costs or the precise way in which the institution would be managed. As we have heard, last week the Government published their consultation on the rules that will govern the establishment, containing such revolutionary and transformative suggestions that inmates should be entitled to at least one hot shower a day. But, as the noble Lord, Lord Ramsbotham, has pointed out, the consultation will be concluded after the legislation is enacted, so Parliament will have no opportunity to consider the outcome or the Government’s response. That is a clear case of premature legislation for which no medical treatment can be prescribed.

Amendment 108 is designed to ensure proper scrutiny of this critically important part of the process. The amendment refers to the,

“mental or physical health needs”,

of young persons in secure colleges. As we have been informed by the noble Baroness, Lady Finlay, a report by the BMA on the detention of children is due to be published after the Bill has left this House. Given the seriousness of the issue, the novelty and controversial nature of the plans and the lack of detail as to how the college will operate in practice in terms of who will operate it and at what cost, why are the Government in such an unseemly hurry?

There are, as we have heard, serious problems about the proposals. Among the most worrying, is the notion of housing all 44 girls now in custody in England in one place, necessarily, potentially far from their homes, something which will also be true of many male inmates, and also remote from the local authority services with which they should be in contact. There will be no overnight residential visitor accommodation on the site.

The prospect of having 12 to 15 year-old boys in the same institution as 15 to 17 year-olds is also a matter of grave concern, even though they will apparently be housed in separate units on the site. The former vice-chairman of the Youth Justice Board expressed his misgivings about security with a high concentration of the latter age group. Today, the Chief Inspector of Prisons is reported as expressing concerns about a more concentrated mix of vulnerable, challenging and sometimes very violent boys, in the light of the fact that the number of children going into care is decreasing. It is becoming a more concentrated and a more problematic group. The older boys will potentially be in the same institution as these younger children.

Amendments 109 in my name and 117A in the name of the noble Lord, Lord Marks, in the next group, seek to deal with this matter. In Committee, the Minister indicated that no final decision had been taken on these sensitive issues, but, of course, that simply underlines the undesirability of giving the Secretary of State carte blanche to determine them without parliamentary scrutiny. It is also entirely unclear how the educational component, which is the ostensible justification for the scheme, will work, given that the population will be constantly changing. In Committee, the Minister said that,

“a sufficient bank of time in a secure college would be intended, with an individually tailored plan”.—[Official Report, 21/7/14; col. 1035.]

He failed to reply to my questions as to what sort of time we were talking about and who determined what sort of time would be ultimately allocated.

We are a country that criminalises children at a much younger age than most. We appear reluctant to inquire into, let alone learn from, the experience of other countries such as Finland, Spain—where, as the noble Lord, Lord Ramsbotham, pointed out, Diagrama runs the best children’s custody centres in Europe—or even the US, where the Missouri model, with facilities containing no more than 50 beds, is becoming widely adopted. Has the Government even examined these or other models? Yet here the Minister described the measure in the Bill as providing a,

“framework for the creation of secure colleges so that the Government can trial a new approach to youth custody”.—[Official Report, 23/7/14; col. 1185.]

If they have not examined other people’s trials, then the notion of a trial here is somewhat limited. In any event, it is an odd sort of trial that encompasses a third of the total potential number of relevant young offenders and one that perhaps threatens the viability of existing facilities, including secure children’s homes, run, as we heard earlier, by local authorities.

The proposals contained in the Bill have attracted very little support. They embody the Government’s usual attachment to outsourcing. They are being pushed through with scant regard to the proper processes of parliamentary scrutiny. I entirely echo the words of the noble Lord, Lord Deben, in strongly suggesting that the Government would be wise to extend the period and allow such scrutiny to take place.

Amendment 111 would require secure college rules to be approved, should the plans go ahead. Amendment 111A in my name would ensure that no second college could be provided without a proper assessment of the first, should that go ahead. I urge the House to support these amendments in order to ensure that proper consideration is given to these and other issues before launching what is, at present, an ill-defined and untested project. In addition, Amendments 120A, 120B, 121 and 122 deal with the use of force. The Joint Committee on Human Rights has expressed its views forcefully, as have a wide range of organisations. The amendment in my name and in the name of the noble Lord, Lord Ramsbotham, embodies the committee’s formulation.

In Committee, I pointed out that Schedule 5 to the Bill contains a wide power under paragraph 10 for a custody officer to use “reasonable force” not only to,

“ensure good order and discipline”,

but to prevent escape and,

“to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts”—

unspecified—and,

“to attend to their well-being”,

under paragraphs 8(c), 8(a), 8(b) and 8(d) respectively. In addition, paragraph 9 extends the possible application of force to the searching of detainees and anyone who is in the college or seeking entry. Those are very far-reaching powers, on which the Minister did not specifically comment. They will be entrusted to people whose training, qualifications and supervision we know nothing about.

The position is utterly reprehensible and I hope that, having listened to Members on all sides of your Lordships’ House, the Government will take time to think again. I repeat: we are all entirely with the Government on wishing to make the best provision in educational and other terms for these damaged youngsters, but we are heading down a road with no clear indication of the destination or, indeed, how we will reach it. The Government should take the time, look at other people’s experience, engage with those most involved with the service and with these young people, and come back with some revised proposals.

17:15

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments and to all those in the Chamber and beyond who have engaged with and helped to shape our proposals for secure colleges. It has been said during the debate that our proposals are rushed and ill thought out, and that there has been a failure to engage.

We have made considerable efforts to engage with a wide range of stakeholders and experts right the way through, from the gestation of this idea to bringing legislation before Parliament and developing plans for a pathfinder secure college. In our Transforming Youth Custody consultation, published in February 2013, the Government engaged with a wide range of organisations in the education, custody and voluntary sectors. Uniquely, we asked them to submit outline proposals for how a secure college might tackle the problems of poor education and reoffending outcomes. What I think there is complete agreement on in your Lordships’ House is that there is far too high an instance of reoffending by young offenders and that education is insufficiently catered for within the secure youth estate.

Those responses directly informed the Government’s response to the consultation, published in January this year. After the Bill was introduced in this House, I hosted an open event in July to outline our proposals, to share our latest plans for the design of the pathfinder secure college—the clue is in the name: pathfinder—and to listen to the views of those with interests and expertise in this area. Peers were assisted by iPads that gave a design and indication of the precise configuration of the secure college and how the various parts would work together. It proved a fruitful exercise, I believe, and the discussion that day with Peers led to substantial changes to our design for the pathfinder secure college.

Following that meeting, we secured additional land for the site, increasing its size by two acres and extending the range of sporting facilities and outdoor space. We also reconfigured the layout of the site to ensure that groups of the more vulnerable young offenders, whom we had already planned to accommodate separately, could access education and health facilities via a different route from older children at the site and would have separate sporting facilities. I was pleased to share those revised plans at yet another open meeting with Peers last week.

Noble Lords will also be aware that, following my commitment in Committee, last week the Government published a public consultation on our plans for secure college rules. It is a substantial document with a considerable amount of detail. I hope that those noble Lords who have felt it appropriate to comment on the inadequacy of the consultation will at least take the trouble to read carefully this consultation and realise the amount of detail that has been provided in order to come to the right final conclusion as to the rules.

The secure college rules set out the proposed policies which will inform those rules, and in respect of the use of force—clearly a matter of considerable importance to the House—set out draft indicative rules to facilitate greater scrutiny of our proposals. Noble Lords will also be aware that the Government have brought forward an amendment to make rules authorising the use of force subject to the affirmative, rather than the negative, procedure.

Throughout the process, Ministers have written to and met with a wide range of stakeholders to keep them apprised of our plans. Only yesterday the Prisons Minister, Andrew Selous, met a range of children’s charities and groups with an interest in youth justice. We also have been working closely with NHS England, the Department for Education and experts in education and custodial provision to test our designs for the secure college pathfinder. Our revised plans are now publicly available and are being scrutinised by Blaby District Council as part of the planning application for the pathfinder.

I hope, therefore, that noble Lords will recognise that considerable efforts have been gone into and opportunities provided for the views of others to inform our thinking. I have to say I was very disappointed to hear the noble Lord, Lord Ramsbotham, whom the House of course greatly respects on this area, suggest in Committee that, notwithstanding our engagement, it was,

“both unreasonable and irresponsible of the Government to expect Parliament to rubber-stamp it until it knows more”.—[Official Report, 23/7/14; col. 1173]

The Ministry of Justice and my officials have worked extremely hard to provide information about secure colleges. There were also lengthy debates in the House of Commons. I hope noble Lords have had a chance to see them. I have read all of them. A great deal of detail was provided at that stage and then in your Lordships’ House in the lengthy Committee stage. The Government have attempted to give answers to all the various points that have been given to them. It is, therefore, with great disappointment, that we are accused of being in contempt of Parliament.

I will now turn to the amendments. They cover the use of force, secure college rules and the powers of the Secretary of State to contract out the running of secure colleges. I will start by addressing the amendment on the use of force, as this is relevant to the government amendment in respect of the secure college rules. Amendment 121 seeks to restrict the circumstances in which a custody officer may be authorised to use force in a secure college. I am aware that a similar amendment was recommended in the recent report on the Bill by the Joint Committee on Human Rights. While the Government share the view that force must only ever be used as a last resort, and that only the minimum force required should be used, we believe it is right that force be available in a wider range of circumstances than the amendment permits.

In addition to preventing harm, we believe that force must also be available to prevent escape, to prevent damage to property and for the purpose of maintaining good order and discipline. I recognise that it is the final category which has attracted most debate. During a constructive debate in Committee, I set out the Government’s view that custody officers in secure colleges should be able to use force for the purpose of maintaining good order and discipline, but that this use would be subject to stringent controls.

In our consultation document on our plans for secure college rules, we have gone into a great deal of detail about our approach to the use of force. I am glad that my noble friend Lord Marks made reference to the instances given on page 23 of that document of particular examples which he, I think, accepted were instances where there would, in exceptional circumstances, have to be force used in circumstances where one would not normally want it to be used.

We have clarified that force, in these circumstances, may be used only where a young person poses a risk to maintaining a safe and stable environment and where there is also a risk to the safety or welfare of the young person against whom the restraint is used or that of another young person. We have set out examples in the document of the types of circumstances in which we believe the use of force for these purposes would be justified. We are clear that force can never be used as a punishment.

The consultation document makes clear our position that the use of force for good order and discipline would be authorised only to the extent that it was strictly necessary and proportionate; that only authorised restraint techniques could be applied; that the use of pain-inducing techniques for reasons of maintaining good order and discipline will be prohibited; that only the minimum restraint necessary for the shortest possible time must be used; that the young person’s dignity and physical integrity must be respected at all times; and that the best interests of the young person against whom the force is used must be a primary consideration. We have also set out safeguards and procedures to be followed before, during and after any use of restraint for maintaining a safe and stable environment.

The Government recognise the sensitivity and importance of provisions relating to the use of force with young people. That is why we are consulting publicly and in great detail, and we will consider the responses that we receive. However, for the reasons that I have set out, we do not agree with the restrictions that the amendment would place on the circumstances in which force could be used in secure colleges.

As a further commitment to ensuring scrutiny of our proposals on the use of force, we are bringing forward an amendment to the process for approving secure college rules. In its third report of the Session, the Delegated Powers and Regulatory Reform Committee recommended that if the Bill is to enable secure college rules to authorise the use of force for the purpose of ensuring good order and discipline, then such rules should, to the extent that they authorise, be subject to the affirmative procedure. We have accepted that recommendation and brought forward Amendment 122.

This amendment will make the entire first set of secure college rules subject to the affirmative procedure, as they will contain provisions authorising the use of force. This will give Parliament additional oversight of the secure college rules, although I cannot agree to Amendment 111, which would require the rules always to be subject to the affirmative procedure—a requirement which does not apply to prison or young offender institution rules, for example.

[Lord Beecham]

I am grateful to the Minister for giving way. I ascribed the wrong number to the schedule to which I referred earlier. It is Schedule 6 which is about the use of force. The Minister has referred to a number of instances which are certainly in that schedule, but he did not refer to paragraph 8(b), which talks about the use of force being permissible,

“to prevent, or detect and report on, the commission or attempted commission by them”—

that is, prisoners—

“of other unlawful acts”.

That seems an extremely wide definition. Nor did the Minister refer to paragraph 9, which relates to use of force in connection with searches.

[Lord Faulks]

I could go through the entire section, which is very lengthy, and deal with all the various aspects seriatim, but I am not sure that that would be a particularly useful process at Report stage, given that I am sure that all those who have been listening to this debate will have had the chance to see the entire detail of the relevant section of the secure college rules. I think that I have summarised fairly the Government’s approach in the rules. I also referred to those two specific examples to which reference was made by the noble Lord, Lord Marks. There have been discussions at the various meetings that we have had. So I would rather not be tied down to specific examples of when force should be used. We believe that the structure is there. We are of course listening to the consultation carefully and we encourage all those who are concerned, of whom there are many in your Lordships’ House, to take part in that consultation to assist us further in arriving at a satisfactory position, which I am sure we will be able to do.

The publication of the Government’s consultation will also reassure the noble Lords and noble Baroness who tabled Amendment 108 that we will certainly make secure college rules before such an institution opens. These rules will be essential to ensuring that young people are detained safely and securely in these colleges, and that they are educated and rehabilitated effectively. However, I strongly believe that this does not need to be placed in the Bill.

It is in the context of creating secure college rules that I turn to Amendments 120A and 120B, which would set out in primary legislation the conditions governing the authorisation of the use of force. I welcome the noble Lord’s amendment, which adopts much of the approach taken in the consultation document. However, I believe that this is a case for the rules rather than for primary legislation. I have provided assurances on how they will come into effect.

17:30

I am grateful for the amendment tabled by the noble Lord, which relates to the evaluation of the secure college pathfinder. The amendment seeks to ensure that before a second secure college is established, an evaluation is first conducted and a report laid before each House. This is, in a sense, what lies at the heart of this debate: many noble Lords have said, “This is all being rushed, you should wait and ask the Government to go away and think again”.

At present we are committing only to establish one secure college in Leicestershire. This facility will be a pathfinder intended to demonstrate the success of this new approach to educating and rehabilitating young offenders. I entirely agree that the first secure college must be rigorously evaluated. I assure noble Lords that that is exactly what the Government intend. It is important to emphasise that the secure college pathfinder that will open in 2017 will be subject to a thorough evaluation to assess implementation, operation and delivery against key aims and objectives, including the educational attainment and reoffending outcomes of young people detained there. The findings of this evaluation will directly inform decisions about the future of secure colleges and the youth custodial estate more generally.

The noble Baroness, Lady Finlay, addressed the House about concerns in relation to the mental health in particular of the proposed population of secure colleges. Of course, this will be a matter for NHS England, as I am sure she is aware, which has obligations to those in a secure college, in the same way that it has obligations to all members of the population. There is, as she may have seen in the design of the pathfinder college, a particular health unit placed strategically in the middle of the design. This will be the best way of delivering healthcare, uniquely tailored to those individuals.

I do not for a moment underestimate the challenges that these young people can present, and there may need to be a considerable amount of input in terms of medical help, advice and treatment. Although it is described as a very large establishment, a maximum of 320 is not large when compared with secondary schools, for example. There are some advantages in providing a larger number: there can be a better quality, and perhaps continuity, of medical attention. Of course, all this will be subject, as with the education provision, to inspections—inspections by Ofsted and Her Majesty’s Inspectorate of Prisons, supporting the Care Quality Commission reports, which will all be published. The expert oversight will provide an additional view of the performance of this new establishment. So while I entirely agree that it must be properly evaluated to gauge its success, I do not consider that writing such a requirement is appropriate. I will therefore in due course ask the noble Lord not to press his amendment.

Finally, and less contentiously I apprehend, the Government are bringing forward minor amendments consequential to our earlier amendments to extend the secure college provisions to Wales. The purpose of Amendments 114 to 117 is to ensure that the text of the Welsh language version of the Social Services and Well-being (Wales) Act 2014 is consistent with the English language version as amended by Schedule 5. This is necessary because the two instruments are legally separate. I can assure the House that the effect of the amendments is unchanged.

I conclude by saying that the current system of looking after young people in custody is not satisfactory. Noble Lords have been generous enough to acknowledge that this coalition Government have achieved much by reducing the number of those who are in the secure youth estate. Those who remain clearly present challenges. Often they have not had any significant education in the past. They will have—I hope that the focus of the college will indicate this—a real opportunity for education in a significant block. They may not be there for a very long period, and it is important that the education provider—this is something that we are entirely focused upon—is sufficiently agile to give them sufficient benefit by way of education, in terms of often quite basic education provision, so that they can reap a long-term benefit. Noble Lords will be well aware that this particular cohort often has had very little continuity in its education in the past.

All this will be provided in a bright, barless environment. There will be at least one visit a week. As the secure college rules show, we are endeavouring to use increased technology to enable communication with families while the young people are at the secure college. They will have enough space to be moved around effectively but nevertheless have some independence.

This is a really good idea. Let us not be fearful of innovation. This provides an opportunity. Caution is understandable, but seeking to delay what may be to the real advantage of young people would be making a mistake.

[Lord Ramsbotham]

My Lords, I am grateful to the Minister for his careful, thoughtful and wide-ranging response. I know that I speak for everyone in the House in saying that we agree with him both that we need to reduce the dreadful record of reoffending in our young offender establishments and that what is presently provided is not satisfactory and has not been for a long time.

I am very glad that the noble Lord, Lord McNally, is in his place; I would have expected the Minister to have paid tribute to the Youth Justice Board, which has been principally responsible for the reduction of the numbers, and in fact has been a remarkable example of good leadership and carefully researched innovation ever since it was formed.

[Lord Faulks]

I am very grateful to the noble Lord; he is quite right to reproach me for not giving credit to my noble friend Lord McNally, and I am very happy to do so.

[Lord Ramsbotham]

Having said that and witnessed the Minister’s customary graciousness, I agree with him that there has been an enormous amount of engagement and effort by officials and others to engage with people, but that engagement has been not about if the secure college will be established but when. We therefore still know nothing about what is to be done, who is to do it and how much it is to cost. I have quoted a number of times in this House the two definitions of the word “affordability”: first, can you afford it, and, secondly, can you afford to give up what you have to give up in order to afford it? Bearing in mind the current situation, financial and otherwise, I wonder whether it is worth spending the amount of money on this unproven and uncosted pilot when it could be diverted now to doing better by all the young people about whom we have been talking.

I accept that we are talking about a pathfinder and that the affirmative procedure for the rules is being proposed. However, the affirmative procedure will come only after the Bill has become law. Everyone knows that an affirmative procedure that comes after that has no clout anywhere—and certainly not with this.

I thank all noble Lords who have contributed to this debate for the wide and thoughtful contributions that they made. The one that perhaps struck me most was from the noble Lord, Lord Deben, who reflected on the fact that we all know and love people of the same age group as those whom we are talking about, whose interests are currently not well served by the country. Therefore, the country must have a very clear say in what happens to them.

I understand that the secure college pilot is to be rigorously evaluated and will open in 2017. I will return to NHS England and healthcare provision in the next group because I do not think we have had full coverage of it. My feeling is that the Government appear hell-bent on pushing this through, but I do not think that it is the right approach. I am not proposing to divide the House on this amendment, but I give notice that I will do so on Amendment 111, which specifically mentions the approval by Parliament of the rules before they are adopted. I beg leave to withdraw this amendment.

Amendment 108 withdrawn.

Amendment 109

Moved by

[Lord Beecham]

109: Clause 32, page 31, line 2, at end insert—
“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”

[Lord Beecham]

My Lords, I have effectively spoken to this amendment in dealing with the issue of girls and boys being housed together. I will not therefore take the time of the House for very long but will just report that today the Women’s Resource Centre and Women’s Breakout have issued a statement concerning this matter. It says:

“Government plans to allay the … safeguarding concerns … by fencing-off girls and vulnerable children are inadequate. Girls will still be held alongside boys in the separated area, so safeguarding risks remain. The proposed fenced-off area will be a ‘prison within a prison’, likely to be reminiscent of the claustrophobic … units in Young Offenders Institutions, which have … been closed down … Girls in custody are an immensely vulnerable group. A Prison Inspectorate survey found that 61% of girls in young offender institutions had been in local authority care, compared to 33% of boys. A Youth Justice Board report found that one in three girls had experience of sexual abuse, and one in five had experienced violence in the home. There are so few girls in custody that they can easily be accommodated in the smaller, and far more appropriate, Secure Children’s Homes. There is no need to hold them in a secure college”.

I adopt that view and invite the House to do so. I beg to move.

[Lord Ramsbotham]

My Lords, I will speak both to this amendment and Amendment 110. I know that I am up against a very strong three-line government Whip and, unlike the Minister, I am not a skilled advocate nor have I anything to do with party politics. If I were to be granted one wish before our deliberations, it would be that Part 2 should be removed completely from the party-political arena because it is not a matter of left or right politics—it concerns the future of some of the most damaged and vulnerable children in our society, which is a matter of national not electoral importance. Imitation being the sincerest form of flattery I can do no better in relation to this group of amendments and the next than to slightly adapt the words of the noble Lord, Lord Carlile of Berriew—of whose seminal review on the use of restraint and seclusion on detained children I was privileged to be a member—about an earlier amendment: that this is an issue on which all parents and grandparents, uncles and aunts, sitting on the political Benches should be entitled to and should exercise their consciences, reflecting that they are deciding on the treatment of children of the same age as those that they know and love; that is a very important responsibility.

I make no apology for quoting, yet again, the words of the then 36 year-old Home Secretary Winston Churchill, and ask the House whether it could imagine him making the proposal that is now before us. He said:

“We must not forget that when every material improvement has been effected in prisons, when the temperature has been rightly adjusted, when the proper food to maintain health and strength has been given, when the doctors, chaplains, and prison visitors have come and gone, the convict stands deprived of everything that a free man calls life. We must not forget that all these improvements, which are sometimes salves to our consciences, do not change that position. The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country … and proof of the living virtue in it”.—[Official Report, Commons, 20/7/1910; col. 1354].

In this case, for “convict” and “man”, read “child”. Stripped to its basics, the proposed secure college at Glen Parva is a cost-saving exercise based on presumed economies of scale on a site which had previous planning permission for a young offender institution. All the other assertions, beginning with education, healthcare and safety being at the heart of the design, are what Winston Churchill recognised as “salves to our consciences” dressed up as generalisations with which no one could possibly disagree. Of course no one could disagree with any intention to improve education, healthcare and safety from what I used all too often to find as Chief Inspector of Prisons, and which persists today largely because no one has been made responsible and accountable for making improvements.

17:45

However, when you look below these generalisations you find nothing of substance—no evidence of the hard thinking-through of the details of what such children need, or of whether it is possible that inexperienced private contractors can do more with less than that which experienced people from both public and private sectors have been trying desperately to do over the years, or of conformity on the very cramped site with the square metre standards laid down by the Education Funding Agency. The despair of good people trying to do more with inadequate resources was evident in a long article about suicide in the Guardian on Saturday, quoting the governor of Glen Parva, bursting into tears when apologising to the mother of a seriously mentally ill young offender who had taken his own life, with the words:

“I’m trying, I’m really trying”.

Then there are the words of the governor at the children’s YOI at Werrington when I and my inspectors arrived for an unannounced inspection: “Thank God you’ve come”.

