Criminal Justice and Courts Bill

Lord Beecham Excerpts

Monday 10th November 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, I can be brief because I hope, and have reason to believe, that the Minister will indicate that he can give me the comfort I am seeking and which this amendment is designed to achieve. Noble Lords will recall that the Minister tabled a government amendment on Report that was designed to introduce a new figure into the criminal justice scene. He is to be the recall adjudicator and he will take over the responsibilities of the Parole Board in respect of reviewing those who have been released on licence but are being recalled for reasons such as their committing another offence. This could be of serious importance both to the public and, of course, to the offender who is being returned to prison. His liberty is at stake.

When the Minister introduced the amendment, he was not in a position to provide any details that would enable the quality of what was being proposed to be assessed. The noble Lord, Lord Beecham, who I am pleased to see in his seat, described it—I suggest accurately—as seeking a “blank cheque”. As we all know, it is never wise even to give Governments a blank cheque because you may find that it is not used in precisely the way that was intended. The noble Lord sought those details and, while giving the proposal a general welcome and hoping it would be successful, sought to impose both a sunrise clause and a sunset clause to cover the situation being created by the amendment.

The Government had acted on this so late in the day because of a decision of the Supreme Court in a case which was discussed on Report, and which indicated that it would be possible to have a body that was not necessarily created as a proper judicial body to perform this function—a sort of quasi-judicial body. The interpretation by the Supreme Court of Article 5 of the European Convention on Human Rights indicated that what was determinative was the original court sentencing, not the body reviewing the recall.

The matter was left at that, but I suggested on Report that the position was unsatisfactory and expressed the hope that the Government would consider the situation further. However, in case they did not do so, I tabled the amendment in question. It sets out what I would suggest is the minimum amount of information that needs to be provided before the new body is created. It would give those who are concerned about saving money in the hard-pressed criminal justice system information about cost and would seek information about the quality of those who are to be the new adjudicators on recall applications.

Before the new system is introduced it is important that Parliament should be given information that would enable it to use its powers to scrutinise what is proposed. The Minister accepted that there was an obligation for fairness in that situation, notwithstanding the decision of the Supreme Court in the Whiston case, 1914, UKSC39. That made it clear that he was thinking along the same lines as those who, like me, were concerned about what the quality of this new body would be.

If the Minister is prepared to give an undertaking that he would arrange for a report to be made to Parliament, setting out enough information to enable what was proposed to be evaluated, I need not detain the House further. In order to give the Minister an indication of whether what I have been told is correct, I propose to say no more, but at this stage formally to move my amendment.

[Lord Beecham (Lab)]

My Lords, I understand that the Minister may accept the amendment of the noble and learned Lord, Lord Woolf, and in that case the noble and learned Lord will have entered the fold, but this time it is the ministerial sheep who will emerge wearing the Woolf’s clothing—and for that I am sure the House will be grateful.

The noble and learned Lord identified some of the potential problems that need clarifying and we look forward to receiving that clarification. I would like to add another issue that was raised in the debate on Report, and that is the possible availability of legal aid for such applications. I dare say that the Minister will confirm that that will at least be considered and that any reference to it will be contained in such a report in due course.

One other matter to touch on is no doubt encompassed within the terms of the amendment. There was an indication at an earlier stage that the Government would possibly be looking to the magistracy as a source of potential recruitment for those who would undertake this responsibility. The matter has aroused some concern. Obviously I am not asking the Minister to give an indication finally one way or the other, but I take it that he would confirm at least that that is not the only possibility that will be looked at—in which case we will await the Government’s response in due course with keen anticipation.

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

My Lords, I thank the noble and learned Lord, Lord Woolf, for his helpful explanation of the amendment to Clause 8 in his name, and for helpfully setting out the concerns that lie behind it. I understand them, and why the noble and learned Lord seeks to make sure that Parliament is given the opportunity to consider a report by the Secretary of State about how the recall adjudicator model will operate before the provisions can be brought into force. I have no objection to the principle of what his amendment is seeking to achieve and am happy to make a commitment that before the recall adjudicator provisions are brought into force, the Government will produce a report for Parliament on matters such as the recruitment process, qualifications, training and costs.

The amendment of the noble and learned Lord is quite specific on some aspects of what the report must contain. I bear in mind what he said, namely that this should be a minimum, as he saw it; we do not indeed anticipate that it would be restricted entirely to those matters. In particular he is specific about the anticipated costs of the recall adjudicator system compared to the costs of recruiting more Parole Board members and case managers.

