Police, Crime, Sentencing and Courts Bill

Baroness Massey of Darwen Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

Moved by

[Baroness Massey of Darwen]

191: Clause 101, page 86, line 14, leave out from “committed” to “the court” on line 15 and insert—
“(i) by a person aged 16 or 17; or(ii) by a person aged 18 or over before the day on which section 101 of the Police, Crime, Sentencing and Courts Act 2021 came into force,”Member’s explanatory statement
This amendment ensures that no children are affected by the changes to mandatory minimum sentences in Clause 101.

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[Baroness Massey of Darwen (Lab)]

My Lords, I shall speak to amendments of various kinds in this group, all related to youth justice. I am grateful to the secretariat of the Joint Committee on Human Rights, of which my noble friend Lord Dubs and I are members. We have discussed the Bill at great length, interviewed people with expertise on each clause and, as noble Lords are aware, prepared relevant reports. It has been a heavy load on our secretariat and I am grateful for their dedicated work. I am also grateful to the Youth Justice Board, the Children’s Rights Alliance, the Youth Justice Legal Centre and other children’s organisations for their contributions.

Amendments 191 to 194 in Clause 101 would ensure that no children were affected by the changes to mandatory minimum sentences in Clause 101, based on paragraphs 17 to 27 of the JCHR report. Clause 101 will allow a court to diverge from imposing a minimum custodial sentence for certain crimes, including crimes involving weapons committed by those aged 16 or 17, only where there were exceptional circumstances. This increase in the limitation on judicial discretion conflicts with the need for sentencing decisions to be individualised and for the welfare of the child to be a primary consideration. Custody for children, as has been stated in many cases, must remain a measure of last resort. Witnesses told the JCHR that limiting judicial discretion was inherently incompatible with the best-interests principle, the legal duty that the best interests of the child must be a primary consideration in any action by a state body, including a court. These principles reflect international standards and are a fundamental protection for the rights of the child.

This set of amendments would amend Clause 101 so that no children would be affected by its provisions. We have heard about the difficult circumstances of many children who interact with the criminal justice system, many of whom have complex needs that should be appropriately considered in sentences. The Bill limits the ability for such consideration by limiting judicial discretion at a time when there is a growing awareness of child criminal exploitation.

The amendment to leave out Clause 103 is based on paragraphs 76 to 82 in parts 7 and 8 of the JCHR report. Clause 103 would make it possible for judges to impose whole-life orders on offenders aged 18 to 20 in exceptionally serious circumstances. Sentences giving offenders no possibility of rehabilitation, and no prospect of release if that rehabilitation was achieved, would breach Article 3 of the European Convention on Human Rights. While it has concluded that whole-life orders for offenders aged 21 and over do not violate Article 3 of the ECHR, the JCHR is concerned about the implication of extending these sentences to offenders aged 18 to 20.

The courts and the Justice Committee have accepted that turning 18 is not a cliff edge. Young offenders aged between 18 and 20 are still maturing and have significant potential to change. Extending to this age group a sentence that makes the prospect of these offenders ever being released unlikely comes perilously close to the Article 3 threshold. It also runs counter to positive recent recognition of the need to treat young adult offenders as a category distinct from old offenders. This amendment would ensure that the minimum age for imposing a whole-life sentence or order does not drop below 21.

Amendments 198 to 201 to Clause 104, which would remove any tariff starting points above the current 12 years, are based on paragraphs 28 to 39 of the JCHR report. Clause 104 introduces a range of starting points for tariffs for children given DHMP sentences. When setting the tariff period, the court must first allocate a starting point and then consider any aggravating or mitigating factors—plus the effect of the defendant’s previous convictions, any guilty plea and whether the offence was committed on bail.

Currently, the starting point for the courts when setting the tariff is 12 years for children of all ages. The Bill proposes a change to this starting point, depending on the age of the child. The changes would more closely align the starting points for older children with the equivalent offences for adults, while reducing them for a small number of younger children.

Life sentences for children have been criticised by the Committee on the Rights of the Child, whose interpretation of the UNCRC, while not legally binding, is authoritative. Increasing the length of time that children must spend in custody before they can be considered for release can be seen only as making DHMP even less aligned to the rights in the UNCRC, which the UK ratified in 1992. Scotland and Wales are looking at how the convention might be incorporated into law. I am not sure where they are with this—perhaps the Minister will know more.

The courts already have discretion to consider the different developmental stages of children and reflect this in the tariffs that they hand down for DHMP. Mandating the courts in legislation to treat older and younger children differently focuses too much on age and not enough on maturity or circumstances. It brings tariffs for older children so close to those faced by adults that the distinction between a child and an adult risks being lost. However, the JCHR accepts the imposition of shorter tariff periods for the youngest offenders as a step towards the recommendations of the UN Convention on the Rights of the Child. These amendments remove any tariff starting points above the current 12 years but retain the imposition of shorter tariff periods for the youngest offenders.

Amendments 202 and 203 to Clause 105 return to permitting the possibility of a reduction of the tariff at the halfway stage and beyond for those who have committed relevant crimes as children, based on paragraphs 40 to 45 of the JCHR report. Individuals detained at Her Majesty’s pleasure may apply for their tariffs to be reviewed. The policy was changed in February 2021 so that those sentenced when over 18 would no longer qualify for any review of their tariff. Clause 105 puts this into statute.

The age of criminal responsibility is 10 in England, Wales and Northern Ireland and eight in Scotland. Therefore, it is theoretically possible, although it would be exceedingly rare, for someone to commit a murder, be given a DHMP sentence and still be under 18 two years after the halfway point of their tariff, so as to qualify for additional review. Accordingly, the JCHR was told that experts could not imagine a circumstance where someone would qualify for the additional review under this new provision. The effect of this clause is therefore to reduce the frequency of reviews of minimum terms and all but remove the possibility of a review beyond the halfway point. This should not happen.

The Government should seek to identify changes in the process of the DHMP tariff reviews so that they can lessen the distress caused to the families of victims. A child who commits an offence was still a child when they did so, even if they have reached the age of 18 while awaiting sentence or in custody. DHMP sentences should remain under continual review.

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For the reasons I have set out, I hope the noble Baroness will be content to withdraw her amendment.

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the Minister for his response. I did not quite realise it would end up in a dispute about the semantics. I am not a lawyer, and I think the law should be clear; I think I know the difference between “particular” and “exceptional”, but I will not go there again today. I thank noble Lords for their support for the amendments and the incisive, perceptive comments they have made.

I go back to my earlier premise that we must remember that, under the UN Convention on the Rights of the Child, children are those under 18, not 16. Everything that has been said by colleagues today expresses concern about the treatment of children in our youth justice system.

This has been a concern of the UN Committee on the Rights of the Child for years. As I said, it will be reporting back again next year on how we treat our children in the youth justice system. I hope that it finds something more acceptable than what it has in the past. By amending this Bill, we could possibly move a step forward on that issue.