That says to me that it is not one part of the youth justice system that is in urgent need of reform. It is the whole system, as I have said before, beginning with diversion to ensure that those with mental health problems do not end up in custody, then improving community alternatives, then custody, and then transition from custody back into the community—ensuring that all parts are able to work together and are not prevented from doing so.

I am particularly grateful to the noble Baroness, Lady Finlay, for mentioning healthcare. I am grateful, too, that the British Medical Association has allowed the comprehensive report Young Lives Behind Bars to be used in this debate. Quite rightly, the BMA is very concerned indeed about the well of psychiatric morbidity that these children present, and absolutely right to insist that what is done is appropriate for their needs. It is not appropriate merely to pass the buck to NHS England. I am quite certain that the adolescent mental health authorities in Leicestershire will not thank the Government for parking 320 seriously disturbed young children on their site, in addition to all the other things that they have to do, particularly with Glen Parva YOI next door.

I simply do not understand the argument about why children need to go there. I salute the noble Lord, Lord Marks, for his comprehensive Amendment 117B, not least because it highlights so many aspects of good and proven practice and expert advice, not to say common sense, with which the secure college seems to be in wilful defiance. There are currently only 48 children under 15 in custody, and not many of those are from the proposed catchment area for the secure college. There are only 45 girls in custody, of whom only four live in the catchment area. Bearing in mind that the Government have said that they will not dispense with all the secure children’s homes, which being smaller are much more suitable for children under 15, why do any children need to go to the secure college anyway? Their presence will make life more complicated for both education and custody providers, and there are enough places for them in the secure system anyway. When I saw in the recently issued consultation document Plans for Secure College Rules that no decisions had yet been taken about who would be accommodated in the secure college pathfinder at Glen Parva, I hoped that I might be pushing at a door that had not yet been finally closed. I hope that the Minister will be able to reassure both this House and those who are bidding for the contract that this unnecessary complication will be removed.

I will conclude with a statement that I received from the head teacher of the Ian Mikardo High School, which received enormous praise both in the press and from Ofsted and which has received three outstanding reports. The fascinating thing about that school is that it has to deal with children 100% of whom have special educational and other needs. I contrast the record of the young offender institutions not just with the Ian Mikardo High School but with the Clayfields secure children’s home, which has a reconviction rate of 18% and a remarkable record of successful education and training.

The head teacher of the Ian Mikardo High School, Claire Lillis, who was formerly head of education and deputy governor at the Medway Secure Training Centre, wrote to me to express her extreme concern at the Justice Secretary’s plans to enable staff to forcibly restrain teenagers at the proposed children’s prison. However, she added that she was,

“equally appalled that the Department of Justice should regard locking up 320 vulnerable young people in a ‘secure college’ as a route to them having a positive and fulfilling future”.

All her 40 pupils, as I said, have statements of special educational need for social, emotional and behavioural difficulties, and she says that they,

“would be heading for prison at a young age were it not for this provision”.

In addition to their special educational and further complex needs, 97% were school non-attenders, 94% are known to child and adolescent mental health services, 12% are on the child protection register, and 31% are children in need. That is a worse record than is forecast for the secure college.

I will read three more quotes from her letter; first:

“Thanks to dealing with conflict through talking, developing healthy relationships and ensuring that staff do not use restraint, attendance of students, initially surprised by this approach, but now feeling safe and secure, is 90% plus, 96% going on to college, training or paid work”;

secondly:

“There is something inherently wrong about using force for compliance. The Ministry of Justice is only reinforcing young people’s view that the world is a dangerous and scary place, in which they are regarded as unworthy and untrustworthy”;

and finally:

“In my experience children who are regarded as hardened criminals are invariably fragile and frightened, and I question whether it is appropriate to use adult prison companies for this highly specialised work. If children are so at risk that they need to be in a secure environment, then we need to support them using specialist staff working in a therapeutic, caring, nurturing way. Otherwise we will turn out children who have lost their dignity and their identity and who are more angry, more detached and more criminally intent”.

I think noble Lords might like to reflect on those words and some of the key facts about the Ian Mikardo High School. There are 10 teachers and 12 teaching assistants for the 40 boys, plus a parent engagement officer and two psychotherapists, one for the boys and one for the staff. Has the Secretary of State considered the strain on staff who would have to look after 320 difficult, challenged and vulnerable children in one confined space? Each place at the Ian Mikardo school costs about £38,000 a year; that is, of course, minus custody costs. I believe that the principal reason for its success is that the head teacher, armed with her experience of looking after similar children in the criminal justice system, planned, staffed and costed her reforms in great detail—including the banning of restraint, which she has pursued consistently—with the help of carefully selected and properly supported staff. I regret that I see no evidence that anything like that—which I think is absolutely essential—applies to the plans for the proposed secure college.

[Lord Carlile of Berriew]

Last Thursday, my noble friend Lord Faulks and his ministerial colleague from another place, Mr Selous, gave noble Lords the opportunity to hear from both Ministers and to look, not for the first time, at the physical plans for the secure college. Some changes had been made to the plans since the last time we had seen them. Those included carefully separated provision for girls and vulnerable boys in the younger age group.

When the plans were presented it became clear that what was being provided was the best one could manage on that site, in the view of the Government. What they have provided, in the plans that we saw depicted, is a way of transferring the girls and vulnerable young boys from their accommodation to health and education provision whereby part of the site is locked down from other students while the youngsters and the girls are being moved around. This is not a way in which any sane person or organisation would design a school or college. One only has to ask any teacher who has ever had to deal with the separation of boys and girls of the age that we are talking about—even, for example, when moving them to and from sports facilities—to know the kind of potential trouble that exists even in the best ordered institution. And we are not talking about an institution in which the students will in all cases be volunteering their co-operation for good order.

When we examine the situation further, we find the following. Unless my noble friend can point to something that we have not yet seen, no independent organisation assessing the merits of education provision has reported that this is a good design for such a college. Nobody has reported independently or empirically that this is a good way of dealing with girls and young vulnerable boys in such an institution. I repeat, as I did at the meeting, that I am grateful to the Government for finding another 2.5 acres on the site for some additional—though, I apprehend, still inadequate—sports provision. But the truth is that the Government are going to spend £80 million on this site for one reason alone—the fact that they already own it.

I wonder whether the local planning authority, which I believe is Blaby Council, will be as calm as the Government about the quality of the provision, its security and how satisfactory it is for this very young age group and for girls. I very much hope that it will not. It would not surprise me if the local planning authority raised some difficulties. As I said, the college is there simply because the Government own the site, and in order to fill that site they wish to shoehorn in girls and young vulnerable males as well. Those people should not be there at all, as the noble Lords, Lord Ramsbotham and Lord Beecham, and others have made absolutely clear.

17:59

I want to say something about Amendment 110, and particularly health needs. Your Lordships do not need my next remark to be repeated, although I will repeat it merely for the record—namely, that almost all the children in an institution like this will have at least one identifiable mental health condition and many of them will have multiple mental health conditions. Those mental health conditions will have been exacerbated by poor parental care, possible sexual abuse and violence at home. I regret that I have observed that the first time many young people have somewhere comfortable and secure to sit down is when they are in custody—in other words, they have multiple serious needs, many of which have to be met through child and adolescent mental health services. There will be self-harmers among them, particularly, I fear, among the girls. This is well documented in relation to teenage girls. Self-harm is extremely difficult to manage. Taking a girl through a secure tunnel or walkway to spend a little time in a health centre, however good it may be, and then walking her back under the same conditions to her accommodation just will not do. It is not the way in which child and adolescent mental health services work.

The Bethlem Hospital has provision for teenage mentally ill people. By the way, it has a school so it is interesting as a comparison. If my noble friend were to visit that hospital, he would find that the children in question are moved into a single room in which they are watched constantly. When they start to self-harm a little less, they are watched every five minutes and so on. It is a very complex process. I have heard no assurance that there is provision for girls, or any other children in this institution, to be managed under the medical model followed in the best child and adolescent mental health services. I repeat that this just will not do. It is inadequate in the absence of evidence of nearby residential mental health facilities with education provision to which these young people with these awful conditions can be moved. They are not lost causes. I can tell my noble friend that young people do recover from self-harming. I have seen plenty of examples of that, including one closely connected to myself. They recover from these conditions—they may recover permanently—and may lead completely useful, normal and, indeed, very profitable lives. However, they must be provided with the facilities to enable them to do so.

Frankly, those who have looked at the plans of the proposed site, with its shoehorning of people on to a property owned by the Government, as I mentioned, despair that any real thought has been given to the merits of these cases. Despite the effort that has been made—I am truly grateful to my noble friend and other Ministers for keeping us well informed—I cannot support a provision like this, which I confidently predict will be visited in an official capacity in a few years’ time by the noble Lord, Lord Ramsbotham, or somebody with his knowledge and experience, who will condemn this college as failing the most vulnerable in the age group concerned.

[Lord Marks of Henley-on-Thames]

My Lords, I have two amendments in this group—Amendments 117A and 117B. I should have said at the outset today that the amendments in my name are all supported by my noble friends Lady Linklater, Lady Harris and Lord Carlile, who has just spoken. My noble friends would have added their names to the amendments had Monday not been such a busy day.

My first amendment is to the same effect as Amendment 109 in the names of the noble Lords, Lord Ramsbotham and Lord Beecham, and would prevent girls and younger boys—that is, those under 15—being held in secure colleges. The proposal for the first secure college at Glen Parva, just east of Leicester, is, as my noble friend made clear, a pathfinder proposal. It is intended to be experimental. I suggest that it cannot be right to experiment in this way with the lives of girls and young boys in custody. Widespread and deeply felt concerns are unanimously expressed in the many specialist briefings we have received, notably from the Standing Committee for Youth Justice, the Howard League for Penal Reform, the Children’s Rights Alliance for England and the British Medical Association, to whose impending report the noble Baroness, Lady Finlay, referred earlier. All oppose holding girls and younger boys in the same institutions as older boys.

The numbers alone are extremely telling. As we all are now aware, there are only 1,100 offenders in custody in the secure estate. We have made it clear many times how far we regard this as a great achievement of this Government in the field of youth justice—a point which the noble Earl, Lord Listowel, made earlier today. However, only about 45 of those young offenders are girls and, although the relevant numbers may vary, I think that fewer than 40 are under 15.

In the consultation paper on the proposed secure college rules, the Government have made it clear that they propose that there should be a rule to ensure separate accommodation for girls and boys. As my noble friend Lord Carlile just mentioned, the Government have also made it clear that the plans for Glen Parva disclose an intention that girls and younger boys should be housed in separate blocks, segregated from the main body of the secure college by a fence. However, they will share with the older boys the main education and health block at the site.

At the meeting the other day which my noble friend the Minister helpfully held with Peers to discuss secure colleges, a point was made that officials had seen co-education working well within the secure estate—boys and girls working together on, I think, decoration. That may be. However, the risks posed of occasional but very serious incidents occurring in such circumstances are severe. Furthermore, I do not believe that the Government have taken fully into account the inevitable feelings of intimidation and isolation likely to be felt by a small number of girls in an institution containing a large number of older boys. They will be a tiny minority at best, and the same goes for vulnerable younger boys. Nor should one forget that a large proportion of the girls have been victims of sexual abuse by older men. It is entirely wrong, I suggest, to force through this mixed education experiment. I believe that the experiment itself is unacceptable in this regard.

Places are available in secure children’s homes for this very small group of children. My noble friend and the noble Lord, Lord Beecham, speaking for the Opposition, were in rare accord in that both spoke well of secure children’s homes and of their future. The Government assure us that they intend to keep open secure children’s homes. They are small and provide a nurturing environment. Many provide a highly successful educational content. During the Recess I visited Clayfields House, a secure children’s home in Nottinghamshire. That home has secured a remarkable success with children in avoiding reconviction upon release. At Clayfields they provide not only education, achieving truly remarkable exam results in very short periods of time, but also effective vocational training, arranged by a local private sector employer, in motor mechanics and construction trades. It is a facility shared by the secure children’s home with local schools and others.

I fully appreciate that secure children’s homes are expensive, but we are talking here about housing a very small number of children in an appropriate environment. We are talking about turning around the lives of a group of extremely damaged children. If we do not spend now the resources necessary to ensure that they are held in suitable surroundings and given the opportunities afforded by a period of personal attention and tightly focused education, helping them towards gaining employment later, then we face the far greater financial burden of considerable extra expenditure in the future as they spend their lives in and out of the criminal justice system and dependent on the public purse for social services and welfare benefits.

My second amendment in this group is similar in terms to one that I tabled in Committee, which was kindly mentioned with approval by the noble Lord, Lord Ramsbotham. This amendment sets out the principles that should underlie the foundation of any secure educational establishment. I say again that we are completely in support of the Government’s intention to introduce more and better education for young offenders in custody. The present educational services in Feltham and other young offender institutions are inadequate and ineffective. The lack of education and training for the world of work is one reason for the appallingly high reoffending rates for young people. However, we should not lose sight of the fact that young offenders who are in custody are, for the most part, deeply troubled young people. Very often, their contact with the education system prior to their being sentenced has been limited at best.

The evidence convinces me that the best way in which to provide education for young offenders and improve their chances of rehabilitation is to provide establishments that are small enough to guarantee individual attention from staff; are easy to visit for their families; are designed to assist rather than impede continuity of supervision following release; and offer education and other facilities that are sufficiently focused and supportive to ensure that the different needs of individual offenders with different problems, and who are sentenced and due to be released at different times, can be suitably met.

In this regard, I have added to my Committee stage amendment the need to ensure adequate mental and physical healthcare facilities for young offenders. The need for such extra attention to these issues has been highlighted by the BMA briefing on its impending report on these issues, and my noble friend Lord Carlile has spoken about that. The BMA points out, tellingly, that the state takes over responsibility for these offenders precisely at the point when their needs are most acute. The BMA’s support for the principles of these amendments is only one area of support among many. I again ask the Government to reconsider their proposals, to look at the principles advocated by all those who have done years of research upon this subject, to think again about the Glen Parva proposal and to reject the idea that girls and younger males under 15 should be held in detention in that institution.

[The Earl of Listowel]

My Lords, it seems wiser not to keep girls in this proposed new pathfinder institution, in part because, as I said in Committee, some of them will be pregnant, giving birth or just have given birth. If they are to be housed there in those conditions, the utmost consideration needs to be given to their needs because, as a society, we are becoming increasingly aware that the attachment that a mother makes to an infant is vital to that child’s later life. Indeed, I am sure that it is often because their mothers were in poverty, alcoholic and unable to form a bond with their child that these young women have followed this course in life. Whatever health provision is offered at the institution to these girls—these mothers—their perinatal needs should be considered.

My noble friend makes an extremely important point about access to psychotherapy for staff members. So often that can be seen as a luxury but, given the relationships that members of staff make with these troubled children, such access is the absolute key in getting the best behaviour from them and avoiding the use of force. If staff can build a good relationship with these troubled young people, force will not be necessary and can be avoided. Staff need expert support in thinking about these children and the relationships they form with them. I therefore thoroughly endorse my noble friend’s point.

Finally, the Children’s Commissioner has produced important reports about the sexual exploitation of girls by gangs. Thought needs to be given to the implication for girls who are placed in establishments where large numbers of gang members may be around. I am thinking of the case of a 14 year-old girl who was raped by a gang member, became pregnant and was very concerned to keep her anonymity. It should be possible to keep girls’ anonymity so that a gang member cannot pass information back to another gang member and say, “The girl you knew is now pregnant”, and so on. That can be a difficult scenario.

18:15

[Baroness Finlay of Llandaff]

My Lords, the hour is getting late and I am aware that we are hoping to divide the House on another amendment. I have spoken about the antecedents and health problems related to some of these young people’s behaviour. However, I remind the House that there are big differences between the girls and boys. More than half the girls have witnessed domestic violence, compared to about a quarter of the boys; 35% of the girls have substance-abusing mothers, compared to about 9% of the boys; and 18% of the girls have substance-abusing fathers, compared to 5% of the boys. When you take the very small number of girls who are extremely disturbed into an environment and confine them near a large number of boys who are also very disturbed, it is almost like putting them in a pressure cooker. I hope that the importance of not having a minority of girls on this site has been taken on board by the Government.

I cannot stress enough the importance of having high-quality clinical staff available, too. This is not just about staffing the posts but having very highly trained people who want to live in that area, be there with a sufficient support infrastructure and have ongoing training and education—as well as succession planning so that one is not left with low staffing levels that could create a crisis.

[Baroness Howarth of Breckland]

My Lords, most of the arguments about girls on this site have been clearly made, so I want to make a quite different point rather than repeat the ones that have been made.

I have looked carefully at both sets of plans for this site. Were one not to accommodate girls and young boys at the far end of the site, the flexibility one would have—maybe for the pathfinder to succeed—would be far greater than one would have with the complication, described by my colleagues throughout this debate, of confining girls who will be claustrophobic, adding to their difficulties. The young boys will simply learn from being on that site all the bravado that comes with it. If one wanted this proposal to succeed at all, one could instead have more space and better capacity provision. The Minister knows I am not in favour of this proposal but I know that it is the wish of those who have visited some of the other establishments to do something better. As I said, one could do even better by using that part of the site to make sure that the pathfinder succeeds.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments, which are important, although they focus on two narrow but, I understand, critical aspects of these proposed secure colleges.

Dealing first with girls and those aged under 15, Amendments 109 and 117A seek to exclude girls and under-15s from secure colleges, or to prevent girls being accommodated on the same site as boys. I entirely recognise that there is understandable caution about the risks involved in allowing girls and under-15s to be placed in a new type of secure establishment, where the majority of young people will be boys between the ages of 15 and 17. I also recognise the importance of secure colleges being able to address the particular educational, health and emotional needs of these undoubtedly very vulnerable young people.

Let me assure noble Lords that we have gone to considerable lengths in our designs for the secure college to ensure that the younger and more vulnerable groups could be accommodated in separate small units. As my noble friend Lord Carlile told the House, following a meeting in July we made changes to the plans to enlarge the site by two acres, and to ensure that the younger and more vulnerable people have their own sports and recreational facilities. This is not merely tunnels—as he describes it—but separate facilities and separate access routes to the main education and healthcare building. In this way, it will be possible to deliver a distinct regime that caters to these more vulnerable boys and girls. In our consultation on our plans, we have also proposed a rule requiring girls to be accommodated separately from boys. I referred to that consultation earlier this afternoon.

However, I should make clear to the House that no final decisions have been taken on who will be accommodated in the secure college pathfinder. This will be determined in light of the analysis of the make-up of the youth custodial population ahead of the pathfinder opening in 2017. I also gave a commitment in Committee that girls and under-15s will not be placed in the pathfinder from its opening, and that any decision to introduce them would be carefully phased. While I entirely recognise the concerns that lie behind these amendments, I believe that the risks can be sensitively and safely managed. This already happens in secure training centres and secure children’s homes, where boys and girls of different ages are accommodated on the same site.

There have been references to the numbers in the youth custodial estate. I can assist the House by saying that at the moment there are 16 girls in secure children’s homes, and 20 girls in secure training centres. That is a total of 36. There are 25 under-15s in secure children’s homes, and 13 in secure training centres, giving a total of 38. In one of the secure children’s homes there are 24 boys and one girl, so we are not talking about a large number.

We are anxious not to preclude, as a matter of strict law, the possibility of admitting to the secure college girls or those aged under 15. However, the House will know that the Youth Justice Board takes the decisions on where young people who are sentenced or remanded into custody are to be placed. These decisions are taken by specially trained staff and informed by detailed advice from the youth offending teams who have been working with the young people. The Youth Justice Board’s placement decisions are based on the individual needs of a young person. They take into account the whole range of factors that you would expect, such as age, gender, vulnerability, location, offence and any previous history. There is a very nuanced assessment before children are even considered appropriate for the secure college. However, the amendment would absolutely prevent it.

[Lord Carlile of Berriew]

I am grateful to my noble friend for giving way. I accept everything he has said about it not being for the Government to determine who goes to which institution. However, surely he can tell us whether he expects or anticipates any girls being sent to this institution.

[Lord Faulks]

As I said a little earlier, we do not expect this to happen, certainly in the short term. However, we do not want to write into the legislation that it should never happen. This is because, as noble Lords will appreciate, not all 14-year old boys are the same, physically, mentally or in their needs. This is also so with girls. I do not anticipate that this is likely to happen in the short term, but this amendment would completely prevent it happening. Yet there are instances of girls and boys actually deriving benefit from each other’s company.

[Lord Carlile of Berriew]

I apologise for intervening once more. I promise not to do so again, at least in this speech. Does this mean that, although my noble friend is not able to anticipate whether any girls will be placed in this pathfinder college, nevertheless the Government have decided to build a building to accommodate girls, which may lie empty for the next 25 years?

[Lord Faulks]

No, the answer is that by their secure college the Government are trying to provide a college which is sufficiently flexible to allow them to cope with whatever the demands are. Of course, it is impossible to predict precisely the age or the gender of those who will find themselves sent to a secure college, or to whatever the appropriate custodial institution may be. The answer is to set up a college which has the provision for a separate accommodation if that is appropriate.

It appears that we are somewhat damned if we do and damned if we do not. We were criticised for not having a separate accommodation for girls and young men, and we are now being criticised for having it and not using it. I hope that there will be some acknowledgment that we have made considerable efforts to try to find an appropriate way of housing them, should it be appropriate for them to be sent there.

Amendment 110 seeks to place a duty on the Secretary of State to make arrangements for adequate specialist provision to meet health and well-being needs in a secure college, and to make sufficient places available in a secure children’s home. Amendment 117B would impose a number of welfare requirements on secure colleges. These amendments go to the heart of which matters should be for primary legislation, which should be in secondary legislation and which are to be delivered through contractual arrangements. Some of the requirements in Amendment 117B relate to areas of fundamental importance—such as safeguarding, education, health and well-being, staff training and visits—and as such are matters that, rightly, we will address in the secure college rules.

Similarly, Amendment 110 would require the Secretary of State to make arrangements to ensure that secure colleges have adequate specialist provision in place to address young people’s health and well-being, and to ensure that sufficient places are available in a secure children’s home. The responsibility for commissioning health and well-being services, including specialist provision, for young people in a secure college will rest with NHS England. As noble Lords will be aware, this is in line with the arrangements currently in place for the existing secure estate.

Similarly, it is local authorities, not the Secretary of State, which are responsible for providing sufficient places in secure children’s homes. The Youth Justice Board recently agreed contracts with nine secure children’s homes. As I have previously indicated, we remain committed to ensuring that specialist separate accommodation will be available for the youngest and most vulnerable offenders. NHS England will assess the healthcare needs of all those detained in secure colleges, and commission services appropriate to meet their assessed needs. In doing so, NHS England applies the intercollegiate healthcare standards for children and young people in secure settings which were developed by the royal medical colleges at the invitation of the Youth Justice Board.

As we indicated in the recently published consultation on our plans for the rules, the role secure colleges play in healthcare is to provide the right environment where healthcare professionals can carry out their responsibilities for the care and well-being of young people. We therefore propose that the rules should include a requirement to ensure that a young person has safe and timely access to health services in a secure college. I hope that that goes some way towards reassuring the noble Baroness, Lady Finlay, who is understandably concerned about the quite complex care needs that these young people will have.