While the Government would be happy to provide an analysis of the respective costs and benefits of the new model—and indeed we will be publishing a further impact assessment on this—we would not wish to be tied to including in the report such a direct comparison of the sort prescribed in the amendment. This is a constantly evolving area of work, with the Parole Board itself driving forward changes to its process, and new operating models, and we would want our cost-benefit analysis to have the flexibility to take account of those developments rather than tying ourselves in the legislation to making this very specific cost comparison. But we will provide information as to costs.

However, I accept the point and agree that our report should set out the respective costs of the new process and systems compared to carrying on with the Parole Board model. The Government’s position is that we would have no objection to providing a report on the sort of information that the noble and learned Lord asks for, but until we have had more time to consider exactly what that report should contain and how best to present the information, we would not wish to be constrained by the exact requirements of the noble and learned Lord’s amendment.

When the Government introduced the recall adjudicator provisions, I explained that the aim was to introduce greater flexibility in the way that determinate recall sentences are reviewed and to allow the Parole Board to concentrate its resources on indeterminate sentence prisoners. There is a great deal of further work to be done on the detail. The noble and learned Lord was quite right to identify the case of Whiston and the decision of the Supreme Court, which enabled the Government to bring forward this amendment, albeit on Report—but we would not have been able to bring it forward before then because the decision had not been reached. I think that inadvertently the noble and learned Lord suggested that the decision had been reached in 1914. It was a little more recent than that—2014, to be precise—but I am sure nobody misunderstood that. The Government move a little faster than that.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have given the Minister’s office notice of the point that I am about to raise. It is to do with youth anonymity, which is a slightly different point from that made by the noble Earl.

On Report, the Government introduced amendments which are now Clause 77 of the Bill. Those amendments gave lifetime reporting restrictions in criminal proceedings for witnesses and victims under 18. The amendments clearly give the judge discretion to give lifetime anonymity to witnesses and victims. It is also clear from the Government’s amendments that that discretion of the judge does not extend to the accused.

What I would like to know—as I said, I have given notice of my question to the noble Lord’s office—is what the status would be of somebody if they had been found not guilty at trial. Clearly, after they have been found not guilty, they are no longer accused, but they may well still be a witness. Would that discretion of the judge extend to those found not guilty at trial?

[Lord Beecham]

My Lords, I commend and congratulate the noble Earl, Lord Listowel, on the progress that he appears to have been able to promote, and look forward to hearing the Minister confirm what the noble Earl has said after citing those very poignant cases. It seems that a mistake in the system can now be corrected. For that, although it has come late for the families to whom the noble Earl referred, I think everybody will be grateful. I congratulate the Minister in anticipation of his confirming that the Government have accepted that point. It is entirely to their credit that they have listened to the very strong representations made on that matter.

As to the point raised by my noble friend Lord Ponsonby, again, I hope that the Minister will be able to offer him some clarification of the situation along the lines that he has suggested.

[Baroness Williams of Crosby (LD)]

My Lords, I will make a brief intervention. I very much commend the amendment of the noble Earl, Lord Listowel. Quite simply, the position of 17 year-olds has changed radically since 1984. The proportion of young people staying on in education to 18 or beyond has almost doubled in that time, and many young people continue within their family structures until the age of 18, which was not so much the case in 1984. So it is important that the Government look at this. Schools continue to have responsibility for young people who are at school until the age of 18. It would therefore be rather bitter if that responsibility was recognised as continuing while people are at school, but then ending when they cease to be at school.

There is some very disturbing information about the number of young people who commit self-harm when in detention, as a result, for example, of very serious mental health problems. Without detaining the House of Lords further, it is worth looking at whether the age of 18 is not a more natural bridge to a young person becoming a fully responsible adult than the present age of 17. It might do something to reduce the suffering that some of these young people undergo in detention.

--- Later in debate ---

[Lord Beecham]

My Lords, I certainly endorse the remarks of the noble Lord, who has consistently questioned the detail of the Government’s proposals in respect of secure colleges. I must agree with him that the BMA report, published only last Tuesday, makes for sombre reading. The report emphasises the need for the state,

“to ensure that detained children and young people have access to healthcare that is appropriate for their age and health needs”—

which the EHRC has identified as a critical human rights challenge—given that,

“Custodial detention is the most extreme form of social exclusion that can be imposed by the state”.