The issue, for me, is that this is about children’s rights, and we should really consider those. I noted the comments of several colleagues. The noble Lord, Lord German, brought up the important issue of who is in the system and how black and minority-ethnic children, especially boys, are overrepresented in the system. We should think about that carefully.

The Government speak about levelling up in society, but I think the strategy set out in much of this Bill will do just the opposite. I will of course read carefully the comments of the Minister. I am afraid that I cannot stay for his later comments on a different group, but I will also read those carefully.

We must remember that children do not arrive fully formed at the age of 16—or any age, for that matter. We have recently been presented with research on the brains of adolescents and children which comes up with some surprising examples of how the brain does not in fact mature until over the age of 18, certainly, and that children should be treated as children. This provides unequal effects on children.

As has been said in the debate today, children have been affected by Covid and by the developmental health issues it brought about, as well as by the effects of delays on sentencing. All in all, I do not think that this is a very happy story as far as children are concerned.

I will need to consult other colleagues who have spoken today and respond to those organisations and individuals who have been so important in giving advice on these amendments to the Bill. Youth justice is such an important issue, which I feel we must push further on Report. I will not respond to all the Minister’s points today, because that would take a long time; I may wish to have a discussion with him, if he will consent, about some of these important issues. I beg leave to withdraw the amendment.

Amendment 191 withdrawn.

Police, Crime, Sentencing and Courts Bill

Baroness Massey of Darwen Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, it is a pleasure and a privilege to follow the right reverend Prelate. My name comes after hers on this amendment, and I strongly support what she has said. This is a very important set of amendments and I really hope the Government will take the opportunity that they give. The right reverend Prelate is not saying that those who have primary caring responsibility, or where an unborn child is involved, would get a free pass in relation to the sentencing regime or the bail regime. She is saying, with these carefully thought-out amendments, that there have to be proper arrangements for the courts to take these matters into account and recognise that they are a significant factor in many cases in determining a sentence.

If I could just take the Committee through these amendments, Amendment 110 says that where a court is considering whether to grant bail to somebody—that is, somebody who is not convicted of any criminal offence—they should have regard to the impact of not granting bail on a child for whom the defendant is the primary carer, or an unborn child, and that the court should presume, subject to victim impact or other relevant considerations, that it is in the best interests of the child or unborn child for bail to be granted. The right reverend Prelate is saying, “Weight the scales in favour of granting bail where there is a child for whom the defendant is the primary carer, or there is an unborn child.” That is sensible and should be the approach anyway.

Coming to the right reverend Prelate’s four other amendments, Amendment 215, which comes after Clause 131, says that the court should be under an obligation, through pre-sentencing inquiries, to discover whether the defendant is a primary carer for a child. That is obviously sensible, and no court would want to be in ignorance of that should it be sentencing somebody who is a primary carer. Amendment 216 says that where the defendant is a primary carer, the court must give reasons as to how it has dealt with the issue of primary caring. Again, that seems to be common sense. Amendment 217 says that where a court is considering imposing a custodial sentence on a primary carer or a pregnant woman, it must consider the impact of a custodial sentence on the child or unborn child and presume it will be detrimental to them. Amendment 218 would make sure that proper data is collected so that the criminal justice system is aware of the extent to which primary carers are imprisoned.

These amendments would mean that the interests of the child of which the defendant is the primary carer, or an unborn child, have to be explicitly considered and they are a weight—in many cases, a very considerable weight—in the scales. If we put these amendments into the Bail Act 1976 or the Sentencing Act 2020, which is where the right reverend Prelate is proposing they go, it will have an impact on sentencing. It is not enough, and it is a complacent view, as the Human Rights Committee found, to say, “Don’t worry; the judge has already taken it into account, it is referred to in the sentencing guidelines.” The evidence before the Human Rights Committee is that that was not the case. Put it into the Sentencing Act, as these amendments propose, and we will find that it then becomes a much harder thing for a court to avoid; it should be thinking of the rights of the child of which the defendant is the primary carer, or an unborn child. This is a significant opportunity for the Committee to make this Bill better, and I strongly support the right reverend Prelate.

[Baroness Massey of Darwen (Lab)]

My Lords, the amendments in this group are about ensuring the best interests and welfare of the child. We must remember that children are those under 18, not just little ones. The arguments have been admirably set out by the right reverend Prelate the Bishop of Gloucester and my noble and learned friend Lord Falconer. It is an honour to follow them both.

Age of Criminal Responsibility Bill [HL]

Baroness Massey of Darwen Excerpts

Friday 29th January 2016 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, I very much admire the noble Lord, Lord Dholakia, for his persistence with this Bill, which I support strongly. It has been very refreshing to hear, from all sides of the House, support for the Bill and sympathy for the approach of looking at children as children who need welfare, common sense and reason rather than just punishment. I welcome the very powerful speeches.

When distinguished organisations such as the Youth Justice Board, the Children’s Rights Alliance for England, the Prison Reform Trust, the Centre for Social Justice, the Howard League and others say that it is time for reform in this direction, we ought to listen. Children are not naturally psychopaths or criminals—they are children first. The noble Lord, Lord Cormack, pointed out very movingly that much happens in children’s lives which needs to be counteracted. Let us not blame the children and rush to prosecution, but remember that the welfare of the child is paramount, as the Convention on the Rights of the Child states. The noble Earl, Lord Listowel, mentioned the All-Party Parliamentary Group for Children, which I chaired, and I remember that we had discussions on the age of criminal responsibility as part of two of our inquiries. Those principles have not changed.

Let us look at the level of youth custody in England and Wales. We lock up more children than any other country in Europe. The earlier a child is drawn into the system, the greater the chance that they will reoffend. A low age of criminal responsibility indicates a society that views young people as criminals, and this has become self-reinforcing. The issue of problematic behaviour is a welfare and educational issue, not a criminal justice issue. Other countries look for alternatives to prosecution. In France there is educational intervention, and proceedings do not take place if it succeeds. In Italy, pre-trial supervision is used and, where it is successful, prosecution does not ensue.

When a young person is involved in criminal activities, we should be asking how and why the young person has fallen through the net—not criminalising them. I believe that our duty as a society is to safeguard and promote children in need, with a clear focus on the best interests of the child. The criminal justice system is not the starting point for this.

The noble Lord, Lord Ahmad, for whom I have enormous respect, stated in the 2013-14 Session, in responding to the noble Lord, Lord Dholakia, on an identical Bill, that the Government had no plans to raise the age of criminal responsibility. He supported this by saying that the Government believe that children aged 10 were,

“able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions”.—[Official Report, 8/11/13; col. 487.]

I do hope we have moved on from that stance.

We have heard the phrase “tough on crime”. That slogan should be tempered by common sense. Locking up young people is tough not only on young people but on the police, on the court system and on parents. Money is being spent on dealing with young children in ways that are not only counterproductive but expensive.