As I said in answer to an earlier debate, the design of the healthcare facilities has been developed in collaboration with NHS England, which was consulted at that stage. Indeed, it was NHS England which advised us to amend our plans in order to bring the healthcare provision within the main educational block. NHS England assisted in the consultation and the way that the college is to be configured. Not only will this reduce the disruption to education when young people need to attend health appointments, but it will also help to normalise access to healthcare for a group of young people who, as I am sure that the noble Baroness and others will be aware, have not always had regular contact with a GP or with the specialist services they require. In some senses, it is hoped that they will be better off here than they might be in the community in terms of access to healthcare.

18:29

In our consultation we have proposed rules on the assessment and safeguarding of young people; on a minimum of 30 hours of educational activities for all young people each week; on access to healthcare services commissioned by NHS England; on staff training that is approved by the Secretary of State; and on an entitlement for all young people to receive at least one visit a week. It is worth noting that the Youth Justice Board operates an assisted visits scheme providing financial support to the families and carers of young people in custody. We have proposed a rule setting out the purpose and ethos of secure colleges. We stress that the welfare and safeguarding of young people are vital considerations, which is why we proposed that the requirements and protections I have outlined will be set out in secondary legislation.

Other considerations raised by Amendment 117B will be for contracts to address. We are clear, for example, that the education provision in secure colleges must respond to the regular departure and arrival of young people who may be on remand or serving short sentences. Therefore, roll-on roll-off courses designed quickly to develop skills and raise attainment, as are delivered in the current estate, must be available. However, while the average length of stay in youth custody may be only 85 days, this figure is skewed by the remand population. In fact, around 50% of the population in custody at any time will be serving sentences of at least six months in custody, which is the equivalent of two school terms and therefore provides a real opportunity to make a significant impact on a young person’s life.

I cannot agree to the requirement in Amendment 117B relating to the size of secure colleges. I have heard the arguments that smaller establishments are better environments for young people, and they have been rehearsed today. But there remains no evidence demonstrating that such places achieve better reoffending outcomes or that they present better value for money. While I know that much excellent work is done in secure children’s homes—I repeat what I said earlier in that regard—it is still sadly the case that 72% of young people detained in these establishments reoffend within a year and cost more than £210,000 a place each year. I should perhaps remind the party opposite that placing all young people in such accommodation would cost around an additional £100 million.

[Lord Ramsbotham]

Will the noble Lord exclude Clayfields from that, where the reconviction rate is 18% and costs are £185,000 a year?

[Lord Faulks]

I am perfectly happy to accept the costs from the noble Lord. As regards the offending rate, one needs to look over a long period. He tells me those rates but I have not had a chance to see those specific rates or for how long a period. However, I am sure that there are variations within the secure college estate. It would cost around £100 million each year to do what seems to be suggested, which is not a viable solution. It is, as we know, easy to forget the deficit, but this Government do not do so.

Although the secure college pathfinder will have a capacity of 320, the site is composed of seven distinct accommodation buildings, with some broken down into smaller living units. Young people can be accommodated in distinct groups, a sense of community can be fostered in each, and the younger and more vulnerable groups can be kept separately if that is considered appropriate. Our plans demonstrate that big does not mean imposing and impersonal. The size will enable a breadth of services and opportunities to be offered.

It is a consequence of the welcome and significant reduction in the number of young people in custody that there are fewer custodial establishments and that some young people inevitably will be detained further from home. This is not a new problem and, for the reasons I have outlined, a network of small, local facilities is not, sadly, a viable alternative. However, distance from home remains one of the factors taken into account by the Youth Justice Board when placing young people in custody. I am sure that that will be very much a factor. Furthermore, there will be visits as well as technology.

I recognise what lies behind these amendments. I acknowledge the very real concern of noble Lords about young people, whether they are under-15s, girls or more widely, but we genuinely believe that we have sufficient flexibility in the system. We do not think that these requirements should find themselves into law. I ask the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I shall be brief. If the proposal goes ahead, which it might, we will end up with two groups of about 40 young people, boys and girls, from all over the country, in one central location and in an establishment where the vast majority of young offenders, as we have heard from the chief inspector, will be extremely vulnerable and very difficult. The whole atmosphere of the place cannot be compartmentalised in the way in which the noble Lord describes. It is not a satisfactory outcome and I wish to test the opinion of the House.

18:35

Division 1

Ayes: 186

---

Labour: 124
Crossbench: 41
Liberal Democrat: 9
Independent: 3
Conservative: 2
Democratic Unionist Party: 1

Noes: 185

---

Conservative: 129
Liberal Democrat: 50
Ulster Unionist Party: 2
Crossbench: 2

18:49

Amendment 110 not moved.

Amendment 111

Moved by

[Lord Ramsbotham]

111: Clause 32, page 32, line 17, leave out from “43” to end of line 18 and insert “may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament”

[Lord Ramsbotham]

I wish to test the opinion of the House.

18:50

Division 2

Ayes: 178

---

Labour: 123
Crossbench: 36
Liberal Democrat: 9
Independent: 4
Democratic Unionist Party: 1
Bishops: 1

Noes: 191

---

Conservative: 132
Liberal Democrat: 50
Crossbench: 5
Ulster Unionist Party: 2

19:02

Amendment 111A not moved.

Amendments 112 and 113

Moved by

[Lord Faulks]

112: Before Schedule 5, insert the following new Schedule—
ScheduleMutual recognition of driving disqualification in UK and Republic of IrelandPart 1Further provisionCrime (International Co-operation) Act 2003 (c. 32)1 Chapter 1 of Part 3 of the Crime (International Co-operation) Act 2003 (EU Convention on driving disqualifications) is amended as follows.
2 (1) Section 54 (road traffic offences in UK: application of section 55) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), after “Schedule 3” insert “or Part 1 of Schedule 3A”, and(b) in paragraph (b), for “that Schedule” substitute “Schedule 3 or Part 2 of Schedule 3A”.(3) For subsection (3) substitute—
“(3) The minimum period is—
(a) for an offence mentioned in Part 2 of Schedule 3 in relation to which the Secretary of State has by regulations specified a period of less than six months, that period;(b) for an offence mentioned in Part 2 of Schedule 3A in relation to which the Department has by regulations specified a period of less than six months, that period;(c) for any other offence, a period of six months.”(4) After that subsection insert—
“(3A) When determining whether the period of disqualification in respect of an offence mentioned in Part 2 of Schedule 3 is not less than the minimum period, an extension period imposed under any of the following is to be disregarded—
(a) section 35A or 35C of the Road Traffic Offenders Act 1988;(b) section 248D of the Criminal Procedure (Scotland) Act 1995;(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.(3B) When determining whether the period of disqualification in respect of an offence mentioned in Part 2 of Schedule 3A is not less than the minimum period, an extension period imposed under any of the following is to be disregarded—
(a) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6));(b) Article 40A of the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10));(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).”(5) After subsection (5) insert—
“(6) The Secretary of State may by regulations amend Schedule 3.
(7) The Department may by regulations amend Schedule 3A.”
3 (1) Section 55 (duty to give notice to foreign authorities of driving disqualification of a non-UK resident) is amended as follows.
(2) For the heading substitute “Duty to give notice to Republic of Ireland of UK driving disqualification”.
(3) In subsection (1), for “the State in which the offender is normally resident” substitute “the Republic of Ireland”.
(4) In subsection (2)(f), for “the convention on driving disqualifications” substitute “the specified agreement on driving disqualifications”.
(5) In subsection (9)—
(a) in paragraph (b), for “the State mentioned in subsection (1)” substitute “the Republic of Ireland”, and(b) for “the convention on driving disqualifications” substitute “the specified agreement on driving disqualifications”.4 For the italic heading before section 56 substitute “Road traffic offences in Republic of Ireland”.
5 (1) Section 56 (road traffic offences in Republic of Ireland: application of section 57) is amended as follows.
(2) For subsection (2) substitute—
“(2) The driving disqualification condition is met—
(a) in relation to an offence mentioned in Part 1 of Schedule 3B, if the offender is disqualified in the Republic of Ireland as a result of the offence; (b) in relation to an offence mentioned in Part 2 of that Schedule, if the offender is disqualified in the Republic of Ireland for a period not less than the minimum period as a result of the offence.”(3) In subsection (3)—
(a) for “a State” substitute “the Republic of Ireland”,(b) for “in that State” substitute “there”, and(c) for “the law of that State” substitute “the law of the Republic of Ireland”.(4) For subsection (4) substitute—
“(4) The minimum period is—
(a) for an offence in relation to which the Secretary of State has by regulations specified a period of less than six months, that period;(b) for any other offence, a period of six months.”(5) Omit subsection (5).
(6) In subsection (6), for “the part of the United Kingdom in which the offender is normally resident” substitute “the relevant part of the United Kingdom”.
(7) After that subsection insert—
“(6A) In subsection (6), “the relevant part of the United Kingdom” means—
(a) where the offender was normally resident in the United Kingdom when convicted, the part of the United Kingdom in which the offender was normally resident at that time;(b) where the offender was not normally resident in the United Kingdom when convicted but held a Great Britain licence or a Northern Ireland licence, the part of the United Kingdom in which the offender was last normally resident before conviction.”(8) Omit subsection (7).
(9) In subsection (8)—
(a) for “treating” substitute “about when”,(b) after the first “United Kingdom” insert “are to be treated for the purposes of this section”, and(c) for “a member state other than the United Kingdom” substitute “the Republic of Ireland”.(10) After subsection (9) insert—
“(10) The Secretary of State may by regulations amend Schedule 3B.”
6 (1) Section 57 (recognition in United Kingdom of foreign driving disqualification) is amended as follows.
(2) In the heading, for “foreign” substitute “Republic of Ireland”.
(3) In the following provisions, for “the foreign disqualification” substitute “the Republic of Ireland disqualification”—
(a) subsection (1)(a);(b) subsection (2) (in both places);(c) subsection (4)(b);(d) subsection (5)(b);(e) subsection (6);(f) subsection (8) (in both places).(4) In subsection (1)(a) and (b), for “one month” substitute “three months”.
(5) In subsection (2)(b), for “the State in which the offender was convicted” substitute “the Republic of Ireland”.
(6) In subsection (3)—
(a) for “a State” substitute “the Republic of Ireland”, and(b) for “in that State” substitute “there”.7 In section 58(1)(a) and (b) (notice under section 57), for “the foreign disqualification” substitute “the Republic of Ireland disqualification”.
8 (1) Section 63 (production of licence: Great Britain) is amended as follows.
(2) In subsection (4), for “the competent authority of the relevant State” substitute “the competent authority of the Republic of Ireland or the Department”.
(3) Omit subsection (5).
9 (1) Section 64 (production of licence: Northern Ireland) is amended as follows.
(2) In subsection (4), for “the competent authority of the relevant State” substitute “the competent authority of the Republic of Ireland or the Secretary of State”.
(3) Omit subsection (5).
10 In section 65(3) (production of licence: Community licence holders), for the words from “the same” to the end substitute “the Republic of Ireland”.
11 In section 68 (endorsement of licence: Great Britain), for subsection (1) substitute—
“(1) This section applies where a person who—
(a) is normally resident in Great Britain, or(b) is not normally resident in Great Britain but holds a Great Britain licence,is disqualified by virtue of section 57.”12 In section 69 (endorsement of licence: Northern Ireland), for subsection (1) substitute—
“(1) This section applies where a person who—
(a) is normally resident in Northern Ireland, or(b) is not normally resident in Northern Ireland but holds a Northern Ireland licence,is disqualified by virtue of section 57.”13 In section 70(1) (duty of appropriate Minister to inform competent authority)—
(a) for “any State” substitute “the Republic of Ireland”, and(b) for “the convention on driving disqualifications” substitute “the specified agreement on driving disqualifications”.14 (1) Section 72 (regulations: Great Britain) is amended as follows.
(2) In subsection (2), at the end insert “, subject to subsection (2A)”.
(3) After subsection (2) insert—
“(2A) A statutory instrument containing regulations under section 54(6), 56(10) or 71A may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
15 (1) Section 73 (regulations: Northern Ireland) is amended as follows.
(2) In subsection (2), at the end insert “, subject to subsection (2A)”.
(3) After subsection (2) insert—
“(2A) Regulations made under section 54(7) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.”
16 (1) Section 74(1) (interpretation) is amended as follows.
(2) For the definition of “central authority” substitute—
““central authority” means an authority designated by the Republic of Ireland as a central authority for the purposes of the specified agreement on driving disqualifications;”.(3) For the definition of “competent authority” substitute—
““competent authority” means an authority which is a competent authority in relation to the Republic of Ireland for the purposes of the specified agreement on driving disqualifications;”.(4) Omit the definition of “the convention on driving disqualifications”.
(5) In the definition of “disqualified”, after “and” insert “, except in section 71A,”.
(6) Omit the definition of “foreign disqualification”.
(7) At the end insert—
““Republic of Ireland disqualification” means the disqualification mentioned in section 56;“Republic of Ireland licence” means a licence to drive a motor vehicle granted under the law of the Republic of Ireland, including a learner permit.”17 In section 74(2) (interpretation of references to disqualification for life), for “foreign disqualification” substitute “Republic of Ireland disqualification”.
18 In section 74, at the end insert—
“(3) For the purposes of this Chapter, an individual is normally resident in, or in a part of, the United Kingdom, in Great Britain, in Northern Ireland or in the Republic of Ireland if his or her normal residence, as defined in Article 12 of Directive 2006/126/EC of the European Parliament and of the Council of 20th December 2006 on driving licences, is there.”
19 (1) Schedule 3 (offences for the purposes of section 54) is amended as follows.
(2) In the heading, at the end insert “: Great Britain”.
(3) In paragraph 1, for sub-paragraph (2) substitute—
“(2) “Driver” has the same meaning as in the Road Traffic Act 1988.”(4) In paragraph 2, omit “or Article 43(1) of the Road Traffic Regulation (Northern Ireland) Order 1997 (S.I. 1997/276 (N.I. 2))”.
(5) In paragraph 3—
(a) omit “or Articles of the Road Traffic (Northern Ireland) Order 1995”,(b) in sub-paragraph (a), omit “or Article 9”,(c) in sub-paragraph (b), omit “or Article 10”,(d) in sub-paragraph (c), omit “or Article 12”,(e) in sub-paragraph (d), omit “or Article 14”,(f) in sub-paragraph (e), omit “or Article 15”,(g) in sub-paragraph (f), omit “or Article 16”,(h) in sub-paragraph (g), omit “or Article 17”, and(i) in sub-paragraph (h), omit “or Article 18”.(6) In paragraph 5, omit “or Article 167(1) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1))”.
(7) In paragraph 6, omit “or Article 175(2) of the Road Traffic (Northern Ireland) Order 1981”.
(8) In paragraph 7(a), omit “or Part 1 of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10))”.
20 After Schedule 3 insert—
Schedule 3AOffences for the purposes of section 54: Northern IrelandPart 1Offences where order of disqualification for a minimum period unnecessary1 (1) Manslaughter by the driver of a motor vehicle.
(2) “Driver” has the same meaning as in Article 2(2) of the Road Traffic (Northern Ireland) Order 1995 (S.I. 1995/2994 (N.I. 18)).
2 An offence under Article 168A(1)(c) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) (driving while disqualified).
3 An offence under Article 175(2) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) (failing to stop after accident and give particulars or report of accident).
4 An offence under any of the following Articles of the Road Traffic (Northern Ireland) Order 1995 (S.I. 1995/2994 (N.I. 18))—
(a) Article 9 (causing death or grievous bodily injury by dangerous driving),(b) Article 10 (dangerous driving),(c) Article 11A (causing death or grievous bodily injury by careless or inconsiderate driving),(d) Article 12 (careless, and inconsiderate, driving),(e) Article 12B (causing death or grievous bodily injury by driving: unlicensed, disqualified or uninsured drivers), (f) Article 14 (causing death or grievous bodily injury by careless driving when under the influence of drink or drugs),(g) Article 15 (driving, or being in charge, when under the influence of drink or drugs),(h) Article 16 (driving, or being in charge, of a motor vehicle with alcohol concentration above prescribed limit),(i) Article 17 (failing to provide a specimen of breath for a breath test), or(j) Article 18 (failing to provide a specimen for analysis or laboratory test).5 An offence under Article 43(1) of the Road Traffic Regulation (Northern Ireland) Order 1997 (S.I. 1997/276 (N.I. 2)) (exceeding speed limit).
Part 2Offences where order of disqualification for a minimum period necessary6 An offence which—
(a) is mentioned in Part 1 of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10)), but(b) is not an offence mentioned in Part 1 of this Schedule.”21 After Schedule 3A insert—
Schedule 3BOffences for the purposes of section 56: Republic of IrelandPart 1Offences where order of disqualification for a minimum period unnecessary1 An offence arising from—
(a) reckless or dangerous driving, whether or not resulting in death, injury or serious risk,(b) wilful failure to carry out the obligations placed on drivers after being involved in road accidents,(c) driving a vehicle while under the influence of alcohol or other substances affecting or diminishing the mental and physical abilities of a driver,(d) refusal to submit to alcohol and drug tests,(e) driving a vehicle faster than the permitted speed, or(f) driving a vehicle while disqualified.Part 2Offences where order of disqualification for a minimum period necessary2 An offence arising from conduct which is a road traffic offence that is not mentioned in Part 1 of this Schedule.”
Coroners and Justice Act 2009 (c. 25)22 In Schedule 21 to the Coroners and Justice Act 2009 (consequential amendments), omit paragraph 93 (uncommenced amendment of section 54 of the Crime (International Co-operation) Act 2003).
Part 2Transition from EU Convention to new agreementTransitional period23 In this Part of this Schedule, “the transitional period” means the period—
(a) beginning with 1 December 2014, and(b) ending with the day before the first day on which—(i) section (Mutual recognition of driving disqualification in UK and Republic of Ireland)(2) to (5) are in force,(ii) the Secretary of State has specified an agreement under section 71A of the Crime (International Co-operation) Act 2003 (“the 2003 Act”), and(iii) that agreement has entered into force.Disapplication of duties and powers to give notices during the transitional period24 During the transitional period, the Secretary of State and the Department of the Environment in Northern Ireland—
(a) are not required to give a notice under section 55 of the 2003 Act (duty to give notice to foreign authorities of driving disqualification of a non-UK resident),(b) are not required or permitted to give a notice under section 57 of the 2003 Act (recognition in United Kingdom of foreign driving disqualification), and(c) are not required to give reasons under section 70(3) of the 2003 Act (duty to give reasons for not giving a notice under section 57).25 Paragraphs 23 and 24 are to be treated as having come into force on 1 December 2014.
Application of duties and powers to give notices after the transitional period26 After the end of the transitional period, the Secretary of State and the Department of the Environment in Northern Ireland—
(a) are required to give a notice under section 55 of the 2003 Act (duty to give notice to foreign authorities of driving disqualification of a non-UK resident),(b) are required or permitted to give a notice under section 57 of the 2003 Act (recognition in United Kingdom of foreign driving disqualification), and(c) are required to give reasons under section 70(3) of the 2003 Act (duty to give reasons for not giving a notice under section 57), only in a case in which the offence referred to in section 54(1) or 56(1) of the 2003 Act was committed after the end of the transitional period.Saving for pre-1 December 2014 cases27 The amendments made by section (Mutual recognition of driving disqualification in UK and Republic of Ireland) and Part 1 of this Schedule do not have effect in relation to a case in which a notice was given to an offender under section 57 of the 2003 Act before 1 December 2014.”

113: Before Schedule 5, insert the following new Schedule—
ScheduleDisclosing private sexual photographs or films: providers of information society servicesEngland and Wales service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales (an “E&W service provider”).
(2) Section (Disclosing private sexual photographs and films with intent to cause distress) applies to an E&W service provider who—
(a) discloses a photograph or film in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who discloses a photograph or film in England and Wales.(3) In the case of an offence under section (Disclosing private sexual photographs and films with intent to cause distress), as it applies to an E&W service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, and(b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section (Disclosing private sexual photographs and films with intent to cause distress) may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section (Disclosing private sexual photographs and films with intent to cause distress) in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and(b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section (Disclosing private sexual photographs and films with intent to cause distress) in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it.(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section (Disclosing private sexual photographs and films with intent to cause distress) in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided—
(a) that it consisted of or included a private sexual photograph or film,(b) that it was provided without the consent of an individual who appears in the photograph or film, or(c) that the disclosure of the photograph or film was provided with the intention of causing distress to that individual.(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Disclose” and “photograph or film” have the meanings given in section (Meaning of “disclose” and “photograph or film”).
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”,(4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales or an EEA state—
(a) a service provider is established in England and Wales, or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales, or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.”

Amendments 112 and 113 agreed.

Schedule 5: Secure colleges etc: further amendments

Amendments 114 to 117

Moved by

[Lord Faulks]

114: Schedule 5, page 95, line 1, after “In” insert “the English language text of”

115: Schedule 5, page 95, line 4, at end insert—
“( ) In the Welsh language text of that provision—
(a) for “Goron na” substitute “Goron,”, and(b) after “cyfarwyddwr)” insert “na phennaeth coleg diogel”.”

116: Schedule 5, page 95, line 5, after “In” insert “the English language text of”

117: Schedule 5, page 95, line 7, at end insert—
“( ) In the Welsh language text of that provision, in the definition of “llety cadw ieuenctid”, after paragraph (b) insert—
“(ba) coleg diogel;”.”

Amendments 114 to 117 agreed.

Amendments 117A and 117B not moved.

Schedule 6: Contracting out secure colleges

Amendment 118

Moved by

[Lord Ramsbotham]

118: Schedule 6, page 95, line 18, at end insert—
“(2A) No contract may be entered into under sub-paragraph (1) until the Secretary of State has, by regulations made by statutory instrument, specified the criteria to be applied in the selection of such contractors.
(2B) A statutory instrument containing regulations under sub-paragraph (2A) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Ramsbotham]

My Lords, I will be brief because much of what I am going to say has already been said, particularly in relation to the criteria. I would like to raise two points. First, I am concerned about the criteria, about which we know nothing, relating to the selection of application for contractors. I remind the House that there used to be in the Ministry of Defence every year an exercise called “basket weaving”. The Secretary of State laid down precisely what was to be done, and then the Treasury produced the money. Then the staffs had to look at the money that had been provided and see whether it allowed the Secretary of State’s direction to be delivered. Invariably, there was not enough money, so people listed in different baskets what was essential to have to carry out the task, what would be desirable to have and what would be nice to have. Those three baskets were then presented to Ministers, who were invited to decide what should not be done because the funding was not available, or to go and ask for more money. That was the decision that they had to take.

The reason I tabled this amendment is that we do not know what it is that the Secretary of State is requiring the contractors to provide, not least in the provision of the specialist staff, whom many noble Lords have mentioned today in connection with looking after this group of younger people. Therefore, my reason for putting down the amendment was to encourage the Government to release these criteria so that we know, and the taxpayer then knows, and can therefore judge, what is actually missing when the contractor puts in their bid. We will not have any say over the bid, but it would be very interesting to know what parts of the original intention could not be provided for these young people because of funding.

