Criminal Justice and Courts Bill

Debate between Lord Beecham and Baroness Linklater of Butterstone

Wednesday 22nd October 2014 Lords Chamber

[Baroness Linklater of Butterstone (LD)]

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

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

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

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

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

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

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

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

“maintain good order and discipline”—

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

“maintaining a safe and stable environment”.

The criteria are going to be so important.

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

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

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

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

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

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

[Lord Beecham]

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

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

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

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

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

“mental or physical health needs”,

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

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

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

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

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

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

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

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

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

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

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

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

“ensure good order and discipline”,

but to prevent escape and,

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

unspecified—and,

“to attend to their well-being”,

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

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

Offender Rehabilitation Bill [HL]

Debate between Lord Beecham and Baroness Linklater of Butterstone

Tuesday 11th June 2013 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, I, too, cannot remain silent. I am so glad that we are privileged to have the noble Baroness, Lady Corston, to add her voice to this debate. The crucial thing is that we have not managed to listen hard enough before. There is no question that women are different from men. They are not just differently shaped; they have particular needs and they are absolutely specific. We have known this for years. It is possibly boring but quite graphic to look at just a few of the facts and figures. Women serve very short sentences on the whole, with 58% serving six months or less and many only four months, or a matter of weeks. The sentences are for non-violent offences; we do not need to be protected from these women. Some 81% are for shoplifting, and we know that most shoplifting is for food for their children or for drugs. About 60% of the women, in fact, are drug users.

The final thing, which the noble Baroness, Lady Corston, also mentioned, is that the collateral damage of the imprisonment of women is absolutely unquantifiable. If more than 17,000 children a year experience and suffer separation from their mothers, that damage does not really take a lot of imagination to assess. Some terribly graphic reports have been published. For many children, to be separated in this way from their parents is like a bereavement: in their eyes, their mothers have died. This is a terrible thing to have to experience, but this is what we are doing to this primarily non-violent, very vulnerable, group of people from whom we do not need to be protected.

The centres, which we have models for, do exist and it would not be difficult for the Government to develop them along those lines. Several years ago now, when I chaired the Rethinking Crime and Punishment initiative, we funded the Fawcett Society, which issued an important report, before even the noble Baroness, Lady Corston, saying that we should make this specialist provision. We now have one or two important Together Women groups, and a total in this country of about 55 groups altogether, which is not very many. We have the 218 service in Glasgow and the Willow partnership, which we are very proud of, but they are a drop in the ocean compared with the needs of these women. I have been to a women’s centre recently and not only were the women telling me how much their lives were being changed but there were people at the centre who had been users and were now coming back to support other people who were going through the same terrible experience.

The facts and the figures, as well as this kind of affective argument, seem irresistible. I hope that when this amendment talks about the particular needs of women that the Government will have ears to hear and will take this forward immediately.

[Lord Beecham]

My Lords, my noble friend Lady Corston, to whom tribute has been paid again today—as it is regularly, and rightly, when these matters come up—has spoken with her customary passion about the problem which her report so significantly addressed. The implementation of her report has, alas, as yet not gone far enough by any means. The Committee will, I am sure, agree completely with the thrust of her powerful argument this evening. I certainly support the amendment moved by the noble and learned Lord, to which other noble Lords have spoken.

It should not be necessary, but it still clearly is, to remind your Lordships’ House, and indeed others, of the impact of the present system on women offenders, particularly those who end up in custody. There is a shockingly high rate of suicide and self-harm for those in custody; it is much more significant than it is among male offenders. We are in essence discussing those who perhaps will be in custody for a short time, but even short-term prisoners will be subject to the temptation of self-harm, and that will apply, particularly again, to women. It is important that we look at this issue for a discrete group and take the sort of measures that deal properly with their problems. Although we are concerned today with the provisions of this Bill, that will need to be at various levels of the justice system. I hope we will have a sympathetic and practical response from the noble Lord when he replies.