A 10 year-old, under our current system, could be tried in a Crown Court and may be given a custodial sentence equivalent to that available in the case of an adult. Similarly, a child of that age who is co-accused with an adult will be subject to trial in an adult venue. As other noble Lords have said, these arrangements have been criticised by the United Nations Committee on the Rights of the Child, which says that our rules are not compatible with our obligations under international standards of juvenile justice.

The situation is described by the Youth Justice Board as “illogical” and “damaging”. I really cannot accept the argument that children of 10 can necessarily distinguish between bad behaviour and serious wrongdoing. Criminalising a young person will not automatically ensure that they think about their behaviour. In fact, criminalisation may lead to worse behaviour, rather than an improvement, as others have said.

A later age of responsibility can improve the lives of thousands of children and also prevent thousands of children ending up in the youth justice system. It should be noted that one-third of all children who enter the youth justice system reoffend within 12 months. What is the cost of all this not only in human lives but in money? I do not know. Maybe the Minister does.

The Children’s Rights Alliance for England argues for an approach to youth justice in which under-18s in conflict with the law are dealt with under a system that is completely separate and distinct from that for adults: an approach which is child-centred, complies with children’s rights standards and focuses on rehabilitation, education and proportionality. I agree.

As the noble Lord, Lord Dholakia, said, the UN Convention on the Rights of the Child requires that states should establish an age below which children are presumed,

“not to have the capacity to infringe the penal law”.

Does the Minister have any evidence that a low age of criminal responsibility reduces crime? I very much doubt it. What the low age may do is criminalise children for minor offences which they will probably never commit again. Most children grow out of things, and bad behaviour is quite normal, as the right reverend Prelate indicated. The human brain is not fully developed in its capacity for cognitive and emotional functioning and abstract thought until young adulthood.

Our Government have to respond to the UN Committee on the Rights of the Child this year. The UN committee may well again recommend that the UK Government raise the age of criminal responsibility for children. I have not heard of any movement on the part of the Government to do so. Will the Minister say if their response is being considered and what the response will say? Perhaps he will write to me and other noble Lords to set out the Government’s approach. I hope that we will get some reassurance today on this important issue.

Arbitration and Mediation Services (Equality) Bill [HL]

Baroness Massey of Darwen Excerpts

Friday 23rd October 2015 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the noble Baroness, Lady Cox, for introducing this debate so effectively. I admire her courage and tenacity. I sometimes sit in the women Peers’ rooms and see her dashing off to catch a plane, going on some ghastly journey to some troubled part of the world.

I am speaking today because of a deep concern, shared by many—by all, I think—for women and children. Some women and children get a poor deal in some circumstances: discrimination in employment, domestic violence, sexual harassment and rape, cruelty and degradation, and appalling treatment in situations of war and conflict.

My late, lamented dear friend, Baroness Rendell of Babergh, was not only a great novelist but she spent much time combatting the odious practice of female genital mutilation. Indeed, she introduced to your Lordships’ House the Bill that became the Female Genital Mutilation Act, and we have seen progress, if slow, in legislation—things are possible. Baroness Rendell used to say that we must stand up for those people who are invisible or who cannot or dare not speak up for themselves. I think that that is a mark of a civilised society.

I welcome and rejoice in religious and cultural diversity. However, culture and religion should not be contrary to the law of the land or to the rights and welfare of any section of society. In your Lordships’ House, I have heard men and women from different ethnic, religious and cultural backgrounds support this view—we have heard that today. If we do not raise controversial issues, in whatever fora we can, issues will stagnate and fester.

I am a patron of the British Humanist Association and an honorary associate of the National Secular Society. Both organisations have challenged, as I do, customs that impinge on the rights of women and children.

Two tenets of this Bill stand out for me. One is that, to be effective and not discriminate, arbitration must be in line with UK equality laws. The second is that quasi-legal structures have grown up which women may not understand and they may therefore be confused about what is according to UK law and what is not. Of course, a woman’s freedom also includes the freedom to arbitrate and mediate on private affairs. However, women must engage in alternative dispute resolution freely, and their right not to be discriminated against on the grounds of gender must be followed, as enshrined in the Equality Act, the Human Rights Act and the European Convention on Human Rights.

The 2012 arbitration scheme from the Institute of Family Law Arbitrators includes divorce and the care of children. This relates to the Children Act, which states that the welfare of the child must be paramount. Courts of arbitration have no legal right to arbitrate on child custody. Divorce and the care of children are complex issues in any legal dispute but they are made worse if the woman is deemed to have fewer rights; for example, if her testimony is worth half that of a man’s.

Decisions on inheritance can be enforced only if compatible with UK law and public policy. For example, the unequal division of an estate between male and female children on intestacy would not be enforceable in UK law.

There may be pressure on women to submit to a religious court rather than a UK court for the determination of family or inheritance disputes. Women may think that their marriage, divorce or rights over children are guaranteed. Women must be better educated to understand what they are getting themselves into. I believe that there should be education, beginning in school, about the differences in law and that an information campaign should be set up to inform women about their rights in law.

All this would be useful, as are debates such as this one. Any highlighting of problems, and the discussion of those problems, can help rethinking and awareness. In the case of women suffering discrimination, it can help them unite to protect their rights and persons—I know that this is happening. Therefore, I hope that this Bill will serve to encourage discussion, information, clarification and change. Once again, I welcome the opportunity that the noble Baroness, Lady Cox, has provided.

Children and Families Bill

Baroness Massey of Darwen Excerpts

Monday 21st October 2013 Grand Committee

[Lord Northbourne (CB)]

My Lords, having been swept away at the end of the previous session, I now have the opening say-so. Both my amendments to this important Bill are about the problems of dysfunctional families and disadvantaged children. Although this Bill suggests many important ways in which current practice could be improved—and I support many of the changes in the Bill—it does not address the possibility of reducing the number of dysfunctional families and disadvantaged children in our society. It fails to address prevention. Prevention could and, in my view, should be an important part of this Bill. My Amendments 56 and 57 explore just two of the many possible ways in which we could reduce the number of dysfunctional families and disadvantaged children in our society in the future.

Amendment 56 is about defining the duties of a parent. We all know, alas, that too many young people become parents without thinking about what their child will need of them or what parenting will involve for their own future life and lifestyle. We all know that in good schools PSHE and SRE teachers do their best to teach young people these things but they need more help than we are giving them. The relevant law on this is the Children Act 1989. As your Lordships will know, it says in Section 3(1):

“In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

That definition may be helpful for lawyers who understand and have access to the relevant case law. It gives no clear guidance to a child or a teacher.

We need a much clearer and more understandable statement of the law, setting out the sort of role that we expect parents to play. Such a statement should not be based on outdated moral values but on the needs of the child. Of course, those needs include not only food, warmth, shelter and consistent care but being able to feel safe and loved—the secure attachment to one or two specific adults which gives a child a sense of being valued and which builds their self-confidence for life.

They have such a statement in Finland, in France and, oddly enough, in Scotland. I have used a Scottish form of words in this amendment to define the duties of a parent. This is a probing amendment and I would welcome comments on whether the wording I have suggested is helpful. For example, it may be that the duty of fathers and of mothers should be considered separately; I am not at all sure about that.