My second point relates to a practicality of the delivery of the sort of thing that I know the Minister intends in the secure college. In 1966, the Army’s secondary school in Hohne, in Germany, was achieving remarkable results with children who came or left throughout the term, to and from schools almost anywhere in the world because of the movement of their fathers. When I asked the headmaster the secret of his success, he said that he ran a comprehensive school: every pupil was assessed for their ability in different subjects, and their daily programme was dictated by their ability: top form in maths, bottom in English and so on. When I told him that if that was comprehensive education, I was all for it, he warned me not to hold my breath because streaming by talent was frowned on in England. It worked, because motivated, compliant children got themselves to and from their programmed classes—a total impossibility both in security and in practical terms with the cohort that is likely to be in custody in a secure college. Has anyone thought through the practicalities of limited staff numbers trying to conduct 320 difficult, disruptive and damaged children with fragile motivation and questionable compliance to and from 30 hours of unspecified education, plus myriad other health and social care requirements on this cramped site?

I include that, first of all, as an example of what might be done with all of these children with different needs and problems, as to how to get them to go to where it is most appropriate; but also because I am concerned that this House has not yet had the criteria on which the judgment should be based as to which bid is going to be able to meet them. I strongly support the amendment in the name of the noble Lord, Lord Beecham, about limiting the contract to five, rather than 10, years because I believe that to tie future Governments for 10 years to this proposal—with all that has been said about it around the House today—is several years too long. I beg to move.

[Lord Beecham]

My Lords, I support the amendment of the noble Lord, Lord Ramsbotham. My amendment is designed to avoid the situation that appears to be arising in relation to the awarding of contracts for the probation service. I do not know whether the Minister is in a position to confirm this or not, but it is said that the Government are deliberately proceeding with 10-year contracts for the outsourcing of that service, on the basis that, should a future Government decide to change the system, they would have, in effect, to pay up for the whole of the 10 years. In other words, it is really binding the hands of a future Government—in financial terms, if not necessarily in legal ones—in a way that is quite unacceptable. It would be quite wrong—perhaps, one could argue, even more wrong—to do so in this case, with a completely untried institution being set up. Whether or not that ultimately proves successful, in principle it would be entirely wrong. Five years is a perfectly adequate period within which to assess the merits of the proposal; that is, five years of operation, not just five years in chronological time, because the Minister has indicated that if the matter goes ahead, it will not be built until 2017. I hope that the Minister will accept both amendments, particularly the one in my name.

[Lord Faulks]

My Lords, I am grateful to both noble Lords who have spoken to these amendments relating to the contracting out of secure colleges. I recognise that at the heart of these amendments is an appetite to know more about the Government’s plans for the secure college pathfinder, which is to open in 2017, as the noble Lord, Lord Beecham, accurately said. Notwithstanding this understandable curiosity, I am concerned that the effect of these amendments would be to limit substantially the ability of the Secretary of State to secure both innovation and value for money from prospective operators of secure colleges.

The noble Lord, Lord Ramsbotham, quite rightly described some of the educational challenges that will exist in relation to this cohort of young people. Of course, they exist now, albeit in different custodial establishments. There is nothing new about the challenge; the question is how you meet the challenge.

Amendment 118 proposes that the selection criteria for secure college operators should be set out in regulations, and that these regulations should be debated and approved by both Houses of Parliament. Noble Lords are aware of our desire to invite innovation in the provision of services to educate and rehabilitate young offenders in secure colleges, and in our view this amendment would undermine that ambition.

Similarly, Amendment 119 proposes a statutory limit of five years on the life of a contract for the operation of a secure college. Again, this would constrain providers in their ability to deliver efficiencies and improved outcomes, potentially undermining the very goals secure colleges seek to achieve. Of course, the Government are ever mindful of expense and this limitation would run counter, we suggest, to the interests of obtaining a satisfactory contractual relationship. It is important to stress that no such constraints apply to the Secretary of State’s powers to commission any other form of custodial provision, and we do not believe that they are appropriate here.

Our intention is to launch a competition next year for an operator of the pathfinder secure college. We will set out our expectations of providers in an operating specification and we will inform bidders of the criteria against which they and their proposals will be evaluated. We will then enter into a period of dialogue with bidders. The dialogue process will be a critical phase of the competition as it will allow us to refine our specification in light of the types of innovation suggested by bidders. I do not want to repeat what is already in the consultation rules that noble Lords will have seen but noble Lords will be aware of what we seek to achieve in terms of blocks of education.

In some areas of secure college provision, such as those identified for inclusion in the rules, the Government will want to clearly specify their requirements; in others, however, we will want to create a degree of flexibility for the experience and expertise of bidders to propose new ways of delivering services and improving outcomes for young offenders. I am sure that all noble Lords would agree that we need to improve those existing outcomes. Requiring the criteria by which an operator will be selected to be set out in secondary legislation would, I fear, both delay and hamper the established processes for procuring services that meet the Government’s expectations.

I hope it reassures noble Lords that we are working closely with the Youth Justice Board as we plan for the opening of the pathfinder secure college in 2017. Its expertise in commissioning custodial services for young people will directly inform both the operating specification issued to the market and the criteria by which successful bidders are to be identified.

To answer the question that the noble Lord, Lord Ramsbotham, effectively posed—how will you assess the bids for the operation of the pathfinder secure college?—we will use a structured and objective evaluation process to identify the most economically advantageous tender. It will involve separate evaluation of the quality of the solutions and price; it will be conducted by a range of personnel with relevant experience—as I indicated, the YJB and the MoJ have extensive experience of objectively and robustly assessing operational service bids—and bids that fail to meet the prescribed minimum acceptable threshold level of the evaluation will be put aside and not considered further.

I understand why the noble Lord, Lord Ramsbotham, would seek more detail than I am giving him but I hope that by outlining the process, and by the words I have used to describe it, he will understand why the Government are unable to accept his amendment. I hope he is reassured about the process by which secure college operators will be selected and will feel able to withdraw his amendment.

19:15

[Lord Ramsbotham]

My Lords, I am grateful to the Minister once again for the courtesy, care and attention he has paid to giving an answer, which, I must admit, was fuller and more reassuring than I had originally hoped.

I hope, however, that during this process between now and 2017 the same spirit of engagement between the Ministry of Justice, the Youth Justice Board and Members of both Houses will continue. As I am sure the Minister has detected, there is considerable interest, not just in the introduction of the secure college but in its method; we are particularly concerned about its ability to deal with these people.

The noble Lord mentioned the fact that staff move people around on sites but I am sure he reflects that very often the inertia in the day’s programme that prevents vast amounts of it being delivered is caused by trying to get people around a site and the problems that staff have in moving one lot while another lot have to stand fast, and so on. These are practicalities. If the complexity of the large site and keeping many groups separate is anything to go by, this is something that ought to be taken into account. Anyway, accepting the reassurances of the Minister, I withdraw the amendment.

Amendment 118 withdrawn.

Amendments 119 to 120B not moved.

Amendment 121

Moved by

[Lord Beecham]

121: Schedule 6, page 97, line 28, leave out paragraph 10 and insert—
“10 Secure college rules may only authorise the use of reasonable force on children—
(a) as a last resort;(b) for the purposes of preventing harm to the child or others; and(c) to the extent that the minimum force necessary should be used.”

[Lord Beecham]

I wish to test the opinion of the House.

19:18

Division 3

Ayes: 90

---

Labour: 64
Crossbench: 18
Liberal Democrat: 3
Independent: 2
Democratic Unionist Party: 1

Noes: 127

---

Conservative: 98
Liberal Democrat: 23
Crossbench: 5
Ulster Unionist Party: 1

19:30

Amendment 122

Moved by

[Lord Faulks]

122: Schedule 6, page 103, line 6, at end insert—
“Prison Act 1952 (c. 52)27A In section 52 of the Prison Act 1952 (exercise of power to make rules etc), after subsection (3) insert—
“(4) A statutory instrument containing rules under section 47 or 47A is subject to annulment in pursuance of a resolution of either House of Parliament, subject to subsection (5).
(5) A statutory instrument containing rules under section 47 that (whether alone or with other provision)—
(a) authorise a secure college custody officer performing custodial duties at a secure college to use reasonable force, or(b) otherwise make a substantive change to the circumstances in which such an officer is authorised to do so,may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament. (6) In subsection (5), “secure college custody officer” has the same meaning as in Schedule 6 to the Criminal Justice and Courts Act 2014.”
Criminal Justice Act 1967 (c. 80)27B Omit section 66(4) of the Criminal Justice Act 1967 (exercise of powers to make rules under sections 47 and 47A of the Prison Act 1952).”

Amendment 122 agreed.

Consideration on Report adjourned until not before 8.31 pm.

Northern Ireland: Haass Talks

Wednesday 22nd October 2014 Lords Chamber

Question for Short Debate

19:31

Asked by

[Lord Dubs]

To ask Her Majesty’s Government what steps they intend to take, together with the government of the Republic of Ireland and the Northern Ireland political parties, in reaching and implementing an agreement on dealing with the past in Northern Ireland, building on the draft conclusions of the Haass talks.

[Lord Dubs (Lab)]

My Lords, earlier this week, I attended a plenary of the British-Irish Parliamentary Assembly, and we spent last Monday visiting the World War I battlefields in Flanders, especially the graves of so many soldiers who died, including thousands of Irishmen who had volunteered to serve in the British Army. It was a very moving day, especially the ceremony at the Menin Gate at 8 pm that evening.

One of the places that we visited was the Island of Ireland Peace Park and Tower. At that place is a peace pledge from which I wish to quote briefly. It states:

“As Protestants and Catholics, we apologise for the terrible deeds we have done to each other and ask forgiveness. From this sacred shrine of remembrance, where soldiers of all nationalities, creeds and political allegiances were united in death, we appeal to all people in Ireland to help build a peaceful and tolerant society. Let us remember the solidarity and trust that developed between Protestant and Catholic Soldiers when they served together in these trenches”.

That is just an extract from the pledge.

I welcome this opportunity to draw attention to the Haass proposals, which cover parades, flags and dealing with the past. It is really too wide an area for this short debate, so I thought it better to concentrate on just one of these issues; namely, dealing with the past. I should pay tribute to the Eames-Bradley report and the noble and right reverend Lord, Lord Eames, for the part that they played in preparing the way for the Haass proposals. Indeed, I am sorry that the Eames-Bradley report did not get more attention at the time; it certainly deserved to. It is essential that the people of Northern Ireland should be helped to come to terms with the past, which still weighs heavily on them.

Much progress has of course been made in Northern Ireland since the Good Friday and St Andrews agreements, but the peace is still not solidly based and it is important to make progress on the outstanding issues. Indeed, I go so far as to say that the Good Friday agreement at this time looks vulnerable and fragile. Even at Stormont, the parties could not agree on appointing a new Speaker, having previously said that they would do so. It is a difficult situation and it is against this background that the Belfast talks started last Thursday. Does the Minister have any news about those talks? Will they consider the past and will there be some opportunity to learn more about what is happening there? It is clear that hopes rest heavily on those talks.

As I said, the Good Friday agreement led to the institutions and they have worked pretty well, but I believe that they are now distinctly fragile. Will the Minister confirm what would be the consequence of a collapse in the institutions? Does she feel that there are still people in Northern Ireland, some with considerable influence, who act as if they would not mind if the Executive collapsed? Does she agree that plan B—if one can call it that—would be joint rule by the British and Irish Governments with the strong likelihood of further elections? That would be a dire outcome, so it is even more essential that we do all we can to protect the Good Friday agreement and what it meant for the people of Northern Ireland.

I appreciate that there are other problems in giving effect to the Haass proposals—the Minister will no doubt mention that of the welfare cuts, which I put down as one of the issues that will have to be resolved—yet on the positive side, a few years ago, we had the Saville report on the events on Bloody Sunday. That at the time represented an important step forward—I think that it still is an important step forward— particularly as the Prime Minister endorsed it so warmly. However, that is only one aspect of the past and there are many unresolved issues. Haass represents the chance of moving forward. Have the Government yet endorsed the Haass recommendations? I do not think that they have. I wonder whether the Minister would be prepared to endorse them as a good way forward to encourage the Northern Ireland parties to act on them.

Let us look briefly at some of the proposals. Of course, essential should be support for victims and survivors, and there should be a strengthening of the Victims and Survivors Service that was established in 2012. There has been a suggestion that the commissioner should be encouraged to establish a mental trauma service. So many people in Northern Ireland have been severely damaged as a consequence of the Troubles. Anything that would help them as regards their mental well-being could only be a good thing.

A key proposal in the Haass report is to establish a historical investigations unit, which could on occasion refer cases to Public Prosecution Service. That unit would embrace some of the existing institutions and bring them together. If the Haass report is to be given effect to, it would certainly be a much more powerful weapon than we have at the moment. There should also be an independent commission for information retrieval.

To acknowledge the past must be difficult. It is fairly easy at this distance to say, “Get on with it and do it”, but I fully understand how difficult it must be for everyone involved in Northern Ireland to acknowledge some of the things that happened in the past. It is a very difficult psychological process. So many people experienced pain and loss during the conflict. For many, there has been no closure or comfort to date. Haass states:

“Some deaths can be attributed to state actors; the overwhelming majority, however, were caused by paramilitary organisations … For the vast majority of … people, there has been little in the way of closure or comfort; more than 3,000 conflict-related deaths were never solved”.

I shall not list all those deaths—there were many—but I happened to meet some time ago the families from Ballymurphy, scene of one of the painful episodes of the Troubles. As far as I know, there is no further process at the moment to look into what happened there. When I met the families, I said, “We can’t have another 10-year inquiry. It’s got to be much quicker than that, otherwise nobody will accept it”. I think that they agreed with that. Those families whom I met, and they may not be typical of everyone, said that all they wanted was for the truth to come out—no more or less than that. That seems very simple. It may be that other people want more than that; they may want action against people whom they see as the perpetrators. That becomes a more difficult process, because it undermines the way in which evidence can be collected. I was also assured that a lot of the evidence was in existence. Ballymurphy is only one of many incidents which need to be looked at.

In general, conflict situations are difficult to resolve, as we know. If no progress is made, it almost means that the process starts going backwards. It is clear that leadership is needed from all the parties on the Executive. The British Government together with the Irish Government can nudge the process on. We cannot solve it, because so many of the issues are devolved, although not all of them. For our part, if the House reports come to a positive conclusion, there will have to be some UK legislation as well coming through this House and the Commons. As I understand the position, we would need some legislation to deal with some of the issues raised by Haass. So I hope that that will also be possible.

There also needs to be the most widespread possible consultation in Northern Ireland. Just imposing a solution on them would simply not be acceptable. We have to bring the people of Northern Ireland with us in this process or the Northern Ireland Executive and politicians have to bring their people with them, and give the victims a chance to express their views and to comment specifically on any proposals.

I was in Northern Ireland as a junior Minister for two years, leading up to the Good Friday agreement and beyond. I always said to people, “I haven’t been personally affected by the Troubles. Nobody that I know has been affected by the Troubles so it is easier for me and the other Ministers to say hello to everybody and deal with everybody”. None of the backlog of problems affected us so it was easier. I fully understand, however, that for people in Northern Ireland it is a much more difficult situation. Nevertheless, we want that to be the norm in the peace process so that people can express their views and are able to deal with the people who have transgressed.

I believe that the events in Northern Ireland are at a critical stage—very critical. It is essential that the British and Irish Governments use all their influence to persuade the Northern Ireland political parties to move forward—and, I have to say, to do so quickly.

19:41

[Lord Patten (Con)]

My Lords, if incremental terrorism was the root of the problems that we now discuss, then only incremental reconciliation will slowly lay them to rest as both past and pain diminish with time. That is not to say that the recommendations by Dr Haass and that distinguished woman Professor O’Sullivan, his colleague, rightly highlighted by the noble Lord, Lord Dubs, are not worth while in themselves. They make some interesting proposals on commissions for information retrieval and all the rest.

Alas, however, that these proposals could not be generated from within Northern Ireland itself by the Northern Irish. There are only so many steps that our Government can take without them being firmly founded on the engaged consent of the population as a whole rather than the partisan responses to the well meant proposals of fly-by highly talented neutral diplomats, however skilled in peace processes—and however self-effacing—they may be.

Truly it is a sad reflection that there seem to be no home-bred great women or great men in Northern Ireland who can be accepted across the piece to undertake that reconciliation task, gaining that indigenous consent. In that fact is found the real measure of the problem and its likely longevity.

It seems that even the most anodyne suggestions from people without simply act as a lightning conductor to reignite ancient discontents, as we have seen in the reaction to the Haass and O’Sullivan reports—even prompting some again to reach for that pike hidden in the thatch. As with the fiscal, so with the peace process; people in the Province have to get a grip on it themselves and make it work. Just as the resolve will rapidly have to be found within the Province to run itself properly before it runs out of money very shortly by dealing with overspending in Northern Ireland, so reconciliation must come via resolve from within and with time. All that can be done in the mean time is to keep on trying; keep on keeping going until the pace of incremental reconciliation really gathers pace one day, when.

19:43

[Lord Alderdice (LD)]

My Lords, I am grateful to the noble Lord, Lord Dubs, for securing this debate. Given the number of speakers who wish to take the floor, we all have a very short period of time. In a sense that is the important message. All of us in this House who know about Northern Ireland, particularly those of us who live there, wanted to speak tonight because we are worried about the situation. The noble Lord described it as fragile, even perhaps critical. He is absolutely right about that. The situation is deteriorating politically—not so much in security terms at this point, but politically it is extremely serious.

The problem with the Haass process is that people seem to feel that what we needed was a political agreement or a political fix. But that is not the case. It is not a question of bringing forward yet more proposals. The noble and right reverend Lord, Lord Eames, and his colleague Mr Bradley have produced excellent proposals. The problem is not that. It is getting people emotionally as a community to the point where they are prepared to accept them. Although people have signed up for parity of esteem, the truth is that there are many people in the republican and nationalist community who still act as though they were victims rather than as though there were parity of esteem—and there are those in the loyalist and unionist community who act as though they were still dominant, when in fact there is parity of esteem written into the legislation.

The British Government also have a responsibility in this. Devolution did not mean everything and all responsibilities being handed over to people in Northern Ireland. This was a three-stranded process. The British and Irish Governments were the driver for the peace process—making sure that things continued and in the end came to a good conclusion. They retain a responsibility for making sure that it does not all fall to pieces—and, by the way, it is in their interests. If the devolution component of the three strands disappears, we do not end up with direct rule back to Westminster, but with de facto joint authority, with the north-south institutions that are in place remaining in place, but with a responsibility on the part of British Ministers to engage with Irish Ministers. The north-south thing remains with the British-Irish component: so there is a relationship. Indeed, when it comes to security, if those republicans who have engaged in the political process find that it does not work, it will be the most profound encouragement to those republicans who never believed in the political process and will want to return to the pike—perhaps no longer in the thatch, as the noble Lord has referred to.

This is serious. I deeply hope that my noble friend can not just tell me that there is a process under way with the Secretary of State and her opposite number, but show an appreciation of the gravity of the political situation at present. It is serious. If this House does not find a way of encouraging the Government to take it seriously, we will find ourselves back having to deal with some of the really contentious issues that we had desperately hoped were no longer on our plate.

19:46

[Lord Eames (CB)]

My Lords, we frequently hear the phrase that is the headline for this debate: “dealing with the past”. But less frequently do we consider what those words mean. Thirty years of conflict, 3,500 deaths, family life subjected to unbelievable stress, victimhood inflicted on thousands, and memories of loved ones injured and scarred for life, both in uniform and out of it. I speak after more than 40 years of pastoral work in Northern Ireland, 20 of them as Anglican archbishop. The recollection of numerous funerals and the attempts to support broken families will go with me to my grave.

When people talk about dealing with the past, it is much more than statistics that can be dismissed with the stroke of the political pen. It is about faces, voices, tears and frustration: little children deprived of parents. It is about people. Many of those people today ask for justice for themselves or for a loved one. Three thousand unsolved deaths remain to be addressed. They ask for justice, but justice comes in many forms: someone standing in the dock, someone taking responsibility, someone offering an apology—and some simply want to know what happened. I could quote many examples of each of those categories. Above all, they emphasise that foremost in any solution to the past must be the victims and the survivors.

The Consultative Group on the Past, of which I was privileged to be co-chairman, produced the suggestion of a legacy commission that would combine the elements of reconciliation, investigation and storytelling. It should last for five years and it should bring a form of closure to dealing with the past. We presented that blueprint more than five years ago. Whatever else was rejected in our report, the seeds of a legacy commission remain a talking point today, and indeed have surfaced in one form in the recent Haass proposals.

Northern Ireland is tired of political posturing and endless discredited proposals. Most of its people want to move on and live their lives. Today health, education and jobs are the real issues. However, until and unless there is the political will to deal with the past, our community will lurch from one disclosure, one media speculation and one blame game to another. I beg the Minister to take some of this frustration back to the Government, for I honestly believe that until there is some redress and the political will to address the issues of the tragic past, a lot else will fail.

19:50

[Lord Browne of Belmont (DUP)]

My Lords, I thank the noble Lord, Lord Dubs, for introducing this timely debate and for his supportive interest in Northern Ireland affairs.

I want to make three observations and one plea to the Government. First, it is important to remember how far we have come in Northern Ireland over the past few years. Northern Ireland is a transformed society. The Province is almost unrecognisable from what it was like just a quarter of a century ago. Northern Ireland is a place where people now want to come and to invest, where our young people want to stay and make their lives, and where relative peace and stability are now the norm. That progress has been built on the restoration of devolved powers.

Secondly, we should remember just how slow that progress has been. Though it is now 20 years since the announcement of the first IRA ceasefire and the loyalist ceasefires, and 16 years since the Belfast agreement, it is still only seven years since devolution was restored on a stable and lasting basis—it is fair to say that we never rush these things. So while it is easy to become frustrated with the pace of change, we must not become discouraged. Nor should we have unrealistic expectations about quick solutions to the most difficult issues that have so far eluded us. It is hardly surprising that the issues that have yet to be fully and comprehensively addressed are some of the most difficult. The reality is that it has proved to be easier to share power than to agree what happened in the past.

Thirdly, we should be aware that it is not the problems of flags, parading or the past that currently threaten the process, but the issue of the implementation of the UK coalition Government’s welfare reform policy. It is indeed regrettable that the nationalist parties in the Northern Ireland Assembly have refused to support legislation to implement those reforms.

The cost of this failure to reach consensus, in terms of penalties imposed by the Treasury and IT costs, will quickly increase to hundreds of millions of pounds a year. Given the already constrained fiscal position, cuts of this magnitude would simply not be deliverable and would jeopardize the future viability of devolved government. My party, while opposing aspects of welfare reform in this Parliament, accepts that the parity principle that has served us well in Northern Ireland should be adhered to. In addition, we have proposed to fund from our own budget in Northern Ireland measures designed to alleviate the burden of the reductions in welfare payments on those least able to afford them.

I want to see the parties in Northern Ireland agreeing a way forward on welfare reform. However, if they cannot, my plea to the Government is simple: they must act quickly and, if necessary, legislate in order to save the rest of the devolved settlement. If this issue is not addressed quickly, there will not be a functioning Stormont to consider solutions to other problems, such as the issue of the past.

I trust that in the weeks to come the parties will be given the opportunity and encouragement to find local solutions—but, if they do not, the Government must act to preserve and protect the progress that has been made to ensure that Stormont can continue to function.