I take this opportunity to refer again to resettlement prisons and women, because there is an issue here that that was mentioned on the last occasion in Committee and needs stressing: the proposal, which is welcome in principle, for resettlement prisons for those in custody who will be returned to the community to be nearer the place to which they will return. I pointed out that there are only 13 women’s prisons in this country and that there might well be a problem with housing women in a women’s institution close to where they live. It is a significant issue and a concern to organisations involved with this issue. It would be wrong to house women in an essentially male establishment simply because that happens to be nearer and there is no women’s institution in the appropriate geographical area. In fairness, in replying, the Minister did say:

“it is very important that we make the best use of the existing provision for women offenders in the prison estate, both taking account of its size and the geographical spread. We will be consulting with both providers and stakeholders to design the most suitable resettlement arrangements”.—[Official Report, 5/6/13; col. 1270.]

It is only a week since the noble Lord addressed the issue, and we are not expecting a result now, but an indication of the timescale for the consultation and who will be consulted would be welcome and would help to allay concerns about this issue. I hope we can get a sympathetic response.

Public Bodies Bill [HL]

Debate between Lord Beecham and Baroness Linklater of Butterstone

Monday 28th March 2011 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, it gives me enormous pleasure to follow my hero, the noble and learned Lord, Lord Woolf, who never speaks anything but words of the deepest wisdom.

Since we last debated the future of the Youth Justice Board, the folly of the Government’s plan to dismantle it seems ever more misjudged, unnecessary and worrying. It is misjudged because the work of the YJB is highly specialist, dealing as it does with the most damaged, difficult and needy children in our community, who must be managed by people with specific experience and expertise, as they have. Children are not—as I said in Committee—small adults and should definitely not be managed by civil servants from NOMS in the MoJ who just do not have the expertise and whose work is with adults, not children.

It is unnecessary because, as we heard so eloquently in Committee from the noble Lord, Lord Elton, the ministerial powers of oversight, responsibility and accountability, which has been an area of central concern to the Minister, Crispin Blunt, are already in place in statute, giving him the power to make changes, decisions and appointments and other wide-ranging powers of overall control.

It is worrying because the desire to abolish the YJB betrays a determined failure by the Government to appreciate just how important, effective and significant this work is with children and young people who offend or are at risk of offending. This work by the YJB over the past few years has resulted, as we have heard, and as the most recent figures show, in a further drop in reoffending by young people. It is an extraordinary achievement.

This failure is exacerbated by a wish to make a decision which is driven by administrative concerns, convenience and cost-cutting—the input side of the balance sheet—rather than recognising and valuing the outcomes now being seen by the YJB, whose work has truly taken off in the past few years and is now achieving real results in terms of properly embedding and co-ordinating the youth offending teams, reducing reoffending and offending through prevention and diversion schemes, joint publications of inquiries, the oversight of the setting of maintenance of standards of professional practice, and much more.

This Bill has rightly concerned itself with rationalising those public bodies which have developed over the years with bureaucracies growing, mopping up precious government resources and duplicating effort which could be absorbed in existing government departments. The tests against which an organisation is validated therefore are that it performs a specific, necessary public service, independently establishes facts and is politically impartial. The YJB's success against these tests is beyond doubt, just as its value is clear to the many bodies with which it works, several of which were quoted in Committee. I will add the words of the Children's Commissioner, who represents the voice of children in this country. She says:

“It is imperative that responsibility for the custodial component of the youth justice system is held by an agency that understands and appreciates the distinct and special needs of children and young people, particularly those who are vulnerable”.

It is because these tests are clearly being met and because of its track record of success and the considerable savings that are being made to the Exchequer through the success of diversion and prevention work, as well as because of the judgment of specialists in the field, that I believe that the YJB clearly should not be abolished.

Furthermore, the YJB itself is quite prepared to look at how to accommodate itself to the administrative thrust of government thinking. It is quite able to see a modus vivendi within the MoJ as an executive agency, with its specialist focus maintained, its separate identity from NOMS and its ability to work at arm’s length from government, just as NOMS and other organisations already do. It is a mystery to me why this option has been resisted so far by the ministry and why it appears that my dear noble friend the Minister and, particularly, his colleagues in the Commons are hell-bent on reinventing the wheel in the name of some perceived convenience. The idea that the work of the YJB could be taken over wholesale by Ministers and senior officials is totally unrealistic, particularly when it has taken the YJB years to reach its current levels of expertise. We have already heard from the noble Earl, Lord Listowel, about the marvellous Keppel unit at Wetherby YOI. It demonstrates the extent to which specialisms within the specialist provision of the children's estate are so necessary. It is probably saving lives in the process. I just hope and pray that we are not being served notice that other groups in the criminal justice system not currently at issue but seriously important, including women and the mentally ill, can expect no future special attention, and that the reports of the noble Baroness, Lady Corston, on women and of the noble Lord, Lord Bradley, on mental health, whose recommendations have had wide support, are now to be shelved.

