Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 22nd October 2014 Lords Chamber

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Finlay of Llandaff (CB)]

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

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

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

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

--- Later in debate ---

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

[Lord Marks of Henley-on-Thames]

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

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

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

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

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

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

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

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

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

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

[The Earl of Listowel]

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

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

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