It is important to remember that the duties referred to in the Children Act are only part of the responsibilities of a parent, which is what that Act defines. Only if we as a society can agree a reasonable statement of the duties of a parent will it be possible for us to pass on to our children the obligations that parenthood will bring for them. I beg to move.

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the noble Lord, Lord Northbourne, for tabling this amendment. I, of course, agree that parents should support and guide their children: it is the key relationship. Mothers and fathers have joint responsibility. Like the noble Lord, Lord Northbourne, I agree that prevention is absolutely key to tackling dysfunction. His amendment takes note of supporting the child’s “health, development and welfare”. Like him, I suspect, I think that people are often not prepared for the responsibilities of parenthood and that we as a society have not taken this seriously, believing that parenthood comes naturally.

I am a great supporter of parenthood teaching in schools, clinics or wherever. Most young people become parents and often do not know much about the importance of child development, talking to children, setting boundaries and so on. Many parenthood classes are available for parents only once the child gets into trouble. Frankly, that is too late. Early intervention should start with parents but they are sometimes bewildered. Perhaps the Minister or somebody else knows how many parenthood schemes exist in this country to teach parents or future parents to be better parents, not when the child gets into trouble but as an education scheme for all parents. After all, not everybody has a super nanny, as in the television programme of that name, to iron out horrendous problems once the family has dug itself into a hole. Parents are often not well supported. I worry about austerity measures which hit poor families hardest and about child poverty policies, which may plunge even more parents into difficulty. It is a challenge to bring up children in any event; it must be extremely challenging to bring up children in poverty.

[The Earl of Listowel (CB)]

My Lords, I support Amendment 56 in the name of my noble friend Lord Northbourne, and regret that I failed to add my name to it. When I looked at the figures for the United States recently, I discovered that a third of boys, and two-thirds of black boys, were growing up without a father in the home, which is a pointer to where we might end up if we do not adopt my noble friend’s amendment. I have had the privilege of working with young people. I have worked with young people in hostels and boys have “adopted” me as their father. I have spoken with young men working in those hostels about what it was like for them to be brought up by their mothers on their own, and how guilty they felt about the burden they had put on them. The honourable Andrea Leadsom MP, who does such great work around early years provision, highlights the concern that when mothers bring children up on their own they risk feeling overwhelmed by that burden and withdraw their emotional support for their children.

I believe that this provision is already law in France and several other European countries. This is such an important issue that I hope the Minister will give a positive response. President Barack Obama grew up in a household without a father. Your Lordships may remember the speech he made as a senator in 2008.

He said:

“But if we are honest with ourselves, we’ll admit that … too many fathers … are … missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know how true this is in the African-American community. We know that more than half of all black children live in single-parent households, a number that has doubled—doubled—since we were children. We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioural problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it”.

That is the end of the quotation from his speech.

I hope that the Minister can give a very positive response to my noble friend’s amendment. Parents sticking together and sticking with their children is vital to the well-being of all our children. In my experience, children who do not have parents or carers who stick with them are unlikely to stick at friendships, at being husbands or wives or at jobs or difficult tasks themselves. I support my noble friend, and I look forward to the Minister’s response.

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[Lord Northbourne]

Although perhaps I did not make it clear when I was speaking, it is in a way obvious that my two amendments have pretty much the same objective. I took them separately because they have two completely different ways of approaching the problem, the second of which I believe is more exciting.

[Baroness Massey of Darwen]

My Lords, I am very grateful to the noble Lord, Lord Northbourne, for tabling this exciting amendment. Amendment 231 in my name asks all schools to ensure that children are educated and protected through school policies, pastoral care, linking with outside agencies and the curriculum. It goes wider than that in the name of the noble Lord, Lord Northbourne, but is of a similar tone.

The reason for my amendment and, I think, for the amendment in the name of the noble Lord, Lord Northbourne, is that pupils, teachers, parents and governors need clarity about what policy and practice is in a school. Otherwise, how can they be clear about what it is and how do they know how to operate? How do children know how to operate? For example, as regards behavioural policy in a primary school, pupils know how to behave because it is in the policy. Policy and practice should give clarity and security.

We have talked about the duties and responsibilities of raising children, and the importance of enabling young people, in an ideal situation, to learn about parenting long before they become parents, or perhaps later if they are in difficulties such as those that the noble Lord, Lord Ramsbotham, mentioned relating to the criminal justice system. I remember seeing a young man in jail being taught how to read to a four year-old with all the interaction that is necessary. It is never too late but it is preferable for that to happen earlier.

However, I take issue with the noble Lord, Lord Northbourne, in two instances. First, education about social and emotional development and responsibilities should happen before and after key stage 3. For a start, it should come from parents to children but, when talking about schools, it should happen from a young age through to when the child leaves. Schools should develop a spiral of curriculum and pastoral care which matches the age and stage of a child’s development. It should not be just at a particular age, and I do not think that it is. The issue is about a child’s right to an education.

On the other issue, I think that the noble Lord, Lord Northbourne, talked about the importance of teacher training. That is right but it is not always teachers who deliver personal, social and emotional education. I have seen many excellent school nurses giving sessions in the classroom to encourage pupils to think about issues around their own health. I have seen first-aiders talk about issues around helping others to be safe. I have even seen a teenage parent come into a class to talk about the experience of having a baby at a young age, which was a quite dramatic experience for the pupils concerned. Therefore, I say yes to all this about personal and social health education, and yes to policies and practice in schools being well advertised. However, I should like to look at just those two issues again with the noble Lord, Lord Northbourne.

[Lord Ramsbotham]

I, too, lend my support to the noble Lord, Lord Northbourne, and will link what I am going to say to my comments on Amendment 56. I have a grandson at a secondary school in Gloucestershire and, like the noble Lord, I was fascinated to see the material with which he and his parents were provided. Frankly, it was all about today and not about tomorrow. Although the quality is fairly good, I am quite certain that it could be improved.

Clause 70, later in this Bill, refers to the fact that education, health and care plans are allegedly to be denied to those being held in detention. Last week I had a meeting with two Ministers in the Department for Education who told me what progress has been made. What is most promising is that young offender institutions are to be classed as mainstream schools as far as the provision of the Bill is concerned. In welcoming the suggestion of the noble Lord, Lord Northbourne, that this guidance should be provided for schools, I should mention that young offender institutions should be included, absolutely for the reasons set out by the noble Baroness, Lady Massey. Above all, we must not exclude people in detention from learning to look after their children.

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In many ways, that guidance issued in 2000 was very specific and very detailed. It makes clear that—

[Baroness Massey of Darwen]

I am sorry to interrupt but is the Minister aware that the recent Ofsted report on personal, social and health education indicates that many schools are not carrying out their duties in that regard?