19:54

[Lord Lexden (Con)]

This is an extraordinarily timely debate, for which we are all most grateful to the noble Lord, Lord Dubs. Following the restoration of devolution in the Province, there is always a danger that the affairs of this part of our country will slip too far down Westminster’s agenda. A debate such as this helps to ensure that that does not happen. With the whole constitutional order in flux after the Scottish referendum, it is especially important that full attention is given to Northern Ireland’s place in the significant changes that are under consideration to recreate constitutional stability throughout our land.

The need for an agreement on dealing with the past, with which this Motion is concerned, will clearly be at the centre of the cross-party talks that my right honourable friend the Secretary State for Northern Ireland initiated last week. As she stressed, continuing disputes over the truth of what happened during the Troubles, and the deep, still raw grief in both communities, about which the noble and right reverend Lord, Lord Eames, once again spoke so movingly and eloquently, contribute significantly to the difficulty of sustaining the progress that has been made in Northern Ireland, as do disputes over flags and parades. They consume ever-increasing amounts of time and resources, which so badly need to be redirected to securing our fellow countrymen’s and women’s shared future together with the rest of us.

In the last 30 years of the 20th century, all the irreconcilables of Irish history came to dwell in the north. They do not yield readily to the healing processes in which so many fine people, both here and in Northern Ireland, have been engaged and must continue to be engaged until the vital goal of a shared future firmly within the framework of the United Kingdom has been attained.

We are all surely united in wishing the Secretary of State every success in her endeavours. The challenge for her and all the participants in the discussions that are about to take place is to extract from the Haass talks last year the elements that can be incorporated in a firm agreement, along with proposals to settle the increasingly bitter disagreements within the Northern Ireland Assembly over budgetary matters and welfare reform that are tearing it apart. That is a tall order, but the very obduracy of the problems underlines the need to seek every means of reducing them.

As regards the past, we surely need irrefutable concrete evidence on which to base action, and that cannot come solely from official records. There can be no special treatment for one side of the conflict. Everything must be open and nothing concealed. There must be no repetition of the appalling secret scheme that benefited some 200 terrorist suspects under the previous Government and this one. Dealing with the past must not be at the expense of handling current issues, as the Chief Constable of Northern Ireland has rightly warned.

These are some of the principles that might usefully help to guide the discussions that are to unfold. As the draft prepared at the end of the Haass talks states:

“It is clear that the vast majority of citizens and communities wish to live free of the division and enmity that has too often defined this society”.

They are our fellow citizens, our fellow communities. As someone once said: “We are all in this together”.

19:57

[Lord Empey (UUP)]

My Lords, as other Members have stated, we are indebted to the noble Lord, Lord Dubs, whom we all regard as a good friend of Northern Ireland, both as a Minister and as a Member of your Lordships’ House.

Mention has been made of the budget. Never before, despite all the difficulties, have the Northern Ireland Executive failed to balance their books. While welfare reform is a significant part of the difficulty, it is much less than half the financial shortfall that the Executive are facing, so even if welfare reform were resolved, that would not be the solution in itself. Let us not get into the mindset that if this welfare reform issue had not arisen, we would be fine—we would not.

This is the first time ever that we have been in a position to have to come running in the way that the Executive did a few weeks ago. Ironically, the Chancellor of the Exchequer and the Treasury are now in the financial driving seat and conditions have been laid down. A budget for next year is to be agreed by the end of this month, and conditions apply. We describe it as a Wonga result for the Executive, so this is a very sad day.

With regard to the Haass talks, the noble Lord, Lord Patten, is not quite correct to say that a lot of these proposals came from Haass. Haass brought a lot of them together but a lot of them were indigenous proposals from different parties at the talks. I can tell him and the House that, had there been an agreement on the past at the Haass talks in January, a few weeks subsequent to that agreement we would have been left in the ludicrous position of learning about the on-the-runs issue and our credibility with the community would have been reduced to zero. So there is an absence of belief in frankness. There is an absence of belief that we know all that has been and is going on, which is a major consideration.

Of course, if we do not solve the financial problems it is rather irrelevant because devolution will not survive the absence of a financial resolve. That is common sense. Haass, however, in the proposals for a historic inquiries unit meant the establishment of a parallel police force outwith the control of the chief constable. This also meant a hugely costly, open-ended process whereby the state would always be at a disadvantage because it has the records and the paramilitary organisations do not. That imbalance is always there and has to be resolved before there will be any agreement. In the expectation that the Secretary of State’s process were to produce a result, or even not, can the Minister tell the House whether the Secretary of State is prepared to put her proposals to a referendum or to recommend another Assembly election to ratify anything that might emerge from the process?

20:00

[Lord Hylton (CB)]

My Lords, we all know that Northern Ireland is still deeply divided. One has only to look at segregated education and housing, walls separating communities, flags, parades, emblems, unsolved historic crimes and mixed marriages. Tonight’s debate refers to the conclusions of the Haass talks. These seem to be the recommendations of mediators trying to propose rational compromises. The parties may well not accept them because they do not feel they own them. There is a further flaw. The parties get many votes at elections but that does not always mean that the votes reflect the views of most peace-loving citizens. Such people want to get on with their lives. Therefore, they will usually back the least bad candidates. This means that the opinions of civil society, trade unions, business groups and voluntary organisations, including churches, should be taken into account when trying to deal with the most divisive issues. Will the Government do so and, if so, how?

My experience of visiting prisoners, some politically motivated and some not, together with my association with NIACRO and other voluntary groups, makes me think that a method, so far untried, may prove helpful. This is professionally assisted conflict analysis. This can be provided by networks of disinterested individuals, some of whom have built up their expertise in other conflicts. Facilitated analysis looks at the causes, rather than the symptoms, of conflict. It helps participants to focus on win-win solutions, which satisfy real felt needs, especially identity needs. The difficulty is to find the right participants, available for long enough—people who represent significant groups or who can form public opinion.

I have outlined the method of conflict analysis to the Secretary of State and the First and Deputy First Ministers. Some 20 years after the main ceasefires and 16 years after the Belfast agreement, we still face deep divisions. Perhaps it is time to try a new method. I have given notice, and look forward to the Government’s response.

20:03

[Lord Bew (CB)]

My Lords, I, too, thank the noble Lord, Lord Dubs, for securing this important debate. He has always been a great friend to Northern Ireland. I regret that what I have to say will be relatively cautious in the context of so many earlier eloquent speeches. I hope it will not appear negative but I think it is important to register certain points.

One concern is the cost of the Haass proposals. I fully support the Treasury’s decision to make the loan of £110 million and to ease the immediate crisis in the Executive. However, as the noble Lord, Lord Empey, has said, in the context of strict repayment conditions it is very difficult for Northern Ireland to take on board new commitment to public expenditure. If it is true that the Haass proposals amounted to hundreds of millions, that has to be something that we consider carefully. I ask the Minister to give us some help on exactly how costly they might have been. Also, Dr Haass’s proposal outwith the talks when he accepted the Tipperary peace prize for making the Irish language a second official language cannot be, whatever its other merits or demerits, a cost-free proposal.

The other crucial point I want to make is that I have come—I regret to say this because I feel the needs of the victims so strongly and it is such a disappointing thing to say, particularly for those young scholars who want to participate in this process—increasingly to the view that the idea of a shared process of recovery from the past is not a very likely project. It was one I used to strongly and until recently believe in. I have not given up on it completely but I am increasingly sceptical. The unionist community basically believes that the state is responsible for only 10% of deaths, loyalist paramilitaries for 30% and republicans for 60%. They therefore believe that any narrative must reflect the fact that the lion’s share of the killing was carried out by republicans. It is quite straightforward: that is their view of the matter and that is what they want to hear. The republican community, on the other hand, with the support of a large cast of journalists, clerics and NGOs, focuses on broader explanatory factors which emphasise long-term structural factors, discrimination, sectarianism, institutional culpability and collusion. This can sometimes be linked to a broader discourse of human rights, transitional justice and reconciliation. These are two world views you can accept or quote. They are fundamentally opposed. It is hard to see how you can have a shared process when you acknowledge this fact.

Finally, there is the question raised very sharply—it has already been alluded to—by Mr Adams at the weekend when, under pressure, he made an important comment about the Maria Cahill case, which has attracted a lot of attention. It was an alleged rape by a suspected IRA member in 1997. Mr Adams has been under a great degree of media pressure in both the north and the south about this. He said:

“The IRA has long since left the scene so there is no corporate way of verifying”,

what happened in this case. What does this mean for any wider shared process of recovery from the past? The state definitely has a corporate memory but he is now saying the IRA has no corporate memory. It has disappeared. What can this possibly mean for a shared process? These are the reasons for my scepticism. I regret to say these things. I think there are things that the state can do unilaterally and a great deal of consideration should be given to those things, but the shared process seems at this moment, I deeply regret to say, very elusive.

20:07

[Baroness Harris of Richmond (LD)]

My Lords, I, too, am grateful to the noble Lord, Lord Dubs, for securing this debate. All these issues around flags, parades and the past are interrelated and it is very important that they are not considered in isolation from each other. Many of the social problems facing communities in Northern Ireland are either a product of, or are compounded by, sectarian divisions. It is deeply depressing that the divisions that run deep in Northern Ireland’s society have been left alone in the “too difficult to handle” box. Effective and sustainable solutions can come only as part of a shared approach, which acknowledges that disengagement, disaffection and disadvantage affect both communities—loyalists and nationalists.

Building a shared future is the single biggest challenge facing Northern Ireland, and it will not achieve what it should for its citizens, either economically or socially, if this critical issue is not addressed. However, it will not be addressed by tinkering at the edges, by trying to manage the symptoms of the problem or by looking at issues in a piecemeal fashion. Although a critical part of finding a means of dealing with the past, it is only one part of the equation. There is a moral duty to provide justice or some other form of truth and reconciliation to those who were the victims of years of terror, especially those who have been bereaved.

The work done by the noble and right reverend Lord, Lord Eames, and Denis Bradley needs to be taken from the shelf, dusted down and much of it implemented, as it gave a road map for this particularly difficult area. It is crucial that victims are at the centre of any process dealing with the past, because without resolving their issues with openness and integrity, society in Northern Ireland cannot hope to make progress on other issues such as the economy and education. The proposals of Richard Haass and Meghan O’Sullivan went a long way to finding justice and truth for all victims in Northern Ireland, and have provided an opportunity that Northern Ireland cannot afford to miss.

However, underpinning all this must be the matter of security. I have talked many times of the difficulties being placed on the PSNI and make no apology for doing so again. The PSNI has £100 million less for policing this year than last. Patten envisaged an establishment figure of 7,500 police officers in a peacetime scenario. We are still far from that and the PSNI now has only 6,600 officers to deal with the continuing unrest. By the close of 2013, Northern Ireland had witnessed 41 gun and 85 bomb attacks, many of which were targeted at police officers, both on and off duty. Imagine that happening on the mainland. Mainly as a result of public disorder, 820 officers have been injured while policing the flag protests and contentious parades. The ACC stated last week that some of the 84 neighbourhood policing teams across Northern Ireland would have to be closed because of the lack of funds.

Other serious consequential problems arise because of not finding a solution to the budget shortfall. This simply cannot continue. The people of Northern Ireland need a real solution to these issues and to the current impasse on the budget. There is now a fresh opportunity, with the current talks, for politicians there to show real leadership and to work together to deliver shared solutions to shared problems.

20:11

[Lord Kilclooney (CB)]

My Lords, the Belfast agreement provided for a shared Administration of Stormont but, unfortunately, it is now possible for an individual political party to exercise a veto over that shared Administration. It has happened, for example, in welfare reform. We now have a budgetary crisis in Northern Ireland.

The credibility of the Stormont Administration is at a very low level. They have lost respect across the Province. There has been little legislation in that Assembly for the past few years. We have lost Ryanair and John Lewis’s store through a lack of decision. The Belfast agreement itself has not been fully honoured. Even from the outset, the IRA could not call the country “Northern Ireland”. That was the way in which we implemented the Belfast agreement.

The noble Lord, Lord Hylton, is a great supporter of integrated education. We who negotiated the Belfast agreement, and paragraph 13 on rights and equalities, asked the Stormont Administration to promote integrated education. Perhaps the noble Lord does not realise that yesterday the Roman Catholic Church demanded that the Stormont Assembly drop the promotion of integrated education in Northern Ireland. That is a reality.

The Haass recommendations were not popular across Northern Ireland; let us not pretend otherwise. They did not even mention the IRA. The noble Lord, Lord Bew, mentions, quite properly, the cost of the six quangos that were recommended. They were not costed; we do not know what they were going to be. All we know is that the Secretary of State confirmed that they would have to come out of the devolved budget, and not from Westminster.

You could see the hand of the Irish-American lady deputy throughout the entire Haass report. This was a diplomat who spent four years in Iraq abolishing the Iraqi army, sacking all 80,000 civil servants and creating a sectarian constitution in Iraq which has brought us to the chaos we have there.

I am glad that the Secretary of State has confirmed that the Republic of Ireland will not be involved in the internal affairs of Northern Ireland. I say to the noble Lords, Lord Dubs and Lord Alderdice, that it is dangerous to tell the majority community in Northern Ireland that, if devolution ceases, the Republic of Ireland will be involved in the internal affairs of Northern Ireland. That would set off a fire across Northern Ireland, let us not pretend otherwise.

On participation, all parties must be involved in the talks. The political landscape in Northern Ireland has changed in the past four years and 100,000 unionists from the previous election are excluded from these talks while 210,000 are included. If you exclude such a large proportion of unionists from the talks, you are already writing a formula for the talks’ collapse. The way forward must be to address the flags issues immediately. It can be done, it is not impossible; the Flag Institute has confirmed that there is no flag for Northern Ireland. Above all, we must restructure the Stormont Assembly, retaining a cross-community future and providing an Official Opposition, to be fairly funded.

20:14

[Lord McAvoy (Lab)]

My Lords, I join other noble Lords in paying tribute to the noble Lord, Lord Dubs, not only for securing this debate tonight but for his long, positive involvement in Northern Ireland, to which many colleagues have referred. He has a reputation and is extremely well thought of.

Northern Ireland has in recent years made great progress. Peter Robinson and Martin McGuinness must be complimented on attracting compelling inward and foreign direct investment. However, Stormont’s five main parties have failed to make concrete political progress on issues such as flags, parades and the legacy of the Troubles.

I think that this House’s message to all of Northern Ireland is clear. Individuals, politicians and executive leaders have done so much to steer Northern Ireland in the right direction that it would be a calamity if successive years of co-operation led to gridlock. It is essential that the Belfast agreement is fully implemented. Sinn Fein must be encouraged to engage itself in welfare reform, which is obviously going to affect Northern Ireland. Meanwhile, the Democratic Unionist Party and other unionist parties must support other cross-party agreements, such as those in relation to the appointment of a Speaker. If we get into a tit-for-tat situation, we really are in trouble.

In preparing for tonight, I had assistance from a young man called Duncan McEwen. It hit home once again how long the Troubles have been with us when he was able to say that such-and-such an event happened on a day 30 years before he was born. That is another lesson to us: we must do something positive.

In situations such as these, standing still is surely equivalent to moving backwards, antagonism is equivalent to failure and intolerance is equal to that of the past. Working together may not require friendship or even forgiveness, but surely requires mutual respect and a recognition of unavoidable compromise. The construction of the road to peace has not yet been completed. Engineers from all parties must show leadership, tolerance and an ability to accept compromise to oversee its finalisation.

The sombre statement of fact from the noble Lord, Lord Alderdice, about the constitutional position of Northern Ireland if the Assembly were to collapse is absolutely correct. While I might not totally endorse the language of the noble Lord, Lord Kilclooney, such a situation would inevitably be extremely difficult. Such problems have arisen because there is a feeling that the current Government have distanced themselves from Northern Ireland. I call upon the Government to work exhaustively to end the current stalemate and, if appropriate and necessary, to work with the Irish Government to provide a framework for talks, nominating a chair accepted by all parties. I once again thank the noble Lord, Lord Dubs, and ask the Minister to state the Government’s response to this situation.

20:18

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, I thank the noble Lord, Lord Dubs, for his thoughtful speech and for the opportunity he has given us for what has been a high-quality debate on this issue. I thank noble Lords for their participation.

In any debate on Northern Ireland’s troubled past, we must acknowledge the pain and suffering inflicted on so many people. As a Government, we are acutely aware of the many victims of the Troubles in Northern Ireland, many of whom still bear the physical and emotional scars. We must never forget the many thousands who lost their lives, as several noble Lords have mentioned this evening.

This Government believe that it is essential that the Northern Ireland parties find an agreed way forward on how to deal with the past in Northern Ireland. However, we recognise, as have many noble Lords this evening, the challenge that this presents. There have been several attempts to reach agreement and many suggestions put forward. The Eames-Bradley report, in 2009, made a number of recommendations, but it also demonstrated the strength of feeling around this issue. I greatly appreciate the participation of the noble and right reverend Lord, Lord Eames, this evening. More than one noble Lord this evening has referred to the fact that there are issues of great relevance in that report, and things that deserve to be looked at again.

There were also, as many noble Lords have said, the talks led by Dr Richard Haass late last year. Many commentators have remarked that of flags, parades and the past, the past could well be the most difficult issue to resolve. Yet, remarkably, the past was arguably the issue on which the greatest amount of progress was made in those talks. Although an overall agreement proved elusive, much progress was made between the parties. Following those talks, the Government continued to press the Northern Ireland parties to resume their negotiations and find a way forward.

As my right honourable friend the Secretary of State for Northern Ireland has set out clearly, it is our best assessment that the time is now right for a new set of talks on the range of challenges faced in Northern Ireland. Those talks started in Belfast last week, and we have on balance taken encouragement from the approach adopted by the parties thus far. The discussions were serious and businesslike and we hope that all the parties will continue to engage positively in the process.

However, these talks are not and cannot be about the Government intervening to impose solutions on the Northern Ireland parties; they are about helping, supporting and facilitating in order to reach agreement on the issues for which the Northern Ireland parties have primary responsibility. The system of government established under the various agreements enables Northern Ireland’s political leaders to make decisions on local issues.

We are, however, willing to help and support them where we can. The Secretary of State chaired an initial meeting of the parties last week, as well as a number of bilateral meetings. Over the next few weeks the talks will look at a number of issues, including: finance and budgets—including welfare reform, to which noble Lords referred this evening; the working of the Assembly and the Executive; and outstanding commitments of the agreements.

There are many challenges ahead, and the parties are of the view that they cannot resolve these alone, so we will support, guide and facilitate, providing advice where we can. The Secretary of State is leading those discussions and the Irish Government are likewise involved. Consistent with previous talks processes, they are structured according to the three-stranded approach referred to by my noble friend Lord Alderdice.

The talks will also look at another set of issues. The Government have long pressed the parties to reach agreement on the legacy issues of flags, parades and the past. Tomorrow the focus of the talks will be on those issues. The Secretary of State will again emphasise the need for a way forward, because the prize for doing so is immense.

As the noble Lords, Lord Browne and Lord McAvoy, said, Northern Ireland is a society much changed since the dark days of the Troubles. It is a modern, vibrant society with real potential, which has demonstrated its ability to play a major role on the world stage; for example, with the G8 summit. However, the legacy of division looms large in political life, often at the expense of developing the economy and building a shared future. That needs to change.

I will respond to points and questions asked by noble Lords. The noble Lord, Lord Dubs, asked about the consequences of the collapse of the institutions. He is right to suggest that the default position will be that there will be an election. There were resignations so that the institutions could not operate; there must be fresh elections. There are no longer any statutory powers to impose direct rule. It is important that anyone who thinks that the resolution of the current problems faced by the Executive would lie in a short period of direct rule should understand that that is no longer the case. It would prove very difficult indeed to re-establish the institutions if it were necessary eventually to resort to something like that.

In response to the noble Lord’s question on the Haass recommendations, as he knows, some of the parties in the negotiations chaired by Dr Haass endorsed his final proposals. Others did not. The Secretary of State has made it clear that if the parties endorsed recommendations of that sort, we should be prepared to operate them. She has made it clear that a structured approach to the past may be a great advance.

My noble friend Lord Alderdice asked about the situation and emphasised that it is very serious. I say to him that we do not for a moment underestimate the high stakes in the present talks. It is essential that we find a way to ensure that power-sharing in the institutions carries on.

The noble Lords, Lord Browne and Lord Empey, referred to the need for agreement on welfare and the fact that the financial problems facing the Executive are not by any means entirely down to the lack of agreement on welfare. We regard it as essential that the Executive re-establish orderly finances. It is simply not possible for the current situation to continue—it must be addressed.

The noble Lord, Lord Hylton, asked whether the Government would take account of the views of civil society as well as those of the political parties. I am very pleased indeed that the noble Lord raised that issue. We welcome the activity by members of civil society, and by church leaders, in providing leadership at this difficult time. For example, we welcome the work of the Make It Work campaign, which provides a point of focus other than the political parties, which is to be welcomed across society in Northern Ireland. The noble Lord also asked about professionally facilitated conflict analysis. That is certainly an interesting idea, but of course it is something that we would consult the parties on. I emphasise again that this process is led by the political parties and no longer by the British and Irish Governments. We have facilitated, brought them together and are urging them on, but the process has to be undertaken and agreed to by the political parties.

[Lord Kilclooney]

If the process is being led by the political parties, why have the Government therefore excluded the unionist representatives of one-third of the unionist vote in Northern Ireland? Some 100,000 unionist voters are not represented at these talks; 200,000 unionist voters are. That is no formula for success.

[Baroness Randerson]

The parties represented at the talks are those represented within the Executive, and it is important to bear in mind that the talks are going ahead with the agreement of the parties concerned.

I must complete my remarks now. The noble Lord, Lord Empey, referred to the need for an election or a referendum on the outcome of the talks. I will ensure that his point is conveyed to the Secretary of State, but I would point out that there is an election coming up in the near future in any event.

[Lord Empey]

I did not ask for those; I just wondered whether the Minister would be prepared to hold them. I am not advocating them.

[Baroness Randerson]

In that case I misunderstood the noble Lord. I apologise for that. I will of course review the record of the debate, and if there are any outstanding questions that I have failed to answer, I shall ensure that I write to noble Lords on those issues. I thank them for raising such important points this evening.

Criminal Justice and Courts Bill

Wednesday 22nd October 2014 Lords Chamber

Report (2nd Day) (Continued)

20:31

Amendment 122A

Moved by

[The Earl of Listowel]

122A: After Clause 35, insert the following new Clause—
“Lifetime reporting restrictions in criminal proceedings involving children under 18
(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—
“45A Power to restrict reporting of criminal proceedings for lifetime of persons under 18
(1) This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence.
(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person’s name,(b) the person’s address,(c) the identity of any school or other educational establishment attended by the person,(d) the identity of any place of work of the person, and(e) any still or moving picture of the person.(5) In determining whether to make a reporting direction in respect of a person, the court must have regard to—
(a) the welfare of that person,(b) whether it would be in the interests of justice to make the direction, and(c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.(6) A reporting direction may be revoked by the court or an appellate court.
(7) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
(8) The court or an appellate court may only make an excepting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or(b) it is satisfied that—(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and (ii) it is in the public interest to remove or relax that restriction.(9) No excepting direction shall be given under subsection (8)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(10) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
(11) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently, and(b) may be varied or revoked by the court or an appellate court.(12) For the purposes of this section—
(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006.(13) In this section “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal.
(3) In section 49 (offences under Chapter 4)—
(a) after subsection (1) insert—“(1A) This section also applies—
(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court;”, and(b) at the end insert—“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”
(4) In section 50 (defences)—
(a) after subsection (6) insert—“(6A) Where—
(a) a person is charged with an offence under section 49, and(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and
(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”

[The Earl of Listowel (CB)]

The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.

Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.

Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.

So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.

However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Justice Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.

The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue on Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.

There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity; that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.

My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.

I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.

The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.

My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,

“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.

It cannot therefore be said to constitute an undue interference with open justice or press freedom.

We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.

I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.

The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?

To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group I will speak only to Amendment 122AA standing in my name. This amendment deals with preserving the anonymity of children who are subject to a criminal investigation but who have not yet been charged with any offence. The lack of anonymity for such children is an anomaly in the law as they are protected from being named once they are charged, as the noble Earl, Lord Listowel, has just explained.

This anomaly was to be addressed by Section 44 of the Youth Justice and Criminal Evidence Act 1999, which would apply to reporting in respect of persons under 18 after a criminal investigation into an alleged offence has begun. However, that section has not been brought into force. My amendment would amend the section to add its application to sound and television broadcasts or public electronic communications networks and would bring it into force on the passing of the Bill.

The undesirability of the present position was graphically illustrated when the Sun published the name of the boy later to be accused of murdering the Leeds schoolteacher Ann Maguire before he was charged. It is, of course, now illegal to name him as he is a party to court proceedings. It is obvious that if a child is named pre-charge, that undermines any anonymity later afforded by court proceedings.

In Committee, my noble friend the Minister said that,

“in the light of the significant changes to press self-regulation recently introduced by the Government … Both the industry and the Government agree that independent self-regulation is the way forward. … We should therefore give this new approach a chance to succeed”.—[Official Report, 23/7/14; col. 1198.]

I regret that I do not share my noble friend’s optimism as to the present effectiveness of self-regulation. Furthermore, even if press self-regulation may work for newspapers in future, it has no effect on preventing pre-charge publication in the social media.

This is, of course, a probing amendment. It has been agreed that Section 44 will not in fact be brought into force unless it is debated by both Houses and subject to affirmative resolution. Nevertheless, I would ask my noble friend to make clear in this debate whether he agrees that pre-charge anonymity ought to be guaranteed—and, if so, will he please say how he proposes that it should be achieved?

20:45

[Baroness Howe of Idlicote (CB)]

My Lords, I will speak to Amendments 122A and 139. Amendment 122A and government Amendment 139 both aim to address the problem of what happens to the anonymity granted to children in court proceedings when these children turn 18. This is obviously a pressing issue thanks to the case of JC & RT, as we have already heard, in which Lord Justice Leveson ruled that Section 39 reporting restrictions expire when a child reaches 18. I gather that that case is subject to appeal.

The government amendment seeks to create a new lifelong anonymity order, but this cannot be granted to defendants: so these new orders allow a court to provide child victims and witnesses with anonymity post-18, but not child defendants. As far as I am aware, this means that the only way for a child defendant to be granted post-18 anonymity would be for them to seek a civil injunction. Unless they have such an injunction, the press, or individuals on social media, will automatically have the right to identify any child defendant as soon as they reach 18.

I understand that the Government’s position is that they do not want all child defendants automatically to be granted post-18 anonymity, but will there not be some cases in which the court should have the ability to impose lasting reporting restrictions? What about cases where a child is found not guilty of an offence? What about cases where vigilantism is a real possibility? Amendment 122A would allow defendants to be subject to the new lifelong anonymity orders and would provide courts with the means to impose restrictions if they choose. This may be the most sensible way forward.

Under Amendment 139, child victims and witnesses will have to show that their evidence or co-operation would be diminished if they were to be granted post-18 anonymity. Under the current law, victims and witnesses do not have to meet any tests to be granted the same anonymity. Like my noble friend Lord Listowel, I am concerned that this test may deter victims and witnesses. I am also concerned about what will happen when proceedings have already concluded and the child victim or witness has now reached 18 years of age. Presumably, anyone over the age of 18 who has ever been a child victim or witness and who does not want to be identified will have to go back to court and apply for one of the new orders that the Government propose. Surely it is unlikely that most people will know that they can do this. Even if they did, would legal aid be available to assist them?

This is a serious issue if victims and witnesses in historic cases start to be named in the press without their prior knowledge. This is likely to deter potential victims and witnesses from coming forward, as well as being potentially harmful to those identified. Like my noble friend Lord Listowel, I hope that the Government will take these concerns into consideration and, in particular, come back with a rather more acceptable amendment at Third Reading.

[Lord Carlile of Berriew (LD)]

My Lords, this has been a rather intimidating debate so far, in the sense that I notice that two of the three noble Lords who have spoken did so from their tablets. To the public mind, tablets in your Lordships’ House are probably seen to be what most of us take at some point during the day. Anybody who thinks that we are not a modern House should take account of what has just happened.

I support the speeches of all three noble Lords—in particular, that of the noble Earl, who opened cogently the debate on the amendment, which also has my name upon it. I am concerned that there should be a discretion vested in the court to allow anonymity for defendants. One could think of hundreds of examples where this would be just. I shall give the House one, which involves a situation in which parents have been instrumental in the child committing a crime. It may be the father who is a thief and has given the child the stolen goods to look after; or it may be a mother who is involved in some other offence in which she relies upon her child to protect her and, for example, warn her if the police are appearing.

For any of your Lordships are devotees of film noir, in a recent episode of that splendid drama, “The Bridge”, an animal rights terrorist involved his brother in a terrorist act and the brother undoubtedly committed criminal offences—we will have to wait and see whether he is prosecuted in the next episode—for his brother’s protection. It is self-evident that there will be cases such as the more real examples that I mentioned earlier, in which there should be a discretion in the court to protect the child from being named.

We are not saying in this amendment that it should happen. We are saying that surely it could happen. I hope that the Minister will tell me that I am wrong— I would be delighted if he did—and say that powers either exist or will shortly exist that will leave this discretion within the criminal court. There are, as the noble Earl said, civil powers that could be used, but these are complex and difficult to access, and we have the problem that legal aid is not necessarily available for such cases. We therefore need to ensure that children who have committed crime and may be only marginally to blame for their involvement have this protection.

We know that historically there are some cases of great notoriety in which, after the child’s release from custody, lifelong anonymity has been granted. It would be right to at least give the criminal court the power to grant such anonymity for a period, so that the notoriety of the child is protected, even if the merits indicate that this matter should be dealt with by a civil court at a much later stage.

I agree also with the noble Earl’s comments in relation to victims and witnesses. Child witnesses are often very intimidated by the prospect of giving evidence. They know that they are going to be cross-examined and face what may be an unpleasant experience. They will be told that the experience is sometimes well controlled, which is true—but unfortunately it is far from always well controlled. If we are to value the need to obtain child witnesses, particularly in abuse cases and matters of that kind, we should have stronger provision than is contained in the Bill. With those views, I support the amendment and the amendment spoken to by my noble friend Lord Marks, and hope that the Government will say that they would like to take another look at these provisions.

[Baroness Hamwee (LD)]

My Lords, the world now knows about the technology used by your Lordships and their Saturday night viewing habits. I associate myself with the remarks that have been made. I was not able to be in the House while the Bill was in Committee. However, I was a bit surprised that, rather than a quite simple but perhaps simplistic amendment which restored what everyone had thought of as the status quo, instead the amendment is around 10 lines in length. Those among your Lordships and from the Government who carried out the drafting have come up with very many lines, which can sometimes prove more difficult than a more straightforward and prescribed amendment.

Having said that, I want to mention the position of defendants. I agree very much with what has been said, and I simply add that not to provide anonymity or reporting restrictions—whatever term you apply, although of course they are not necessarily the same thing—seems to me to undermine the whole purpose of the youth justice system, which is rehabilitation, reintegration, and so on. An enormously important principle is at stake here. The same really applies to the amendment of my noble friend Lord Marks. One cannot separate out the stages. I am sure that there is a sporting analogy for this. Having lost anonymity at that early point before being charged, there is really nothing more that one can sensibly do afterwards to fulfil the spirit of what the Government themselves seem to consider important, even if we would like to have more than the Government’s amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my Amendment 123 is largely superfluous in the light of the government amendments. The Standing Committee for Youth Justice has sent to all noble Lords who have taken part in this debate, I suspect, a briefing which was largely laid out by the noble Earl. He made the point very well about the high threshold test proposed by the Government in their amendments. He summarised that by saying that the new threshold test would be a diminishment of co-operation or evidence through fear on behalf of the witnesses or the victims. The Standing Committee for Youth Justice briefing makes the point that this higher threshold is even higher than that in the Children and Young Persons Act. This is an important point, which I hope that the noble Lord will be able to address.

This is a very difficult area of legislation. In my brief time in the courts, although the law has not changed in the adult courts, in practice what magistrates view as appropriate use of media within a courtroom has changed quite a lot. This is largely at the discretion of the magistrates and district judges involved. I very much hope that the noble Lord will agree that whichever amendments are agreed tonight will be kept under review, because this is such a delicate and difficult matter.

Where I diverge from the noble Earl and the noble Lord, Lord Carlile, is whether lifetime anonymity should be given to child offenders. The briefing was rather less nuanced than the points made by the noble Lord, Lord Carlile. To put it in stark terms, I do not think it reasonable that a young person of 17 and a half should get a lifetime of anonymity, whereas someone who is 18 gets no anonymity if they have committed largely the same offence. If one were to rely on the briefing alone, that is the burden of the argument which is being made. I know that that is not the point made by the noble Lord, Lord Carlile; he presented his case in a more nuanced way. However, I find it troubling that there is potentially a very stark difference in the way that people are treated on either side of the 18 years of age barrier.

I would like to make a further point, which may be a technical one. I noticed that the briefing continually refers to child defendants and not to child offenders, whereas of course all the children about whom we are talking have either pleaded guilty or been found guilty in a court. They are not, in my understanding, child defendants. Having said all that, it is a real issue about the availability of the internet and how that might affect the rehabilitation and reintegration of young offenders into the community.

I conclude with an anecdote, which is not to do with youth. Recently, my wife employed a female offender who was still in prison but on release when she was employed by my wife. It was a wholly positive experience in that the offender worked well and the organisation benefited. However, when my wife searched the internet for the offences that the woman had committed, the information she got was not what she had been told by the offender or the organisation which facilitated the work placement. Nevertheless, I support the Government in their objectives.

21:00

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I am grateful to all those who contributed to this debate on these complex issues involving the conflict between a free press, the public’s right to know and the natural desire we have to protect young people from publicity to make sure that they do not suffer for life for any sins they committed in their youth. In acknowledging everyone’s contribution, perhaps I may single out the noble Lord, Lord Ponsonby, who I think, although I may be wrong, is making his debut from the Opposition Front Bench. Noble Lords are shaking their heads and I understand that he is not. Therefore, my congratulations are late but none the less sincere.

Amendment 139 provides the criminal courts with a discretionary power to order reporting restrictions that last for the lifetime of a victim or witness in criminal proceedings who is under the age of 18 at the time those proceedings commence. Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s from print and broadcast media to include online content as well. Amendment 139 tracks the circumstances in which a lifelong reporting restriction may be available to an adult witness. The criminal courts are therefore given an additional statutory discretion to order lifelong protection for victims and witnesses under the age of 18 to secure their best evidence or co-operation. However, if it is not reasonable or proportionate to make use of this power, the court may continue to rely on the existing youth reporting restrictions available to children and young people.

As these amendments have been tabled in response to the High Court judgment and the noble Lord, Lord Ponsonby, bringing it to our attention in Committee, consultation with the Scottish Government is ongoing and the government amendments are not intended to change the situation in Scotland. Some further technical amendments may be required at Third Reading in respect of territorial extent.

The issue of criminal investigations is covered by Amendment 122AA, which is tabled by my noble friend Lord Marks. This amendment seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999. It is similar to an amendment tabled by the noble Lord, Lord Ponsonby, in Committee. On previous occasions, I explained to your Lordships that, given the significant restriction that Section 44 potentially imposes on freedom of the press and the possibility that its aims might be achievable through other means, it was determined by the then Government in 1999 that Section 44 should be commenced in relation to victims and witnesses only after both Houses have been given the opportunity to debate the issue again.

I fear that I must repeat what I said in Committee. The Government do not believe that this is the right time to consider commencing Section 44 in light of the significant changes to independent press self-regulation that we have introduced. The Privy Council granted a royal charter that has been sealed. The Government believe that that is the best way to ensure that independent press self-regulation operates successfully and that we should give this new approach a chance to succeed. I am sorry that my noble friend Lord Marks does not have much confidence in this. Furthermore, we have some misgivings about Section 44 as drafted, as it imposes restrictions on the press that are so broad as to be potentially impractical.

However, I reassure my noble friend that it is unnecessary to amend Section 44 in order to extend it to online content as we believe that it already covers such media. Section 44 adopts a definition of “publication” that is wide enough to include online content. I will explain this further in dealing with the final set of government amendments and, in due course, I will ask the noble Lord to withdraw his amendment.

In respect of online content and youth reporting restrictions, Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s. Through these amendments, and by commencing Section 45 and the relevant parts of Section 48 of the YJCE Act 1999, restrictions will also be applicable to online content. The Government intend to commence the relevant provisions of the 1999 Act when the amendments to this Bill come into force.

Youth reporting restrictions will rely on an existing statutory definition of publication, which includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public, but does not include an indictment or other document prepared for use in particular legal proceedings. By using this definition of publication we will broaden the scope of youth reporting restrictions to create consistency with other reporting restrictions already on the statute book, such as those that apply to adult witnesses and victims of sexual offences. It would also be in line with the definition used in Section 2(1) of the Contempt of Court Act 1981 which the Law Commission recently concluded was,

“wide enough to cover the content of new media and probably in the future too”.

The Government agree with that interpretation and have therefore adopted the same definition of publication when extending the scope of youth reporting restrictions to online content. I hope that that reassures the noble Lord, Lord Ponsonby, that the purpose of his Amendment 123 has been met—and I would therefore ask him not to press it.

During the course of the debate there was some reference to whether there was any justification for the distinction between victims and witnesses and defendants. There are a number of statutory protections within the criminal justice system that are applicable only to victims and witnesses. One example is Section 46 of the YJCE Act 1999, which provides for the possibility of lifetime reporting restrictions for adult witnesses. The Sexual Offences (Amendment) Act provides for automatic reporting restrictions for victims of sexual offences. Similar statutory powers are not available for defendants.

I respectfully agree with what the noble Lord, Lord Ponsonby, said about the position of someone who is 17 and then becomes 18. He asked why there should be a difference so that if someone is 17 they have lifetime anonymity. Of course, there are remedies available. If your Lordships accept the Government’s amendments, it is argued that the current position reflects a fair balance between the various considerations that apply in this field. More clarity may be needed in this area of concern, which we will be considering.

I understand that Impress, the second potential self-regulator, is currently appointing its board. We would respectfully suggest that these are matters for the industry and not for government. I also understand that David Wolfe QC has been appointed chair of the independent Recognition Panel and that the board appointment process is also under way. This is a matter for the Commissioner for Public Appointments and not for government. Therefore, for the moment the Government have done all that they need to do.

[The Earl of Listowel]

My Lords, I am grateful to the Minister for his reply. I note the emphasis he puts on the charter and the institution that is set in place to improve the way in which the media control themselves. From what he said, I take it that he has an open mind to a certain extent. These are new developments. The charter is a new thing. He will keep looking at it to see if it provides sufficient protection for young people. I am grateful for that open-mindedness.

I was grateful for what the noble Lord, Lord Ponsonby, said. He referred to 17 and a half and 18 year-olds and that it seemed unfair to distinguish so much between the two when there was such a small gap. My response might be: can we not be generous to children? They are still children until the age of 18: can we not err on the side of generosity towards them? I am grateful to all noble Lords who have taken part in this debate and I beg leave to withdraw my amendment.

Amendment 122A withdrawn.

Amendment 122AA not moved.

Amendment 122B

Moved by

[The Earl of Listowel]

122B: After Clause 38, insert the following new Clause—
“Duties of custody officer before charge
In section 37(15) of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge), for “17” substitute “18”.”

[The Earl of Listowel]

My Lords, I hope that my iPad performs better on this occasion. My amendment would give 17 year-olds detained by the police the right to be held in local authority accommodation rather than overnight detention in a police cell. I tabled amendments to the same effect in Committee and during that debate I explained the importance of the matter. I was grateful for the sympathetic response from the Minister at the time and for his letter in July which laid out the timetable for the Government’s response to this question.

I will not repeat all the arguments other than to say that children under the age of 17 already have the right not to be detained in a police cell, but to be transferred to a local authority bed. Those aged 16 and under are already protected from being placed in police custody, an unsuitable and detrimental environment for the overnight detention of children. The recent tragic cases where teenagers have died after being treated as adults while at the police station remind us all too well of this fact. The UN Convention on the Rights of the Child is clear that 17 year-olds are children. However, the Police and Criminal Evidence Act 1984, known as PACE, which governs the operation of police stations, is currently inconsistent on this point. It is this Act which I am seeking to amend, specifically to enable 17 year-old children to access local authority accommodation.

In his reply in Committee, the Minister explained that the Government were holding an internal review of all the legislation where 17 year-olds are treated as adults in the criminal justice system. He explained that the review included looking at the necessary consequential amendments that would result from the proposed change in the law, and that the Government would need to ensure that such a change was workable. He concluded by saying:

“While this is clearly an important issue and one that the Government take extremely seriously, for the reasons I have given I am unable to commit myself to having an answer by Report. I hope that we will have, but I am afraid that I am unable to give that commitment”.—[Official Report, 23/7/14; col. 1205.]

I have tabled this amendment in the hope that the Minister might possibly be in a position to give the answer he hoped to have. I note from his letter in July that in fact the timetable he has set would give us a result in the spring of next year, but I hope that just possibly the Government have moved faster than he expected, because this needs to be addressed as soon as possible.

The charity Just for Kids Law has told me that it understands that the Home Office PACE strategy board, comprised of the police, civil servants and other relevant parties, has now met a number of times and that the last meeting of the board was held on 22 September. I am told that the charity has had sight of the minutes of that meeting and that civil servants have committed to submitting to Ministers an amendment to transfer 17 year-olds from police cells to local authority accommodation. As I say, I hope that the Minister might have some good news for us tonight. Is he in a position to confirm that this work has been done and, if so, can he tell the House that the Government are in agreement that this is the way to proceed now?

The Bill provides an ideal opportunity to amend PACE with regard to 17 year-olds as recommended by the internal review, and I hope that the Government will take it. I believe that there is a need to act with some urgency to ensure that there are no more teenage suicides as a consequence of their time in police custody. Since 2011 there has been one suicide a year where children were treated as adults at the police station. I am concerned that this issue should not be kicked into the long grass, as it has been in the past. In 2010 the Government committed to extending the appropriate adult provision to 17 year-olds, but it took seven years and a court decision before anything was done. In the interim, two children died after being treated as adults in police custody. The parents of Joseph Lawton, a successful and popular A-level student with no mental health problems, believe wholeheartedly that his suicide was the consequence of being kept in a police station overnight and their not being informed of what was happening. This simple amendment could prevent the death of another bright and successful child. The House should not forget the potential consequences of not amending the legislation. We owe it to the devastated parents who have campaigned on this issue and to all children. As parliamentarians, we have a duty to protect them and we should act as soon as possible.

Beyond children themselves, the people this change will impact on the most is the police. They support the change and have said this to the Home Office. I have also seen an e-mail on behalf of the national policing lead, Dawn Copley—who is also assistant chief constable of Greater Manchester Police, the area where all three 17 year-olds died—stating that,

“it is the National Policing position as held by Dawn Copley who is the national lead for Custody that PACE should be changed so that 17 year olds are treated as children in all the provisions of the Act”.

Given the importance of the issues at stake, with the police and bereaved parents stating that they are in agreement for change, and seeing the Government’s own independent review advising them the same, I hope that the Minister will indicate that the Government are able to support my amendment tonight. I beg to move.

21:15

[Lord Ashton of Hyde (Con)]

My Lords, I fully appreciate the laudable aims of this amendment, which seeks to make a positive change following the tragic cases of the three 17 year-olds who committed suicide following their encounters with the police. To lose a child is a tragedy, particularly in the sad circumstances surrounding the deaths of Joseph Lawton, Edward Thornber and Kesia Leatherbarrow. This Government have the utmost respect for the dedicated commitment of their families, who continue to campaign on this important issue.

The Government acted swiftly to ensure that they complied in full with the High Court decision in the judgment of Hughes Cousins-Chang. Changes were made as soon as possible following the statutory obligation to consult on PACE code changes. PACE codes C and H have been amended, and it is now mandatory that 17 year-olds have an appropriate adult with them at the police station and that the police inform a parent or guardian of their arrest and detention.

When this amendment was debated in the House on 23 July, noble Lords observed that the amendments to the PACE codes introduced inconsistencies between the Police and Criminal Evidence Act 1984—the primary legislation—and the PACE codes with respect to the treatment of 17 year-olds. On the one hand, they are treated as children and bestowed with the appropriate safeguards. However, when it comes to the location of their detention overnight post-charge, and their pre-court appearance, the noble Earl, Lord Listowel, and the noble Baronesses, Lady Kennedy and Lady Howe, made the point that the Police and Criminal Evidence Act continues to treat 17 year-olds as adults. They acknowledged that, while 17 year-olds may look like adults and sometimes act like adults, they are still children who find the environment of the police station to be frightening and threatening.

There are, of course, already in place important safeguards for all children under 18 who come into contact with the police. Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. This means that the police have to make arrangements to safeguard and promote the welfare of 17 year-olds detained post-charge overnight in the police station, and this is one way of ensuring that the best interests of those children can be upheld. Additionally, children under 18 have access to appropriate adults at the police station, who are with them throughout interviews and during procedures such as the taking of fingerprints and samples.

The Government are committed to ensuring that young people are protected and treated appropriately while in police custody. The noble Earl, Lord Listowel, spoke passionately in Committee on this matter, so I hope he will be pleased that, shortly after the High Court’s decision in the case of Hughes Cousins-Chang, the Government launched a review of the remaining pieces of primary legislation that treat 17 year-olds as adults. We expect the review to report shortly. As he mentioned, the working group responsible for reviewing the legislation reported to the PACE strategy board earlier this month.

The Home Office review was wider-reaching than the amendment. If it is indeed right to amend the Police and Criminal Evidence Act 1984 so that it treats 17 year-olds as children, then that principle should relate to all sections in the Act and not just the section that relates to overnight accommodation. Furthermore, any change to primary legislation needs full scrutiny, consultation and appropriate consideration by Parliament. This amendment is laudable in its aims but, in our opinion, represents a too-hurried and partial approach to the issue of how we treat young people at the age of 17 at the front end of the criminal justice system. There is more to be gained by pausing on this matter for the time being to enable the Home Office to consider the conclusions of its review. For these reasons, although I understand the reasoning behind the amendment, I respectfully ask the noble Earl to withdraw his amendment.

[The Earl of Listowel]

My Lords, I am grateful to the Minister for his careful response and for his recognition of the great distress that these sad events have caused the families in question. I was very pleased to hear that his department has undertaken to review these matters so that they can be changed as soon as possible.