That need is likely to be enhanced in the secure college context by the very nature of the institution and its physical remoteness from the family and community whence the offenders have come and to which they will return. After all, the report refers to the average time that offenders will be housed in the college as 85 days, which is not a long period. Clearly, after they move on, there will be a concomitant need for the provision of adequate healthcare and, indeed, educational provision.

It appears, then, that NHS England will have to do more than simply commission healthcare provision within the college. It is welcome that there will be such a physical provision, although the noble Lord has pointed out that, of itself, that will not be enough. NHS England will have to ensure that appropriate provision will be made when the offender returns home, quite conceivably in a different NHS region. How will that work? Will NHS England assume responsibility in a different region, or will it be involved from the outset? How will the commissioning process work, both for the period during which the offender is in the college and afterwards?

What will be the role of the relevant local authorities? Leicestershire, in the first instance, will be the site of the first college. Will the home authority deal with educational and childcare provision on the offender’s return home or return to residential care in the case of looked-after children? Have there been any discussions with local authorities—with Leicestershire in the first instance, which presumably will be able to provide educational and other provision if the project goes ahead within its boundaries—and with the Local Government Association on behalf of other local authorities generally, in respect of the need to follow up when the offender returns home?

The noble Lord has made a robust critique of the proposals this afternoon and throughout the debates on this Bill. When the Bill returns to the House of Commons, it is important that the other place should have a response to the questions that he has raised, the suggestions he has made and those which I have added.

However, at this stage, I join the noble Lord in expressing our thanks to the Minister who has, as ever, argued the Government’s case with great skill and perhaps conviction—but certainly with great skill. We are grateful to him and to the Bill team for the assistance that they have given. In some respects, the Bill has been improved, but this area remains extremely problematic. I hope that the Minister will be able to persuade his colleagues to look again at the questions and issues that have been raised, in which case he will be entitled to even more gratitude than that which I and others now extend to him.

[Lord Faulks]

My Lords, I am, of course, disappointed that the noble Lord, Lord Ramsbotham, remains concerned about the provisions in the Bill to create secure colleges. With 68% of young people reoffending within a year of leaving custody, the Government have taken the view that it is clear that things must change. As the House knows, secure colleges will put high-quality education at the centre of efforts to rehabilitate young offenders. These provisions in the Bill provide the framework for this approach.

As the noble Lord was good enough to say, the Government have gone to great lengths to engage Peers, stakeholders, practitioners and experts—and, indeed, young offenders themselves—on our plans. Indeed, we are currently consulting on our approach to secure college rules and, in response to concerns voiced in this House, we have amended the Bill to make these rules subject to the affirmative procedure to the extent that they authorise force, which was an area of particular concern.

The noble Lord described my position as being rather like that of a tank commander. I am not sure whether that was a compliment or the opposite. Be that as it may, it would be wrong to suggest that the Government are frozen in a rigid posture in responding to any new knowledge or learning that is available on the best way to treat these particularly vulnerable young people. The report from the BMA published last Tuesday will inform the Government’s approach to this issue and, indeed, to all issues.

Of course, the noble Lord is quite right, as was the noble Lord, Lord Beecham, to focus on the health needs of this cohort. The Government have worked closely with NHS England since the inception of the proposal, and I assure the noble Lord and the House that we have a very constructive and well established relationship with the Department of Health and NHS England on youth justice. I should remind the House that NHS England commissions healthcare for young people in custody. During the debates, I attempted to indicate to the House how the provision of healthcare within the secure college should enable its better delivery to these young people—better, we hope, than in the current youth custody estate.

As I say, we continue to develop these plans. We will, of course, bear in mind all advice from whatever source, particularly any new learning that is available. However, we continue to believe that these secure colleges—whatever anxiety may reasonably be expressed about them—will provide an appropriate means of giving education to young people who, sadly, have often lacked any continuity in their education and, at the same time, help them to rehabilitate and to emerge at the end of their sentence with a much better chance of leading useful lives. I hope that I have gone some way to reassure the noble Lord and ask the House to pass the Bill.

[Lord Beecham]

My Lords, before the Minister sits down, I would be grateful if he would comment on the role of local authorities through their children’s services departments, in addition to the health aspect. The two cannot be divided.

[Lord Faulks]

They cannot—but I am not going to comment in detail from the Dispatch Box on those precise roles. Of course, as the noble Lord will be aware, local authorities have statutory functions in relation to all young people in their local authority area. Those duties will continue, depending on the geographical position of the young person—and of course the NHS has its own obligations, wherever that individual may be. If I have any further information to elaborate upon my answer to that question, I will do so in writing.

Bill passed and returned to the Commons with amendments.