[Lord McNally]

Yes, I am aware of that. Our PSHE review concluded in March 2013 and found that the existing guidance offers a sound framework for sex and relationship education in schools. Sex and relationship education is a sensitive area in which expert organisations and professionals have an essential role to play, but this does not require the Government to revise the existing guidance. However, I agree with the noble Baroness that there are problems from school to school and this is an issue that we must continue to pursue. As the noble Baroness, Lady Howe, said in the previous debate and on other occasions, the media do not always give the most constructive and positive support for this aspect of education.

As I say, the guidance makes clear that all SRE should be age appropriate and that schools should ensure that young people,

“develop positive values and a moral framework that will guide their decisions, judgements and behaviour”.

In particular, paragraph 1.18 states that secondary schools should, among other issues, teach about,

“relationships, love and care and the responsibilities of parenthood as well as sex”,

and,

“taking on of responsibility and the consequences of one’s actions in relation to sexual activity and parenthood”.

The point that the noble Baroness, Lady Massey, made is also relevant in relation to writing things into legislation. There is a gap—you can write the most careful guidance, but how it is practised and carried out at the sharp end is another task, and one that we should address.

It is vital that schools prepare young people for later life, and especially the responsibilities of parenthood. However, the Government strongly believe that teachers need flexibility to use their professional judgment to decide when and how to provide SRE in their particular local circumstances, and to do so in an appropriate manner. We believe that it would be inappropriate to introduce a requirement for pupils in key stage 3, including those as young as 11, to be taught about parenting and sexual relationships. Teachers should retain discretion about whether to do so, while having regard to the Secretary of State’s guidance. Publishing the information set out in the current school information regulations is the best way for parents to have access to information; teachers should be given more freedoms, not fewer, to decide the contents of the school curriculum and how it is taught.

I hope that I have covered most of noble Lords’ concerns in that reply. The noble Lord, Lord Ramsbotham, talked about the need for this kind of education in young offender institutions. I agree that it is absolutely essential that it should be provided there. The noble Baronesses, Lady Tyler and Lady Massey, referred to the use of outside experts. Again, schools are free to use outside experts, and some to very good effect. But the head teacher should have final responsibility for which outside experts are brought in, and that is important. The noble Baroness, Lady Benjamin, made the valid point that it is about teaching wider life skills and relationships. But this is not something that schools alone should do. The media, particularly television, have a responsibility. I sometimes sit with my daughter watching very funny sitcoms, whose messages about sexual relationships are easy, to put it mildly. I often say to her, “That’s comedy—that ain’t reality”. I think that by the time they reached 40 and called it a day, all the members of “Friends” had slept with each other several times—but they all lived happily ever after. Perhaps that is one of the dangers of that kind of media.

I cannot really comment on the hostel closure mentioned by the noble Baroness, Lady Howarth, without knowing all the facts, but I fully endorse what she said about making sure that there is a joined-up policy.

As with the previous debate, I have been impressed by the breadth of opinion in support of what the noble Lord, Lord Northbourne, has done.



As I said, the Government are cautious about trying to write piety into legislation rather than ensuring that what is happening on the ground is effective, but we will be taking this further as the Bill progresses. In response to what the noble Lord, Lord Northbourne, said at the end of the previous debate, if he and a number of colleagues would like to meet me separately to discuss these issues between now and Report, I would be glad to do so. In the mean time, I hope that he will withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Massey of Darwen Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Avebury]

I am not sure that that proposition is right. I do not think that my noble friend had borne in mind the possibility that the child would do better financially under the CFA. That is a very important consideration. In fact, in my mind it is the determining consideration in how I approach this amendment. If the argument of my noble friend Lord Thomas of Gresford is correct, it is conclusive that we should not support the amendment but that we should allow cases to go forward under the CFA, under which people will be better compensated than they would have been.

[Baroness Massey of Darwen]

My Lords, I have put my name to an amendment in this group—that in the names of the noble Baroness, Lady Howe, and others. I simply make one appeal to the Government concerning their commitment to protect vulnerable children and young people.

I declare an interest as the chair of the All-Party Parliamentary Group for Children. Over the past year our theme has been vulnerable children. We have heard about the problems that such children and their families have in dealing with complex systems such as education, health and the law, and we have heard many passionate and committed speeches about these young people today. In my experience, this House has never been party-political on issues regarding children; it has always considered the well-being of children to be above party politics. That spirit has been shown today on the Benches opposite, and long may it continue.

The Minister for Children, Sarah Teather, for whom I have the greatest respect, made a commitment in 2010 to assess legislation against the needs of children, as enshrined in the United Nations Convention on the Rights of the Child, and I find it ironic that we are now considering legislation that will potentially damage vulnerable children and their families. The Government, in their report Positive for Youth—I shall not go into that but the commitment is there—made commitments to protect disadvantaged and vulnerable children, and the Liberal Democrat youth policy Free to be Young makes commitments to improve young people’s access to legal advice. I think we should all remember those commitments today. I trust that the Government will recognise that intervention at an early age, particularly for the vulnerable, is not only humane; it also benefits well-being and is cost effective. I hope that the Government will look again at the commitments to vulnerable children and young people.

[The Lord Bishop of Ripon and Leeds]

My Lords, as the first speaker from these Benches in this debate, I add my gratitude for all the work of Lord Newton of Braintree. It seems strange to be sitting here without his advice from behind me, as the noble Lord, Lord Bach, said earlier in the debate. He had immense care and concern for children’s needs and rights, which was evident right up to last week. Not to have his sharpness here in this debate is a loss for all of us, so our thanks to him.

The amendments would go a long way to providing security of legal aid for some of our most vulnerable children, at minimal cost. We seem now to have reached a point where legal aid will be provided for many children. I have listened carefully to what has been said by the noble Lords, Lord Thomas of Gresford and Lord Avebury. It seems to be almost accidental whether a particular child will come under the provisions of the Bill. The amendment moved by the noble Baroness, Lady Grey-Thompson, gives us the opportunity to treat all children in difficulties equally, with particular concern for education and sanctuary issues.

We all recognise the importance of education for all, so we must be concerned that Black Caribbean pupils, for example, according to the children’s commissioner, are four times more likely than others to be excluded permanently from school. Those children will often be vulnerable, frightened and very unsure about their future. They need the structure of the legal system to provide them with support at that point in their lives. Equally, we continue to affirm that we have an immigration system that deliberately provides sanctuary for children who have been victims of abuse of whatever kind. They may have been trafficked into this country—and I, too, welcome the Government’s changes on that issue. However, many will not have been trafficked; trafficking is extremely difficult to define. Nevertheless, they may have suffered sexual exploitation, domestic slavery or abuse. They may have been brought into this country as domestic slaves and will often have been abused. Some will be the subject of custody cases, which may lead to abuse or separation from a parent. Others would be in danger of abuse if they returned to a country where exploitation would continue.