We should acknowledge around this House and in the country at large our overriding duty of care for the youngest in our society who need us most and should remember our responsibilities to our most vulnerable children by ensuring that their needs can continue to be met by the very organisation which has the knowledge and skills. To do otherwise would be a serious dereliction of our collective duty. I wholeheartedly support the amendment.

[Lord Beecham]

My Lords, I start by tendering an apology to the Youth Justice Board and to your Lordships' House for a figure I gave in an earlier debate concerning the number of deaths of young offenders in custody. Those figures had improved substantially in recent years, but I was not aware of that fact. That improvement was in good part, of course, due to the efforts of the Youth Justice Board.

One might have thought that a Bill that deals with part of the justice system would rest upon a sound evidential base. Where is evidence to support the proposal contained in this Bill for the abolition of the Youth Justice Board? Such evidence as there is appears to point entirely the other way. As my noble friend Lord Warner and others have said, the reduction of about one-third in the number of young offenders in custody, in those who reoffend and in those who do not come before the courts at all because of policies of prevention and diversion, is testament to the successful approach of the board. That has been supported by a number of reports. The noble Earl, Lord Listowel, referred to the work of the Youth Justice Board in conjunction with local authority services, which was acknowledged as far back as 2004 when the Audit Commission reported.

Of course, the Audit Commission is also under sentence at the moment, although we have yet to see legislation about that. Even at that stage, the Audit Commission reported:

“The new structures work well. The YJB sets a clear national framework … and takes a lead role in monitoring progress”.

It also emphasised the role of the young offender teams. It stated that they,

“are critically placed between criminal justice, health and local government services to co-ordinate and deliver services to young offenders and the courts”.

A report commissioned by the previous Government concluded:

“Overall, the YJB earns its place as a crucial part of a system which aims to tackle one of the most serious social policy issues in this country”.

Most recently, there have been reports from the National Audit Office and, as my noble friend Lord Warner, mentioned, the Public Accounts Committee in terms of the recent statistics on the reduction of offending by young people. In a report published only three months ago, the National Audit Office declared:

“The Board … has been an effective leader of efforts to create and maintain a national youth justice system with a risk based approach, and in recent years key youth crime indicators have been falling substantially”.

The Public Accounts Committee report, which was published only six weeks ago, concluded:

“The youth justice system has been successful in reducing the number of criminal offences … an achievement in which the Youth Justice Board has played a central role”.

It continued:

“The planned abolition of the Youth Justice Board has arisen from a policy decision and not as a result of any assessment of the Board’s performance”.

The board has brought together a whole range of organisations and institutions working in youth justice. It has developed a substantial programme of secure estate commissioning. Indeed, it has been so successful that it decommissioned 900 places recently. Value for money is certainly very much part of its agenda. A range of other initiatives has been taken. Those initiatives range from the piloting of YOTs, as we have heard, to the delivery of the persistent young offenders’ pledge to halve the time from arrest to sentence, working with the parents of young offenders and much else besides.

Against that background, it is disconcerting that the Government still are unclear about how the functions of the board will be discharged in the future. In particular, there is widespread concern in your Lordships’ House and beyond about the potential transfer to the National Offender Management Service, which deals with adult offenders. NOMS, to put it mildly, has a chequered record. I would invite the Minister in his reply to assure the House that, if the amendment fails—I certainly hope that it will not—it would not be the Government’s intention to transfer the Youth Justice Board’s functions to the National Offender Management Service.

As my noble friend Lord Warner indicated, should the amendment fail, as a backstop, an agency would be a better solution. But given the pressures on the department, its ministerial members and the officials working within it, it is inconceivable that the Young Justice Board’s functions would be adequately discharged if they are simply transferred into the department. The independence, to a degree, that even an agency status would confer and, in particular, the separation of youth justice from adult justice and NOMS must be a precondition of any organisation of our services for young offenders.