I wonder if it might just be possible for him to go back and speak to his department to see if something could be done by Third Reading in this area, but I understand from what he said that this is unlikely. I appreciate that the Government are doing all they can as fast as they can to remedy this. I encourage them to work as hard as they can on this because I am sure that they, as much as any of us, wish to avoid these tragic events befalling any more children and families in the future. I am grateful to the Minister for his reply and I beg leave to withdraw my amendment.

Amendment 122B withdrawn.

Amendment 123 not moved.

Amendment 124

Moved by

[Lord Faulks]

124: Before Clause 44, insert the following new Clause—
“Time limit for bringing certain criminal proceedingsOffence of making improper use of public electronic communications network
(1) In section 127 of the Communications Act 2003 (improper use of public electronic communications network), at the end insert—
“(5) An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.(6) Summary proceedings for an offence under this section may be commenced in Scotland—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.”
(2) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

Amendment 124 agreed.

Clause 46: Criminal courts charge

Amendment 124A

Moved by

[Lord Marks of Henley-on-Thames]

124A: Clause 46, page 43, line 31, leave out “order” and insert “consider ordering”

[Lord Marks of Henley-on-Thames]

My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.

Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.

However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions, I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.

Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.

I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.

My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.

I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.

I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.

21:30

[Lord Faulks]

My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.

The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.

The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.

Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.

Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.

Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.

New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.

I stress, however, that this is a novel scheme and the Government have already agreed to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lord will agree that this further safeguard demonstrates the Government’s commitment to getting this right.

I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.

The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.

If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.

The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.

I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.

I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.

I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.

Finally, I suspect that when it comes to the review of the operation of this charge in three years’ time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.

Amendment 124A withdrawn.

Amendments 124B to 127 not moved.

Clause 49: Personal injury claims: cases of fundamental dishonesty

Amendment 128

Moved by

[Lord Hunt of Wirral]

128: Clause 49, page 48, line 11, after “claim” insert “which consists of or includes a claim”

[Lord Hunt of Wirral (Con)]

My Lords, I am moved to move this amendment, inserting the words,

“which consists of or includes a claim”,

so that Clause 49 would read,

“proceedings on a claim which consists of or includes a claim for damages in respect of personal injury”,

because immediately after Committee, when we had a very good debate on what is now Clause 49, a number of people on all sides of the House expressed to me concern that quite often a claim for personal injury is accompanied by another claim, such as a claim for credit hire, that is often found to be bogus, made up, exaggerated or just plucked out of the air. Also, so far as whiplash injuries were concerned, a number of colleagues were concerned about the allegation that we had become the whiplash capital of the world, and wanted to create a deterrent to someone who had damaged their vehicle through a shunt or an accident, had recovered the repairs to their vehicle but then, as a result of a text message or some other marketing effort, decided to bring a claim for whiplash. It was put to me that thousands of such claims were being made that really were promoted by claims management companies without any substantial reason for the claim being made in the first place.

So I have tried here to extend the remit of the sanction for fundamental dishonesty to cover not only injury claims but claims presented where the injury itself is used as a means by which a dishonest claim—for example, a claim for credit hire—is made. I do this by aligning the wording in Clause 49 with that in, for example, Rule 44.13 of the Civil Procedure Rules 1998, which spells out the scope and intention of qualified one-way cost shifting. I hope that noble Lords will understand that I do not really need to repeat in detail the Civil Procedure Rules; suffice to say that I am aligning the amendment in accordance with that rule. Its wording is also aligned with Section 11 of the Limitation Act 1980. Again, for the record, I say that it is Section 11.

The amendment would capture vehicle repair costs paid before a dishonest injury claim was presented, but I believe that its greater impact would be in the arena of credit hire claims where genuine injury claims are frequently used as a means to present a dishonest, either fabricated or exaggerated, claim for hire. I could cite a whole series of relevant cases but I am not sure that noble Lords wish me to go into too much detail. There are a number of them where claims management companies, one in particular, presented 36 claims, 35 of which subsequently proved to be completely fabricated and, when challenged, were withdrawn. One claim was pursued but dismissed at first instance. As a result of that dismissal there was an appeal to the Court of Appeal, which said, “I think there should be a retrial”. The retrial began but, after evidence-in-chief, the claim was suddenly withdrawn so no claim for damages was maintained. Of course one can only speculate about why it was withdrawn. I refer to the case of Basharat Hussain v Adil Hussain v AVIVA UK Insurance Ltd, a reported case that is an example of exactly what I am hoping this amendment will stop—fabricated claims associated with an injury claim being made. I am sure that there would be all sorts of problems, but I hope that my noble friend will agree at least to give this a little further thought so that we can ensure that Section 49 is effective.

21:45

I shall also speak to my Amendment 130, on a matter where there is a government amendment already. This applies to Clause 49(5). Section 51 of the Senior Courts Act 1981 states that:

“Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in … the civil division of the Court of Appeal”,

or any court, are in the discretion of the court. Based on the original draft of Clause 49(5), it would not appear that it was the intention to remove the discretion as to the costs order to be made. The proposed amendment tabled by my noble friend the Minister conflates the order and the assessment, but it is unlikely that the assessment of costs will take place at the same time as the costs order is made. Therefore, surely it should be clear that, first, the court retains a discretion as to the costs order made; and, secondly, that the costs still need to be assessed separately. Once the costs have been assessed, if an order is made in the defendant’s favour, then the sum recorded in accordance with subsection (4) as to the amount the court would have awarded in damages is deducted from the assessed sum.

I hope that my noble friend the Minister will regard this amendment as necessary to ensure that what he intends to do is properly reflected in the statute. So far as Amendment 128 is concerned, I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:

“The duty under subsection (2)”—

which is one to dismiss a primary claim—

“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.

It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.

I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.

I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.

However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.

Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.

However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.

I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.

I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.

[Lord Kennedy of Southwark (Lab)]

My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.

[Lord Beecham (Lab)]

My Lords, I expect that other Members of your Lordships’ House will have had my experience of being called about accidents or insurance policies that I have never had, and I entirely sympathise with my noble friend’s last observations. Clearly, no one would wish dishonesty in the presentation of a claim to go without penalty. However, there are some questions to be asked about this provision. The first of those is, why should any change in the law, which we are now progressing, apply only to PI cases? The noble Lord, Lord Hunt, has broadened that somewhat, and is in a sense making my case for me, because he cited a case in which there is both an alleged personal injury and an accident. However, the driver who sues for a personal injury and is deemed to have been fundamentally dishonest will of course be penalised, and rightly so—although how the penalty is levied is perhaps debatable. However, if the claim is only for the damage to the vehicle, he will not be caught by the present clause, and nor, of course, would somebody fundamentally dishonest—whatever that means; that is perhaps another issue, but let us take it as a given at the moment—in a whole variety of other claims. Why should not somebody making a claim—for example, as regards breach of contract, professional negligence or any number of claims that have a monetary element in them for some breach of duty other than involving personal injury—also be brought within the framework? It seems odd to single out this group, albeit there clearly are cases where claims management companies and the like deliberately promote false claims.

Having listened to the noble Lord, Lord Marks, I am not entirely sure that this binary system of small claims and larger claims is appropriate. What might be a small claim to me and some other Members of your Lordships’ House is not necessarily a small claim to the individual claiming £25,000. One needs to have the same approach overall. However, there is then an issue about what constitutes substantial justice, and that is also unclear.

The major issue to which my amendment is addressed is why the courts should have to strike out a claim—an argument made, up to a point, by the noble Lord, Lord Marks—in its entirety on the balance of probabilities, as opposed to the criminal standard of proof. After all, we are talking about essentially criminal behaviour—it is essentially fraud. That is unsatisfactory, particularly if a claim is to be dismissed on that basis, hence my amendment. Of course, as I informed the House in Committee, in the case of Fairclough Homes v Summers in the Supreme Court, the noble and learned Lord, Lord Clarke, said:

“It is for the court, not for Parliament, to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”.

He said that the existing power to strike out should,

“only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances”.

One has to take that judgment into account in determining how to apply the test. I invite the Minister to reconsider whether the balance of probabilities is not a safer and better test to apply before further draconian action—which must in part be justified by fraudulent behaviour—is taken.

22:00

[Lord Faulks]

My Lords, I am most grateful to all those who have spoken in the debate. This is not, I readily concede, a straightforward provision. Our debates both in Committee and on Report have been illuminating. The stance taken by the noble Lord, Lord Beecham, tonight is somewhat different from that which he took in Committee—but I commend him on his mental agility in that regard. Of course, the fact that his arguments have somewhat changed—

[Lord Beecham]

My Lords, will the Minister take it from me that I can count?

[Lord Faulks]

The noble Lord’s arguments do not deserve lesser consideration for their recent arrival in our debate. He asked, for instance, why personal injuries, rather than other fields, should be singled out for attention. The answer is simply this. Of course fraud has a role in the law of contract, the law of property and other areas of the law. But this is a provision to deal with a particular mischief, of which we are all aware in one form or another. Unfortunately, the explosion of claims, with dishonest claims and people calling others to invite them to participate in dishonest claims, has become widespread, and the Government are responding in a variety of different ways, including by regulating claims management companies—I am glad to see the reduction in the number of such companies—and by introducing this provision.

Amendment 128 was tabled by my noble friend Lord Hunt of Wirral, to whom the House listens very carefully on all things, but perhaps particularly in areas such as this. It would extend the scope of Clause 49 to cover claims for items linked to the personal injury claim. As he has indicated, this could typically include items such as damage to property and the cost of credit hire. The effect of the amendment would be that where the court was satisfied that the claimant had been fundamentally dishonest, its order would dismiss any such related elements, as well as the claim for personal injury—when, for example, a claim for personal injury is used as a vehicle for other fraud.

I understand precisely what my noble friend says, and I have considerable sympathy for what lies behind the amendment, which is to make the clause as strong a deterrent as possible. However, after careful consideration by my officials and myself, I believe, on balance, that it would unnecessarily complicate the clause, and could have unintended consequences that would not be desirable.

The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the claimant’s insurer, and are then recovered by them from the defendant’s insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the claimant’s insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.

The complexity of the law on subrogated rights means that the potential for this type of unintended consequence would be high. In any event, I do not consider the amendment necessary. The existing focus of the clause on personal injury claims avoids complexities of this nature, and ensures that the core matter in relation to which the claimant has actually been dishonest, and where the main scope for dishonest behaviour arises—the personal injury claim—will be dismissed whenever the court considers it appropriate. We are confident that this should provide a sufficiently powerful deterrent to discourage claimants from seeking to bring fraudulent and exaggerated claims, and believe that the amendment could on balance run the risk of creating uncertainty in the law and would make the clause unnecessarily complex in practice.

On Amendment 128A, the noble Lord, Lord Beecham, said that it would be more appropriate to have not the civil standard of proof but the criminal standard of proof. I think that he refers—if not explicitly, implicitly—to a recommendation of the Joint Committee on Human Rights on this, which based its recommendation on the view that the inclusion of the relevant measure is indicative of the quasi-criminal nature of the sanction imposed by the dismissal of the claim. The Government strongly disagree that that is the case. Subsection (7) simply ensures that the order for dismissal can be taken into account by a court hearing any proceedings against the claimant in relation to the same dishonest behaviour, whether they be civil or criminal proceedings for contempt or a criminal prosecution. This is to ensure that the claimant is dealt with fairly and that any punishment imposed in those proceedings is proportionate given the overall effect of the consequences of the claimant’s dishonest behaviour upon him or her. This approach is also reflected in other aspects of the clause—in particular, subsection (5) in relation to costs sanctions.

As we have set out in the ECHR memorandum accompanying the Bill, we consider that the adoption of a civil standard of proof can be fully justified. The sanction of deprivation of property involved in the dismissal of the claim would occur in the context of civil proceedings in relation to civil compensation, proceedings which are brought by the claimant, not the state. No criminal conviction could arise from the dismissal process itself, and it does not involve anything that could be said to be a criminal charge. We consider that the analogy drawn in the ECHR memorandum with the approach of the European Court of Human Rights and the domestic courts to confiscation proceedings under the Proceeds of Crime Act 2002, in which a civil standard of proof has been upheld, is a valid one, and that the adoption of the civil standard of proof in Clause 49 is both fair and appropriate.

Amendments 128B, 128C, 128D, 128E, 130A and 130B tabled by my noble friend Lord Marks are similar but not identical to those tabled by him in Committee, save that the court is given a discretion to reduce the award of damages rather than dismiss the claim entirely, or, it would seem, take no action at all, in circumstances where the genuine part of the award is £25,000 or more. We do not believe that it is appropriate to impose a financial limit of this nature. I endorse what the noble Lord, Lord Beecham, said about this. Although the widening of the court’s discretion not to dismiss the claim is of a lesser extent to that which the noble Lord previously suggested, the amendments would still weaken the effect of the clause and interfere with its effective operation by imposing what is inevitably an arbitrary dividing line.

As I explained in Committee, the sanction imposed by this clause—the denial of compensation—is a serious one, and will be imposed only where the claimant’s dishonest behaviour goes to the heart of the claim. If the court, having heard all the evidence, is satisfied that that is the case, I believe that it is right that it should be required to dismiss the entire claim unless doing so would cause substantial injustice to the claimant. People who behave in such a way should not be able to get compensation regardless, whatever the amount involved.

The amount of compensation which the claimant would otherwise have been awarded, and the proportion of the overall claim which that represents, will, of course, be matters that the court may wish to take into consideration in deciding whether the claimant has been fundamentally dishonest and, if so, whether its discretion not to dismiss the claim should be exercised. Where the effect on the claimant might be particularly harsh or unfair on the facts of the case, the substantial injustice test will provide sufficient protection. The addition of a further discretion simply waters down the deterrent effect of this provision.

On Amendment 129, during the debate in Committee some uncertainty was expressed about the policy intention underlying subsection (5) of Clause 49, and whether the existing drafting of the subsection clearly and accurately captured that intention. In the light of those concerns, we have tabled government Amendment 129, which clarifies the position by replacing the existing subsection with a new subsection. This provides that when assessing costs in the proceedings, a court which dismisses a claim because of the claimant’s fundamental dishonesty must deduct the amount of damages that it would have awarded to the claimant from the amount of costs which it would otherwise order the claimant to pay in respect of the defendant’s costs. The intention underlying this provision is, as I have previously explained, to ensure that claimants are not excessively sanctioned by both losing the genuine element of the award of damages and having to pay the defendant’s costs without any credit for what the defendant has saved by avoiding payment of the genuine element of the award. I should add that one of the main intentions behind this provision is to deter people from bringing these claims at all, or at least deter them from being dishonest when advancing them.

Beyond that, it is not our intention to interfere more generally with the court’s discretion on whether to make a costs order and, if so, in what terms. We believe that the court should be able to make whatever orders it considers appropriate. In many cases the court will doubtless decide to award the defendant’s costs in full, apart from the sum deducted under this subsection. However, in some cases, it may decide only to award the defendant some of its costs in circumstances where it considers that certain costs have been unnecessarily incurred—for example, where the defendant had spent money pursuing an irrelevant issue.

Amendment 129 preserves the court’s discretion to do this, or indeed to decide, in the circumstances of a particular case, to make no award of costs at all. We believe that it is important for a provision on this issue to remain in the clause to ensure that it operates in a fair and proportionate way, and I am therefore—although I do not think my noble friend is pursuing it with any vigour—unable to accept Amendment 128F, which would remove it altogether.

My noble friend Lord Hunt has indicated that he remains concerned that Amendment 129, the government amendment, may still create some confusion, and has proposed Amendment 130 instead. While I share my noble friend’s concern to ensure that the provision is as clear as possible, on careful consideration, we do not believe that his fears about our amendment are justified.

In particular, I should point out that, even if the actual assessment of the amount of costs payable is undertaken by a different judge or officer at a later date, as would normally be the case in a detailed assessment of costs, assessment is still being undertaken by the same court that has dismissed the claim, and so the requirement to deduct the amount recorded in subsection (4) from the ultimate costs “bill” that the claimant may have to pay applies regardless of the point of time at which, or judge by which, the costs payable are determined. I am also concerned that my noble friend’s amendment simply restates the existing law confirming the discretion of the court to award costs. On balance, we feel that it is unnecessary to restate this in legislation, and it might be taken to imply that this was not already the position, or that special rules regarding the court’s discretion as to costs are required in these cases. That would be contrary to the policy, which is not intended to make any changes to the rules on costs themselves.

On reflection, I consider that government Amendment 129 makes it amply clear that if the court decides to order costs against the claimant, it must deduct the amount of the damages it would have awarded but for the effect of Clause 49, so that the claimant has to pay whatever costs, if any, that are ordered net of that amount. I believe that the Government’s amendment clarifies this policy intention in a way that removes any ambiguity that might have arisen from the previous text of the subsection. However, I remain extremely grateful to my noble friend for drawing that to the attention of the House. I am sorry that I detained the House a little longer than might be desirable at this time but these are complex provisions, and it may be helpful if I provide a little detail about this.

I conclude by dealing with the question of where parts of a claim may be involved. The noble and learned Lord, Lord Hope, pointed out a possible ambiguity. It may be that this is what he has in mind. I shall answer the question: why does the court have a discretion not to dismiss the claim when the claimant would suffer a substantial injustice? We believe that an element of discretion is necessary because difficult cases may arise where depriving the claimant entirely of damages may cause substantial injustice. This might be the case, for example, where a claimant had genuinely been very seriously injured through another person’s negligence, perhaps requiring substantial ongoing future care and support as a result, but stupidly colluded in a bogus minor injury claim by a family member in relation to the same accident. We do not, however, think there is any need to amend the provisions. We think that judges will be able to work with these provisions and that the Government’s intention and, I hope, that of noble Lords from all around the House, will be achieved by these important provisions. I hope that all noble Lords who have tabled amendments will agree to withdraw or not move them.

22:14

[Lord Hunt of Wirral]

My Lords, I first remind the House of my interests as declared in the register. Secondly, I thank my noble friend the Minister for his very careful consideration of all the points which have been raised, and for his recognition that these are genuine attempts to eradicate a practice which has arisen and which must be stopped. I will of course very carefully consider all the points he has made, and in the mean time I beg leave to withdraw my amendment.

Amendment 128 withdrawn.

Amendments 128A to 128F not moved.

Amendment 129

Moved by

[Lord Faulks]

129: Clause 49, page 48, line 26, leave out subsection (5) and insert—
“( ) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.”

Amendment 129 agreed.

Amendments 130 to 130B not moved.

Clause 50: Rules against inducements to make personal injury claims

Amendment 131

Moved by

[Lord Faulks]

131: Clause 50, page 49, line 10, at end insert “or is treated as doing so under subsection (3A)”

[Lord Faulks]

My Lords, I am grateful once again to my noble friend Lord Hunt of Wirral for raising this issue in Committee. During that debate, I indicated that we would consider his amendment further. There has been widespread support for the ban on offering inducements to bring personal injury claims in Clauses 50 to 52, but I am concerned to make this as effective as possible. Having reflected over the summer—I have been given a great deal on which to reflect over the course of the Bill—I agree with my noble friend that we should seek to prevent regulated persons avoiding the ban by offering an inducement through third parties.

The noble Lord’s amendment was prompted by a concern that it is now increasingly common for solicitors to operate as part of larger groups of companies, or to have subsidiary or linked companies offering services alongside them. Those subsidiary or linked companies are not always regulated, and it would be relatively easy for, say, a solicitor simply to route an inducement through an unregulated company, thus avoiding the ban.

For the avoidance of doubt, I add that we do not wish to regulate third parties, only to prevent regulated persons from avoiding the ban by offering an inducement via an unregulated subsidiary or a linked business or individual. I believe that this amendment is a proportionate means of making the necessary ban on inducements more effective, and I beg to move.

[Lord Hunt of Wirral]

I am very grateful to my noble friend the Minister.

[Lord Beecham]

I am afraid I cannot beat the brevity of that. I would like a little guidance from the Minister about the nature of the regulation. Can he give any indication of how effective whatever the regulatory body is—I confess that I do not know which it is—in overseeing this practice? I am entirely with the Government in wishing to ensure that such practices are limited as much as possible, for precisely the reasons that were mentioned by the noble Lord, Lord Hunt, and with which we all concur: the promulgation of false claims, which is wrong in itself and, of course, a drain on the economy generally. I am not clear what the regulatory system currently is, or how effective it is. While supporting the Government’s intentions in the amendment, it would be helpful to have an impression of that.

[Lord Faulks]

I am happy to write to the noble Lord with as much detail as we have. In the mean time, I can tell him and the House that anecdotal evidence shows that the practice is more prevalent among solicitors than non-regulated persons. However, once there is a ban in place preventing legal services providers from offering an incentive to issue claims, there is a possibility that non-regulated persons offering inducements to issue claims with legal services providers will be used as a way around the ban.

As to what types of third party rather than regulated persons might offer a benefit, these are likely to be but not restricted to those working in what are described as “first notification of loss teams”. The teams are used by insurers and are the central point that clients contact when they wish to make a claim on their insurance policy. The intention is to ban any inducement which encourages or might have the effect of encouraging a person to make a claim or seek advice about making a claim, including so-called welcome payments, free gifts and cash advances.

The noble Lord will know that there is far too much by way of unsolicited phone calls going on in relation to personal injury claims, which is another matter we take seriously. It is a complex issue that requires action on a number of fronts, both legislative and non-legislative. We have taken a number of measures as set out in our nuisance calls action plan of 30 March. I can give the website address if necessary. It includes increasing the fines that Ofcom can issue from £50,000 to £2 million, enabling the Information Commissioner’s Office to issue fines of up to £500,000, and providing simple and consistent information to consumers on preventive action that they can take and how they can complain about unsolicited phone calls via Ofcom.

If the noble Lord is having particular difficulty with being asked to make fraudulent claims, which I am sure we have all encountered, he may wish to know that he can register with the Telephone Preference Service, which should result in his avoiding such claims. I hope that that provides some further information, but I undertake to give more information in due course.

[Lord Beecham]

I thank the noble Lord for providing further information, but it is not terribly helpful because the Telephone Preference Service seems to be totally useless. Apart from anything else, it does not seem to work with a BlackBerry these days. It is quite extraordinary. Having appreciated that regulated persons include members of my profession and that of the noble Lord, Lord Hunt, I am sure that he will agree that it is a very sad commentary on the current state of what was a profession and is now increasingly descending, if I may put it that way, into a rather unscrupulous business —which is a matter I think we would both deplore.

Amendment 131 agreed.

Amendments 132 to 135

Moved by

[Lord Faulks]

132: Clause 50, page 49, line 18, leave out “by a regulated person”

133: Clause 50, page 49, line 23, leave out “A benefit offered by a regulated person” and insert “An offer of a benefit”

134: Clause 50, page 49, line 30, at end insert—
“(3A) If a person other than a regulated person offers a benefit in accordance with arrangements made by or on behalf of a regulated person—
(a) the regulated person is to be treated as offering the benefit, and(b) the offer of the benefit is to be treated as satisfying subsection (2)(a) if the arrangements were intended to encourage people to make claims or seek advice from a regulated person with a view to making a claim.”

135: Clause 50, page 49, line 32, leave out “offered by a regulated person”

Amendments 132 to 135 agreed.