Justice demands proper legal representation and the amendments provide a way of securing that at minimal cost. They would demonstrate our concern for the most vulnerable young people in our society. They are absolutely in accord with the Government’s aims and purposes, and I hope, therefore, that they will accept them

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Massey of Darwen Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, this group of amendments contains tremendous overlap. It is for that reason, among others, that your Lordships will see a number of our names on one another’s amendments. I am very happy to follow my noble and learned friend Lady Butler-Sloss, because we could not have a greater expert in what happens in courts. I am sure that we have all taken in everything that she was discussing just now.

I shall concentrate on the amendment that I have tabled, which is to do with young people with disability. As it stands, the Legal Aid, Sentencing and Punishment of Offenders Bill will lead to some 75,000 young people under 25 losing legal aid each year. This amendment would provide particular protection for young disabled people.

Young people with a disability have usually received special protection and additional access to services in recognition of the fact that they may, and probably will, need additional support. The amendment would ensure that they continued to be able to access legal aid up to the age of 24. The definition of disability is that used in the Equality Act 2010, which identifies a person as having a disability if they have a physical or mental impairment and if this impairment is expected to have a substantial and long- term adverse effect on their ability to perform normal day-to-day activities.

Other amendments to the Bill seek to protect access to legal aid for all children aged up to 18, but there is a significant precedent for extending additional protection to young people up to the age of 24 and particularly to young people with disabilities. The Connexions service, which was set up to provide help and advice to young people aged 13 to 19, extended this help to young people up to the age of 24 who had a disability or learning difficulty, encompassing those with a statement of special educational needs, mental health difficulties, autistic spectrum disorders, dyslexia, ADHD and physical, sensory and cognitive impairments.

We also know that disabled young people are more likely to experience legal problems than other young people or older people with disabilities. Data from the Civil and Social Justice Survey showed that 56 per cent of under-25 year-olds with long-term disabilities had experienced problems compared to 35 per cent of all young people. It also found that young disabled people were more likely to experience legal problems than older people with a disability—51 per cent compared with 37 per cent. Disabled young people in general were more likely to experience multiple legal problems, in particular problems relating to housing, debt and welfare benefits.

JustRights, a coalition of more than 30 organisations in the children’s, youth and legal advice sector co-ordinated by the Law Centres Federation and Youth Access, has provided me with a case study which shows how legal advice can be vital in helping young disabled people to access their rights.

Chantelle was 18 when she came to the law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college and were worried that they could not afford to buy her a car and that she would be unable to attend university. They had applied for disability living allowance for Chantelle, but had been refused. The law centre helped Chantelle appeal against the refusal, gathering evidence from her school and her hospital specialist and representing her at the benefit tribunal hearing. Chantelle was successful in her appeal and was awarded the low rate of the care component of DLA and the higher rate of the mobility component. She swapped her mobility payment for a Motability car and passed her driving test. Chantelle now has a place at university and will be able to drive herself there each day, making a huge difference to her independence and quality of life, and probably her ability not to be dependant on other forms of public support. We know that advice provided early in cases such as Chantelle’s is cost-effective, and saves money in the long run through preventing the costs of problems spiralling.

I support all the amendments in this group. I hope that this particular modest amendment will receive a sympathetic hearing and acceptance by the noble Lord, the Minister, and I hope that he will give equal consideration to the equally important amendments that others are proposing.

[Baroness Massey of Darwen]

I speak to Amendments 80A, 82A, 82B and 82C. Perhaps I may first say how delighted I am to be speaking after so many passionate speeches about children, children’s welfare, and children’s rights by so many noble Lords, because children are a touchstone as to how we treat those who need help. My Amendment 82A simply adds to the amendment tabled by the noble Baroness, Lady Howe, and she has spoken to that so I will not deal with it.

Before I speak to this group of amendments in my name I would like to add briefly to the concerns expressed so eloquently by the noble Baroness, Lady O’Loan, and the noble and learned Baroness, Lady Butler-Sloss. Before the dinner break, the noble Lord, Lord Newton, talked about the costs of taking children into care. He implied that there are—and I know that there are—huge costs in terms of finance and of social adjustment and academic achievement.

There is also a group of people whom we have not talked about this evening but whom I want to talk about: family-and-friends carers who can prevent children going into care and make sure they are well looked after. I want to make a plea for those people. The noble Lord, Lord McNally, was good enough to meet me and the Family Rights Alliance and a young family carer to discuss this. I hope he will be sympathetic. In a Green Paper on legal aid reform, the Government announced that they propose to withdraw legal aid from private law children applications. This will include applications by family-and-friends carers. A number of organisations concerned with the interests of children living with family-and-friends carers have raised anxieties about the impact of these proposals because such carers might in future be prevented, through lack of legal aid, from applying for the relevant order to provide permanence for a child, particularly when the other party in the proceedings, who is alleged to have failed in their parenting task, may be their son or daughter.

Following consultation on the Green Paper, the Government announced that a private law application would be retained within the scope of public funding, where the application was with a view to protecting the child who is at risk of abuse. This is not really the point. Clause 11 of the current Bill deals with the availability of public funding where the child is at risk of abuse. However the Government have made it clear that they will by regulation require that evidence of abuse is provided by the applicant in order for the application for public funding to be successful. This has its own limitations. The effect will be to prevent family members taking action to protect children when they are first at risk of harm—for example, when they are first subject to child protection enquiries. The 12-month time limit referred to in the Government’s response to consultation could also prevent a family-and-friends carer applying to court to take on the care of a child who is within the care system for more than 12 months. These potential carers will therefore not qualify for public funding to apply for residence or special guardianship orders because they fall outside the 12-month time limit. It is essential that family-and-friends carers with such an order have access to public funding to be legally represented at such applications. It is vital that the Government do not introduce such restrictions to legal aid, and I hope that the Minister will be able to comment on this, if not now then later.

I turn to my Amendments 80A, 80B and 82C. These seek to retain access to legal aid for young people aged up to 24 in social welfare cases. As it stand, the Bill will lead to nearly 26,000 people aged under 25 losing legal aid for social welfare cases each year—for example, over 9,000 for debt and 9,000 welfare benefit cases. The figure for employment cases is almost 2,000, while the 500,000 housing cases cost about £1.5 million.

The coalition has made commitments to support children and young people. For example, the recent Positive for Youth paper states that:

“This Government is passionate about creating a society that is positive for youth. Young people matter. They are important to us now, and to our future, and we need them to flourish”.

The MP Dr Julian Huppert supported this by saying that the Liberal Democrat youth policy included a commitment to providing young people with access to specialist support and advice on legal aid and responsibilities.

Young people’s alienation from the legal system and, in turn, from mainstream society needs to be addressed. Research, which has been quoted before, has shown that many young people view the legal system as there for their punishment rather than for their protection. Reform of legal aid provides a golden opportunity to create a more modern, client-centred system that does not serve to exclude this important section of society.

Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost just £5.8 million a year. In comparison, the Prince’s Trust estimates the weekly cost of youth unemployment at £20 million. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a very modest amount. I wonder if the numbers for these groups have been costed along with the other costs associated with them.