Clause 51: Effect of rules against inducements

Amendment 136

Moved by

[Lord Faulks]

136: Clause 51, page 50, line 9, after second “person” insert “or is treated as having done so under section 50(3A)”

Amendment 136 agreed.

Clause 52: Inducements: interpretation

Amendment 137

Moved by

[Lord Faulks]

137: Clause 52, page 50, line 33, after “The” insert “Chartered”

Amendment 137 agreed.

Amendment 138

Moved by

[Lord Faulks]

138: Before Clause 54, insert the following new Clause—
“Appeals from the Court of Protection
(1) Section 53 of the Mental Capacity Act 2005 (rights of appeal from the Court of Protection) is amended as follows.
(2) For subsection (2) substitute—
“(2) Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.”
(3) Omit subsection (3).
(4) In subsection (4)(d), omit “higher”.”

[Lord Faulks]

My Lords, I shall speak to three amendments tabled in my name on behalf of the Government. We have the pleasure of the noble and learned Lord, Lord Hope, in the Chamber in respect of these amendments and I thank him for his patience for remaining for so long. Amendments 138 and 181 seek to rectify an omission in relation to appeals from decisions at lower levels in the Court of Protection, which was not addressed when the range of judicial officeholders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013.

The need for the amendment does not only arise from, but has been starkly highlighted by, the decision of the Supreme Court in what has become known as the Cheshire West case. That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required for such a deprivation of liberty.

As a result, it is predicted that there will be a significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty in cases where, prior to Cheshire West, no such authorisation was considered necessary. It is considered that the figure may well be in excess of 28,000 additional applications annually. To deal with this increase in workload, deputy district judges and judges from other jurisdictions are being deployed to the Court of Protection for the first time. The Crime and Courts Act 2013 allowed for this wider range of judges to deal with Court of Protection cases but did not address the question of appeals.

The current provision in the Mental Capacity Act 2005 governing the route of appeal from decisions in the Court of Protection allows for decisions of specified judges to lie to a higher judge in the Court of Protection rather than directly to the Court of Appeal. However, the judges specified are limited to district judges and circuit judges, and the provision does not cover decisions of any of the wider range of judicial officeholders now able to sit as judges of the Court of Protection. The Crime and Courts Act omitted to amend it to align with that wider range. Without this amendment, appeals from decisions of judges in that wider range—even though they are decisions of the same sort as those of a district judge at present, for example—would have to go to the Court of Appeal, thereby increasing workload in the appeal court. This amendment makes good the omission.

The judges whose decisions may be appealed within the Court of Protection and the higher judges to whom appeal against those decisions will lie within the Court of Protection will, as now, be specified in Rules of Court, namely the Court of Protection Rules. This will prevent the Court of Appeal being unnecessarily burdened by a significant increase in cases and allow the Court of Protection the flexibility to deal with resources efficiently. This, in turn, will reduce delays and the need for cases to be transferred to a different court. It will also provide greater consistency in how appeals are managed across other jurisdictions.

Members of the House of Lords Select Committee on the Mental Capacity Act 2005—I should declare an interest as having been a member of that committee for some time—were given written notice of this proposed amendment which was made available in early August to allow time for consideration.

Amendment 142 would have the effect of allowing the President of the Supreme Court of the United Kingdom to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom can do already under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales. This amendment would give the President of the Supreme Court the same avenue to raise similar matters to Parliament. The proposed amendments were initially tabled by the noble and learned Lord, Lord Hope of Craighead, and I am grateful to him for bringing this matter to our attention. The Government have considered and reflected further on the implications of this proposal and agree that the change is justified,

Amendment 143 was also tabled in Committee by the noble Lord. This amendment would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the Supplementary Panel within two years of their retirement, provided that they are under the age of 75. At present, it is impossible for the Supreme Court to identify particular skills or expertise which might be of use in the future—particularly without knowledge of future workloads. This makes it difficult to identify which qualifying judges should be added to the Supplementary Panel before they retire from full-time judicial office. The amendment provides greater flexibility in this respect.

These are minor but sensible amendments which I hope the House will agree to. I beg to move.

22:30

[Lord Hardie (CB)]

My Lords, I apologise for speaking at this late hour and detaining your Lordships but Amendment 138 is important for the application of the safeguards in the Mental Capacity Act against depriving people of their liberty without justification and for the need to provide proper judicial supervision of such actions. I declare an interest in that I was chairman of the Select Committee on the post-legislative scrutiny of the Act.

The consequence of the need to ensure that these safeguards are in place is that there should be adequate resources to decide cases at first instance and on appeal within the Court of Protection. These cases should be decided by the appropriate level of judges. I am grateful to the Minister for explaining the reasoning behind this amendment. I understand that the decision in the Cheshire West case, in which the Supreme Court concluded that each of the three appellants who had mental or physical disabilities or had suffered deprivation of their liberty within the meaning of Section 64(5) of the Mental Capacity Act 2005, had the effect of increasing the workload of the system.

I should advise the House that I have been told that the number of cases involving an alleged deprivation of liberty referred to local authorities for assessment, which is the first stage, has increased dramatically. There has been a ninefold increase in monthly referrals. The total number since April this year is almost 33,000, compared with 8,455 for the whole of 2012-13. This will not come as a surprise to the members of the Select Committee on post-legislative scrutiny of the Act, which I had the honour to chair and of which the Minister was a distinguished member before his justifiable appointment to ministerial office.

Our report predated the decision in Cheshire West by, I think, about a week. We heard evidence over a number of months suggesting that the then available figures did not accurately reflect the number of people who were actually subject to deprivation of liberty. Perhaps I may quote from paragraph 270 of the report, where we record our conclusion on that evidence:

“We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge”.

Against that background, it is not surprising that the Government are anxious to take a more flexible approach to appeals, but it is equally important that these appeals are held by judges of higher authority than first-instance judges. The existing provisions in the Act have a hierarchy where the first-instance judges are set out as people who are drafted in—district court judges or circuit judges—and there is a hierarchy of appeals. From those who are drafted in, there is a right of appeal to the district court judge or the circuit judge. From the district court judge there is a right of appeal to the circuit judge, and from any of the three of them there is an appeal to the senior judges who are nominated to serve in the Court of Appeal.

In Scotland, England and Wales appeals are generally heard by an appeal court that is comprised of more than one judge, but there are exceptions where appeals may be heard by a single judge. In Scotland, for example, one might appeal against a decision of a sheriff to the sheriff principal. We have seen that in England and Wales there is the possibility of an appeal to a single judge in the Court of Protection. But where it is an appeal to a single judge, it is always an appeal to a single judge of a higher status and legal authority. That is preserved in the original provision, but in the amendment being proposed no reference is made to it. I appreciate that the likelihood is that the rules council would not permit an appeal to someone of equal or lower status, but I am concerned that it should be put on the record that that would not happen, because otherwise there might be a suggestion to the more vulnerable members of society that their appeals were not being treated with equal concern and consideration as those of the more able.

[Lord Hope of Craighead]

My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.

I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.

[Lord Faulks]

I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.

Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.

Amendment 138 agreed.

Amendments 139 to 143

Moved by

[Lord Faulks]

139: After Clause 68, insert the following new Clause—
“Reporting restrictionsLifetime reporting restrictions in criminal proceedings for witnesses and victims under 18
(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—
“45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18
(1) This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—
(a) a witness, other than an accused, in the proceedings;(b) a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person’s name,(b) the person’s address,(c) the identity of any school or other educational establishment attended by the person,(d) the identity of any place of work of the person, and(e) any still or moving picture of the person.(5) The court may make a reporting direction in respect of a person only if it is satisfied that—
(a) the quality of any evidence given by the person, or(b) the level of co-operation given by the person to any party to the proceedings in connection with that party’s preparation of its case,is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.(6) In determining whether subsection (5) is satisfied, the court must in particular take into account—
(a) the nature and alleged circumstances of the offence to which the proceedings relate;(b) the age of the person;(c) such of the following as appear to the court to be relevant—(i) the social and cultural background and ethnic origins of the person,(ii) the domestic, educational and employment circumstances of the person, and(iii) any religious beliefs or political opinions of the person;(d) any behaviour towards the person on the part of—(i) an accused,(ii) members of the family or associates of an accused, or(iii) any other person who is likely to be an accused or a witness in the proceedings.(7) In determining that question the court must in addition consider any views expressed—
(a) by the person in respect of whom the reporting restriction may be made, and(b) where that person is under the age of 16, by an appropriate person other than an accused.(8) In determining whether to make a reporting direction in respect of a person, the court must have regard to—
(a) the welfare of that person,(b) whether it would be in the interests of justice to make the direction, and (c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.(9) A reporting direction may be revoked by the court or an appellate court.
(10) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
(11) The court or an appellate court may only make an excepting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or(b) it is satisfied that—(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(ii) it is in the public interest to remove or relax that restriction.(12) No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(13) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
(14) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently, and(b) may be varied or revoked by the court or an appellate court.(15) For the purposes of this section—
(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006. (16) In this section—
(a) “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;(b) “appropriate person” has the same meaning as in section 50;(c) references to the quality of evidence given by a person are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a person’s ability in giving evidence to give answers which address the questions put to the person and can be understood both individually and collectively);(d) references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.”(3) In section 49 (offences under Chapter 4)—
(a) after subsection (1) insert—“(1A) This section also applies—
(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court.”, and(b) at the end insert—“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”
(4) In section 50 (defences)—
(a) after subsection (6) insert—“(6A) Where—
(a) a person is charged with an offence under section 49, and(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and
(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”

140: After Clause 68, insert the following new Clause—
“Reporting restrictions in proceedings other than criminal proceedings
(1) Section 39 of the Children and Young Persons Act 1933 (power to prohibit publication of certain matter in newspapers) is amended as follows.
(2) In subsection (1)—
(a) after “any proceedings” insert “, other than criminal proceedings,”, and(b) after “direct that” insert “the following may not be included in a publication”.(3) In subsection (1)(a)—
(a) omit “no newspaper report of the proceedings shall reveal”, and(b) omit “, or include any particulars calculated to lead to the identification,”.(4) In subsection (1), after paragraph (a) insert—
“(aa) any particulars calculated to lead to the identification of a child or young person so concerned in the proceedings;”.(5) In subsection (1)(b)—
(a) for “no picture shall be published in any newspaper as being or including” substitute “a picture that is or includes”, and(b) omit “as aforesaid”.(6) In subsection (2), for “publishes any matter” substitute “includes matter in a publication”.
(7) After subsection (2) insert—
“(3) In this section—
“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include a document prepared for use in particular legal proceedings;
“relevant programme” means a programme included in a programme service within the meaning of the Broadcasting Act 1990.”
(8) In the heading of that section, omit “in newspapers”.
(9) After that section insert—
“39A Prohibition on publication of certain matters: providers of information society services
Schedule 1A makes special provision in connection with the operation of section 39 in relation to persons providing information society services.” (10) In section 57(3) of the Children and Young Persons Act 1963 (extending section 39 of the Children and Young Persons Act 1933 to Scotland) after paragraph (a) (but before “and”) insert—
“(aa) as it extends to Scotland, the said section 39 has effect as if the references to a publication were references to a newspaper;”.(11) In consequence of the amendment made by subsection (2)(a), omit paragraph 2 of Schedule 2 to the Youth Justice and Criminal Evidence Act 1999.
(12) Subsection (2)(a) does not affect the operation of section 39 of the Children and Young Persons Act 1933 in relation to criminal proceedings instituted before the day on which it comes into force.
(13) For the purposes of subsection (12)—
(a) proceedings other than proceedings on appeal are instituted when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings on appeal are instituted when the notice of appeal is given or the reference under section 9 or 11 of the Criminal Appeal Act 1995 is made.”

141: After Clause 68, insert the following new Clause—
“Reporting restrictions: information society services
Schedule (Reporting restrictions: providers of information society services) makes special provision in connection with the operation of the following in relation to persons providing information society services—(a) section 39 of the Children and Young Persons Act 1933;(b) section 49 of the Youth Justice and Criminal Evidence Act 1999 as it applies to a publication that includes matter in contravention of a direction under section 45A(2) of that Act.”

142: Before Clause 69, insert the following new Clause—
“Representations to Parliament by the President of the Supreme Court
(1) Section 5 of the Constitutional Reform Act 2005 (representations to Parliament) is amended as follows.
(2) At the beginning insert—
“(A1) The President of the Supreme Court may lay before Parliament written representations on matters that appear to the President to be matters of importance relating to the Supreme Court or to the jurisdiction it exercises.”
(3) In subsections (2) and (3), for “those matters” substitute “the matters mentioned in subsections (A1) and (1)”.”

143: Before Clause 69, insert the following new Clause—
“The supplementary panel of the Supreme Court
In section 39(4) of the Constitutional Reform Act 2005 (circumstances in which a judge of the Supreme Court becomes a member of the supplementary panel), after “while he holds such office” insert “or within 2 years of ceasing to hold such office”.”

Amendments 139 to 143 agreed.

Amendment 144

Moved by

[Baroness Howe of Idlicote]

144: After Clause 69, insert the following new Clause—
“Giving evidence at remote sites
In the Youth Justice and Criminal Evidence Act 1999, after section 30 (aids to communcation) insert—“30A Giving evidence at remote sites
(1) A special measures direction may provide for persons eligible for assistance under section 16 (witness eligible for assistance on grounds of age or incapacity) to give evidence at a remote site.
(2) For the purposes of this section, any facility may be designated as a remote site where the court is satisfied that all of the following criteria have been met—
(a) the facility must be suitable for hearing evidence;(b) the facility must be absent from the court building;(c) the location of the facility must be appropriate to meet the needs and promote the welfare of the witness; and(d) the arrangement must not prevent the witness from being able to see, and to be seen by—(i) the judge or justices (or both) and the jury (if there is one);(ii) legal representatives acting in the proceedings; and(iii) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.””

[Baroness Howe of Idlicote]

My Lords, I will speak to Amendments 144 and 145 together, as they both concern the use and availability of special measures for child victims and witnesses during a criminal trial. The amendments relate specifically to remote live link sites, which allow children to give their evidence away from a court building and with registered intermediaries —communication professionals who help children communicate with the police, legal representatives and the court.

These new clauses are supported by the NSPCC, Barnardo’s and Victim Support. I am sure that noble Lords will agree with me that never before has such a stark spotlight been shone on child abuse, with increasing numbers of victims coming forward and arrests made. It is clearly important that we should be doing everything in our power to support child victims and witnesses to give their best evidence and minimise the trauma of their court experience. NSPCC research found that more than half of young witnesses experienced stress symptoms ranging from sleeping and eating problems, to depression, bed-wetting and self-harming. A child’s evidence can be crucial in deciding the outcome of a case. Where this involves sexual abuse, they are often the only witnesses. However, the current special measures designed to support children in these circumstances are being used too inconsistently.

The purpose of these new clauses is to highlight the urgent need to increase their use and availability. The new clause proposed in Amendment 144 requires the availability of a remote videolink site away from court for all young witnesses. I share the view of the NSPCC that a criminal court is not an appropriate place for a child and that no child should give evidence in a court building unless they expressly wish to do so. The hostility, unfamiliarity and alien nature of the court and the proximity of the defendants and their supporters all serve to make a child’s experience far more traumatic. This can increase the likelihood of a child failing to give their best evidence and justice not being served. Indeed, in some cases children are so upset by their time in court that they are unable to give their evidence at all.

It is now 25 years since the landmark Pigot report recommended that children should give evidence in surroundings and circumstances that do not intimidate or overawe them, and yet a recent FOI request by the NSPCC showed that there are currently only a handful of remote sites across England and Wales where children can give evidence by videolink away from court. Judge Pigot’s recommendations were made in 1989, well before the dawn of the digital age. It does not seem right that in 2014, when people are able to make video calls to the other side of the world in a matter of seconds and prisoners routinely give evidence from their cells, that still only 1% of children have the option of giving evidence away from a court building. Establishing a remote link is not prohibitively complex and can cost as little as £10,000 to £12,000.

I welcome the Government’s recent commitment to ensuring that there is one remote site in each court region by March 2015. That is a welcome step in the right direction but there are only six court regions across England and Wales. This commitment is nowhere near the level of ambition we should expect for our most vulnerable victims. My amendment would ensure that remote sites are available to all children who require one. I would welcome clarity on the Government’s commitment to remote sites beyond establishing one in each court region.

In their recent package of measures for victims, the Government announced the rollout of pre-recorded evidence. This will undoubtedly make a huge difference to vulnerable children, reducing the delay and trauma involved in giving evidence during a live trial, but will the Minister give his assurance that children will be able to pre-record their evidence at a location away from a court building? I see no reason why remote sites should not be routinely used for this purpose, but this will require a concerted effort to increase their number.

The new clause proposed in Amendment 145 requires the availability of registered intermediaries for all children under 11 years of age—another valuable special measure which child witnesses are eligible for but which is used far too infrequently. Even bright, normally developing children find court communication methods and language challenging simply because of their age. Research has shown that 90% of children under the age of 10 reported being unable to understand the questions they were asked in court.

An intermediary is an officer of the court who facilitates communication between vulnerable witnesses and the criminal justice system. Unfortunately, just 3.8% of young witnesses in England and Wales have access to a registered intermediary to help them understand what is happening during a trial. This stems from a stark shortage in numbers and a low awareness of the benefits of the service within the criminal justice system. Judges widely agree that RIs provide enormous value to the handling of cases involving young witnesses. Yet, astonishingly, there are fewer than 75 in England and Wales to support the 21,000 children giving evidence each year. Even after accounting for a recent recruitment drive by the Ministry of Justice, we are still a very long way from a sustainable service which addresses the level of need.

22:45

I hope the Minister will commit to further recruitment of registered intermediaries and will clarify what steps the Government are taking to address the long-term challenges facing the service and ensure that every child victim has access to it. I hope that in his reply the Minister will clarify the government vision for expanding the availability of both these special measures for children. Surely this is the moment for the Government to take a leading role in improving the treatment of young victims and witnesses. We cannot afford to wait another 25 years to ensure that the right support is in place for our most vulnerable children. I beg to move.

[Lord Hope of Craighead]

My Lords, I want to make one or two points about Amendment 145, based upon my experience as a prosecutor taking evidence from very young children. One has to bear in mind that not every case in which a child is giving evidence is a case of child abuse. Some of them may be cases such as theft or something of that kind where the child is an essential witness but in no sense has been traumatised by the event about which they are speaking. One has to be a little careful about spreading the protection wider than is necessary.

The other point is that, speaking from my experience of prosecuting before juries, it is extremely important that juries should have an opportunity to assess the credibility of the child witness. I recall a particular case where I led evidence from a child aged six who was completely convincing and apparently unconcerned about the surroundings in which she was giving her evidence. The fact that she was so obviously credible made all the difference in securing a conviction against somebody who had in that case abducted her. I am a little nervous about intermediaries because that reduces the impact of the utter frankness which this little girl displayed when she was describing what happened to her. She could not, for obvious reasons, give a full account of all that was done to her because she did not have the language, but her account was absolutely gripping, and the jury, I could feel, sensed immediately that she was undoubtedly speaking the truth. It would not have been nearly so obvious if there had been some kind of protection around her.

There may be cases where the protection is essential; there may be others where it would be unwise if convictions are to be obtained. I am sure the Government will wish to think very carefully about the extremely important points that have been raised. It does require quite careful scrutiny.

[Lord Ashton of Hyde]

My Lords, I thank the noble Baroness, Lady Howe, for waiting so long to express her views on this issue to the House and her commitment to these issues. If I understand her intention correctly, she is seeking to introduce, through Amendment 144, a new clause which would provide for the use of remote sites for certain young witnesses and, through Amendment 145, to mandate the use of intermediaries for witnesses under the age of 11.

I first reassure the noble Baroness and this House that the Government take seriously the support of victims and witnesses across the criminal justice system. Indeed, special measures are already available to assist vulnerable and intimidated witnesses in court, including all witnesses under 18 years old. These measures can include screens round the witness box to shield the witness from the defendant, evidence by live link and the use of a registered intermediary or communications specialist to ensure that the witness understands the questions being asked.

Children are automatically eligible for special measures to ensure that they are able to give their best evidence. The presumption is that in most cases children should give their evidence by video-recorded statement, which would be played during the trial as their evidence in chief. In addition, any further evidence or cross-examination will ordinarily be conducted via live link and the court may permit a supporter to be present. The aim is to minimise the number of times a child is questioned and to enable them to give evidence from outside the courtroom.

We fully support looking at other ways to help vulnerable and intimidated witnesses give their best evidence. We know that the court environment can be challenging for some witnesses and are exploring ways in which we can use remote links and developments in technology to help such witnesses give evidence from outside the court building.

On Amendment 144, I advise the House that a majority of Crown and magistrates’ courts already have the facilities that allow witnesses to appear by secure videolink from a different location to the trial court. The use of remote videolinks, and extending this to other non-court sites, will not require any new legislation. We have recently committed to establishing at least one non-court location in each court area for vulnerable witnesses to give their evidence, as the noble Baroness mentioned.

The noble Baroness asked what else we were doing in this regard. We are using live-link technology in piloting pre-trial cross-examination in Kingston, Leeds and Liverpool Crown Courts to help vulnerable witnesses give their best evidence. This has the advantage of sparing witnesses from the full courtroom atmosphere by allowing the cross-examination to take place before the trial, as well as allowing evidence to be given closer to the time of the event. The pilot will end this month, followed by an evaluation and decision early next year on any further rollout if the measure is successful.

On Amendment 145, I am afraid that the Government are not convinced that the mandatory provision of a registered intermediary is necessary or always helpful—this pertains to the point made by the noble and learned Lord, Lord Hope. Intermediaries and other special measures should be used based on a witness’s assessed needs rather than offering blanket provision to any group. Witnesses retain the right to decline the offer of assistance from an intermediary if they do not want this assistance. We must instead ensure that witnesses receive the right type of special measure and that they are fully informed and supported, especially young children.

We are working closely with our partners in the criminal justice system to ensure that a witness’s need for a registered intermediary is identified. We continue to assess regularly the capacity of the intermediary workforce to ensure that we can plan for and meet demand. This includes considering future plans to increase the number of intermediaries available. We know that the demand for registered intermediaries is steadily increasing and is at its highest level since the start of the scheme 10 years ago, which is very encouraging. We are working with the police and the CPS to improve identification of the need for registered intermediaries for vulnerable witnesses in addition to assessing workforce capacity given the current demands for the scheme. This would include planning for future recruitment campaigns. On the details of Amendment 145, I can assure the noble Baroness that intermediaries must be screened by the Disclosure and Barring Service and meet a number of other criteria before joining the witness intermediary scheme.

I recognise and support the sentiments behind the amendments. However, in the light of our work in this area, the Government do not feel that either is necessary. In the light of my explanation, I hope that the noble Baroness will reconsider her position and not press her amendments.

[Baroness Howe of Idlicote]

My Lords, I thank the Minister for the attention that he has given to both the amendments. I also thank the noble and learned Lord, Lord Hope, for what he said.

It is encouraging to hear that the Government are doing their best to increase the number of registered intermediaries, but one would need to know a little more about just how fast it is likely to happen. Obviously, I will read carefully what has been said by everyone in this debate. For the moment, I will withdraw my amendment, but it is possible that we will be back with another comment at a later stage.

Amendment 144 withdrawn.

Amendment 145 not moved.

Consideration on Report adjourned.

House adjourned at 10.55 pm.