We know that many of the children and young people who seek help with social welfare problems are highly vulnerable and are unlikely to be able to navigate the legal system without help. Recent research shows that 80 per cent of 16 to 24 year-olds with civil justice problems fall into at least one vulnerable group—for example, they may have a disability or mental health problems, or they may have been a victim of crime. Half of the young people seeking advice are not in education, employment or training.

The Government’s recently published youth policy, which I quoted earlier, says that disadvantaged and vulnerable young people can be at risk of poor outcomes and need additional and early help to overcome the challenges that they face. Changing the Welfare Reform Bill may mean that more young people with disabilities face social welfare problems. The Bill removes the youth condition for qualification for employment and support allowance, which allowed disabled young people to qualify automatically for the contributory form of benefit. That means that many more disabled young people could potentially face means testing, although of course the House discussed this last week. The Bill also seeks to replace the disability living allowance with the personal independence payment, which will require a face-to-face assessment to qualify. This may lead to young people needing help to understand the new benefit regime.

With youth unemployment now over 1 million, this group of young people will be in particular need of support over the next few years and we cannot afford to abandon them. However, advice services for young people are already being cut. Local authorities are trying to spend 38 per cent less this year than last year on Connexions, the national information, advice and guidance service for 13 to 19 year-olds. Research by Youth Access, the national membership organisation for young people’s information, advice and counselling, found that 42 per cent of their members faced the risk of closure this year. Advice for children and young people can help stop problems escalating, generating considerable long-term cost savings. A new report by Youth Access on the impact of advice shows that removing legal advice from vulnerable children and young people may save money in the short term but actually cost more in the long term.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Massey of Darwen Excerpts

Tuesday 10th January 2012 Lords Chamber

It is important that this assessment should be made, and indeed my noble friend might have wanted to go further by requiring an annual assessment. At any rate, the Government should continue to examine the evidence before introducing policies that exclude the poor from access to justice. Parliament and indeed the Government themselves should have the opportunity to think again.

[Baroness Massey of Darwen]

My Lords, I want briefly to support this amendment moved by my noble friend and to welcome the contributions made by my noble friends Lord Judd and Lord Howarth about the potential downward spiral of misery that the Bill may bring on society. Of course we need a review of the costs for the groups and systems listed in this amendment. The lack of costing is very worrying, but what also concerns me is the impact on people’s welfare and health and on the stability of their lives. It has been said before that this is about justice and morality.

I want to give an example of the costs and impacts on young people. Later amendments will discuss the impact of the Bill on children and young people, on women and on those with disabilities. The noble and learned Baroness, Lady Butler-Sloss, has tabled a very comprehensive amendment, Amendment 33, on children affected by civil and family law proceedings. I have tabled amendments in the same group relating to legal aid for young people aged up to 24. However, I thought that I would flag up my concerns here in the hope that, in the gap between today and when the later amendments come up, the Minister will be able to give us more information not only about costs but about impacts. If the measures in the Bill do not save money in the long term—I repeat, in the long term—why have them?

As it stands, the Bill will lead to nearly 26,000 young people aged under 25 losing legal aid for social welfare cases each year. I will not go into a detailed breakdown now because I want to save that for my later amendments, but 26,000 young people may be plunged into misery and may not be able to find work, and their families will feel the impact of that, along with the rest of society. Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost around £5.8 million a year. By way of comparison, the Prince’s Trust estimates that the weekly cost of youth unemployment is £20 million, which is an enormous contrast. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a modest amount. I ask the Minister whether an assessment has been made of the size of these groups of young people and whether an estimate has been made of the costs that will be incurred by the measures proposed in this Bill. Also, how will the Government assess the potential of other impacts, such as those profiled by my noble friends Lord Howarth and Lord Judd? It is not just about money; it is about quality of life.

[Baroness Lister of Burtersett]

My Lords, like my noble friend Lady Massey, I want to draw attention to the impact of the proposals on quality of life. Like other noble Lords, I received a number of representations from organisations speaking out on behalf of various disadvantaged groups. Their representations bring home to me the need for a fine-grained impact analysis of the changes on people’s lives. The impact analysis that we have received does not provide that.

I want to draw attention to a few of these groups—we will talk about them in much greater depth later. My noble friend spoke about children and young people. The group JustRights has written about the vulnerability of those who are able to access legal aid in their own right. It says that 80 per cent of young people who report civil legal problems face other disadvantages such as lone parenthood, mental health issues and exclusion from education, employment and training. The group refers to the range of legal issues that these young people may need help with, one of them being immigration.

I spoke recently at a Law Society conference on social and economic human rights. A presentation was made by a group of young people from an organisation called Refugee Youth. Everyone at that conference was immensely impressed and moved by it. Afterwards, those young people wrote to me about the Bill. I hope that noble Lords will allow me to read from what they sent. They wrote:

“Many of us arrived as separated children, and have been through the asylum process. That has been successful for some of us, but not for all; and while many (not all) of us have been granted permission to stay in the UK, for some this has come from a non-asylum immigration claim”,

which is relevant to this Bill. They continue:

“Indeed many of us have experience of being refused asylum, but granted permission to stay for up to 3 years; and having to bring an immigration claim and appeal at the end of that period … We are very worried about the Legal Aid, Sentencing and Punishment of Offenders Bill, and the effect it will have on children and young people going through the immigration system in the future”.

They are not talking about themselves; they are talking about other young people who might be in the same position. They mention that it was said in the House of Commons that such young people would be assigned a social worker but they say why that is not adequate. They do not feel confident that social workers would have—and there is no reason why they should have—the legal expertise to be able to help such young people.

The organisation has produced a very useful briefing—I shall not read it all, obviously—in which it gives a number of reasons why it is so worried. It says:

“The court systems are intimidating and uncomfortable for young people … A court room is not made to be friendly, it is really intimidating. Having a lawyer makes you feel safe. As young people we feel we don’t have authority anywhere—let alone in a court room”.

It then quotes from some young people. One said:

“I had a really good lawyer and even though she was with me going to court was still one of the scariest things I have ever been through”—

this was from someone who had sought asylum. Another said:

“When I just had to say my name in court I was so scared and stuttering and shaking—I can’t even imagine how scary it would be to represent myself”.

Another young person said:

“It is too scary to relive traumatic experiences we have been through in court. Some things are too painful to represent ourselves”.

The organisation then makes the point:

“Unaccompanied young people rely on the expertise and knowledge of lawyers to represent them … Often we come from countries where you can’t criticize the police or the government or any authority, so sometimes we don’t know when it’s safe to speak out and tell our story. We need advice and support from our lawyers. When a lawyer is involved matters are taken more seriously”.

It is concerned about the quality of legal representation from private lawyers and the fact that they do not have the finances to pay for legal representation themselves. One individual said:

“If I hadn’t had that Legal Aid I don’t know what I would have done. I didn’t have a penny to pay for a lawyer and if I had to represent myself I would have no idea what evidence to provide”.

The organisation concludes:

“From our personal and lived experiences as young people involved in the asylum and immigration system we are absolutely certain that the proposed changes will have a severely damaging impact on us and our peers”.

Although that is a very subjective impact statement, it is rather telling and moving.

We have had other representations, such as from the National Federation of Women’s Institutes, which welcomes the concessions that have been made around issues of domestic violence and immigration but points out that this will not cover all women who are potentially affected. We will need to look at that and more general issues around domestic violence as we go through the Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Massey of Darwen Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Massey of Darwen]

My Lords, in this far-reaching and detailed debate, I shall speak about my concerns for children, young people and families in relation to the Bill. I am surrounded by eminent lawyers and I am not a lawyer, but when I hear about the concerns of legal organisations and the voluntary sector, that reinforces my own concerns.

I remember David Cameron recently expressing a commitment to turn around the lives of the country's most troubled families. When I see what is happening in education, health, social care, welfare reform and now this Bill, those words seem empty. I know that the Minister is interested in children and young people, but can he encourage the Government to examine the impact of their Bills, individually and collectively, on the lives of children and families? Otherwise, we will pay for this in more ways than one. I wish the Government would look at children and families in a holistic way. They may reach better conclusions.

I turn to the Bill. The Bar Council has stated:

“Justice does not come at any price. The Government has opted for cut price justice, against the views of the overwhelming majority of respondents to its consultation on legal aid”.

The Bar Council points out, as have many others, that removing private family law from the scope of legal aid may cost the taxpayer more, not less. As the noble Lord, Lord Alton, has just said, there will be fewer people represented annually in the family courts, and more children and young people will be affected by the withdrawal of legal aid. In the case of victims and alleged perpetrators of abuse, children and young people could be cross-examined by the accused, with resultant threats to their welfare. The Family Justice Review has pointed out that protection for vulnerable witnesses exists in criminal, but not in family, courts. Many organisations are concerned about the potential outcomes of this.

The Interdisciplinary Alliance for Children points out that the loss of legal aid will increase the trauma of divorce and separation and disputes about children. Family courts and family lawyers can help with solutions to difficult problems in a child-centred way. Issues not resolved through such negotiations and mediation may leave parents struggling, and many of them will not take on that struggle. This could mean that parents will lose contact with their children, or a loss of protection for the child. The alliance has stated that this Bill is not child or family friendly and does not recognise the impact on children caught in the middle of parental disputes. The Bill fails to recognise the impact on people who have to represent themselves. It ignores the impact on victims of domestic abuse, as has been so eloquently expressed in the debate. I will not say much about this, except that domestic abuse can often impinge on children and set up cycles of abuse, particularly in relation to the behaviour of boys.

In my capacity as chair of the National Treatment Agency for Substance Misuse, I have often had contact with the Kinship Care Alliance. Family and friend carers often care for a child because of a crisis in the parental home; for example, death, drug or alcohol misuse, divorce, prison or domestic violence. It is estimated that there are around 300,000 children living with friends or family carers. Previous Bills have discussed the plight of such carers, particularly grandparents who may be impoverished by this extra responsibility of looking after children. Following consultation on the Green Paper, the Government announced that private law applications would be retained within the scope of public funding where a child is at risk of abuse, but not in other circumstances. That could be, for example, where lack of legal aid prevents a family or friend applying for an order to provide a permanent residence for a child.

The Bill as it stands could prevent family members taking immediate action to protect children. To get public funding to apply for a residence or special guardianship order, they will have to provide evidence of abuse. This could delay the child being given residence in a relative's home. There are other issues here, such as the 12-month time limit when a child has been in the care system or under a child protection plan for more than 12 months. Early intervention by family and friend carers in the cases of such vulnerable children is vital. I beg the Government not to introduce such restrictions to legal aid and ask the Minister whether he will meet me and representatives of family and friend carers to discuss this serious and urgent issue.

There is much concern about child poverty. About 2.6 million children in the UK live in poverty, 1.14 million of these in a household affected by disability. Cuts to legal aid for advice on entitlement and appeals for welfare benefits will work against the Government’s ability to deliver on their targets. The organisation Just Rights points out that it would cost only £10 million to protect current legal aid entitlements for children under 18, and £40 million for 18 to 24 year-olds. Some 41,000 children aged under 18, and 124,000 18 to 24 year-olds, accessed legal aid in their own right last year. These cases related to employment, debt, immigration, welfare benefits, clinical negligence and criminal injuries. Community legal advice telephone services helped more than 21,000 children in 2010-11. It has been estimated that each year more than 1 million 16 to 24 year-olds failed to get advice for their civil justice problems, with knock-on costs of around £1 billion. The Government say that they will open an exceptional funding scheme for legal aid. What exactly does this mean? Can the Minister offer some clarity?

There is a Private Member's Bill on trafficking led by the noble Lord, Lord McColl, to be discussed this Friday. Child victims of trafficking may have immigration claims that are not asylum claims and will therefore no longer qualify for legal aid. Trafficking cases are very complex and require expert legal advice and representation. These cases of children who have been abused, exploited or neglected should surely be within the scope of legal aid.

There are concerns from the Standing Committee for Youth Justice, the Prison Reform Trust, Liberty and the Howard League about the youth justice elements of the Bill. These have been discussed earlier so I will not go into them but I am concerned about the issue of 17 year-olds. I think that the Minister made reference to this earlier. Perhaps it has been resolved but I would like to hear more about the safeguards regarding youth cautions and 17 year-olds.

I close by going back to the important issue of legal aid. Resolution, formerly the Solicitors Family Law Association, expresses its extreme concern that under this Bill the poorest and most vulnerable in society will have reduced access to justice. This concern is shared by many noble Lords and was eloquently expressed by the noble Baronesses, Lady Stern and Lady Mallalieu, and the noble Lord, Lord Alton. Another concern that many noble Lords have is that removing this access could increase government expenditure. Noble Lords will see this as an imperative to re-examine parts of the Bill. We cannot leave families, children and young people in distress. That is cruel and uneconomical. I look forward to the Minister’s response.

Public Disorder: Restorative Justice

Baroness Massey of Darwen Excerpts

Wednesday 26th October 2011 Lords Chamber

Asked By

[Baroness Massey of Darwen]

To ask Her Majesty’s Government whether they are considering the use of restorative justice in dealing with the riots in August.

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

My Lords, we are committed to delivering more restorative justice. We want to ensure that victims of the riots have a chance to explain the impact on them and that offenders face up to the consequences.

[Baroness Massey of Darwen]

I thank the Minister for that response. Would he agree that restorative justice schemes have resulted in victim satisfaction and cost-benefit analysis, and that reoffending has been reduced by such schemes? Would he say how many such schemes there are and whether they will be rolled out more extensively?

[Lord McNally]

Initially there were three such schemes. There have been about 60 enquiries about restorative justice, and we are very keen to roll out the schemes as quickly as possible. In response to the recent riots, there have been elements of restorative justice in both London and Manchester. I assure the noble Baroness that it is an element of the criminal justice system that we are very eager to learn lessons from and to expand.