Criminal Justice and Courts Bill

Lord Beecham Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I am pleased to support my noble friend Lord Sharkey’s amendment. He has done all those who are committed to real equality for gay men and women, living and dead, a great service. I hope he has also ensured that Wednesday’s prom will be a sell-out, as indeed it should be.

I make three points in favour of what seems to be a sensible, proportionate and long overdue measure. First is the straightforward question of logic. If it is right that those who are alive can have quashed, under the Protection of Freedoms Act, convictions for a range of what were once sexual offences between consenting adults of the same sex, why cannot those who died before the law caught up with changes in society? To make a distinction between the living and the dead in this way seems to me to be wholly irrational.

Second is the question of equity and fairness. It is absolutely right that a pardon was granted to Alan Turing, whose tragic case served to highlight the plight of those who had criminal records for acts that should never have been crimes. However, what of the families and decedents of ordinary people? As the noble Lord said, there were up to 60,000 of them over the many generations when a sexual act between men was an offence. Benjamin Cohen, the campaigning publisher of PinkNews, which does so much to stand up for the rights of the gay community, made the point well in a letter to me:

“Almost as soon as the Protection of Freedoms Bill was passed, PinkNews readers questioned why those who had passed away could never have their name cleared, and the royal pardon granted to Alan Turing also posed many questions. Why him and not others, and not just famous people like Oscar Wilde?”.

That question needs to be answered. The noble Lord’s amendment does just that.

Finally, there is one other important point. The amendment sends a signal to the wider international community. My noble friend Lord Lexden and I, along with others across the House, have on many occasions raised the shameful treatment of homosexual men and women in the Commonwealth, where our poisonous imperial legacy still means that people of the same sex who love each other face prison and, in some cases, the death penalty when they display that love. We have done much in recent years to show those countries that we are absolutely setting our own house in order. The Protection of Freedoms Act and the equal marriage Act were hugely important parts of that process. Now it seems to me we have another opportunity to show the states that maintain repressive regimes how we have disowned the barbaric part of our past, ensuring that those who suffered as a result of that path and their families will benefit from the equality that now exists, even in death. We can then urge that those states too should begin what will be a long and slow process of decriminalisation. The amendment, which I hope the Minister will support, would be a potent symbolic act in that quest.

I was recently rereading EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the amendment. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those who were sentenced to imprisonment with hard labour around the time that novel was written would now be dead, taking their shame, guilt and, in so many cases, criminal record with them to the grave. Forster said on the front page of his masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, happier times never arrived. However, they are here now and the amendment is our opportunity to do right by those who were not as lucky as us.

[Lord Beecham (Lab)]

My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.

[Lord Faulks]

My Lords, this has been a short, very well informed and powerful debate. I pay tribute to my noble friend Lord Sharkey and others for all they have done relating to Alan Turing and to the amendment to the Protection of Freedoms Act. That Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people aged over 16. The House is grateful too to my noble friend Lord Lexden for his usual accurate and illuminating historical analysis of the origins of this sad state of affairs, which gave rise to so many convictions and caused so much unhappiness.

A disregard results in a person’s relevant convictions being removed from the records held by the police and the courts. Those convictions will therefore no longer appear on a criminal records check and the individual never has to declare them, in any circumstances. However—this is where the amendment is concerned—where someone has died, the intended effect of these provisions would apply. The provisions in the Protection of Freedoms Act are designed to help living individuals get on with their lives free of the stigma of the disregarded offence. I fully appreciate and sympathise with the intention behind the amendment, but the Government are concerned that there would not be a practical benefit to the change. A disregard would not allow the applicant, on behalf of a deceased person, to say that the deceased person was incorrectly convicted, nor that he or she has received a pardon. It is important to remember the rationale that lies behind this. The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.

The Government are still concerned that such an amendment would introduce a disproportionate burden on public resources; reference was made to a similar answer given from the Dispatch Box, not by me but by another Minister. For living people, the Protection of Freedoms Act will amend the data used for criminal records checks for living people. When someone is deceased, the offence is more likely to have taken place prior to the establishment of the National Policing Improvement Agency’s names database. Identifying appropriate records would be a lengthy, expensive and uncertain task. There is less certainty that any records can be identified, and those that are found may be insufficient to be sure that offences were consensual and with a person aged over 16.

The Government are concerned this would place a disproportionate burden on existing resources at the Home Office and on the police service. My noble friend Lord Sharkey referred to the answer he was given by a Home Office Minister to a question about the number of people who had made applications, following the estimate of 16,000. I am told that it is true it has now risen to 192 from 185. However, noble Lords will appreciate that departments are operating under severe financial restrictions. While we believe that the cost of dealing with applications from those whose lives continue to be affected is justified in the current climate, we cannot agree that costs, which we believe will be significantly higher for each application, could be justified in trying to deal with the records of those who have died. In our view, the limited resources should be directed at those who continue to have difficulties as a result of their conviction or caution for these offences. I need hardly stress that there is a difference between a pardon and a disregard.

The noble Lord, Lord Beecham, made an interesting, bold suggestion. He rightly predicted that I was unlikely to swallow the suggestion from the Dispatch Box, sincerely though it was made. My initial reaction is that, if there were to be a blanket amnesty, as I think he was proposing, we would need to go through this case by case to establish whether this act was consensual and therefore within the scope of the Act.

Therefore, while having considerable sympathy with all that lies behind the amendment, the Government are still not in a position to accept it as tabled by my noble friend Lord Sharkey. However, I appreciate that there is a feeling that something ought to be done to right a historic injustice. I can certainly—without, I hope, raising any expectations—at least agree to facilitate a meeting with the Minister to discuss this matter further. However, I emphasise that I cannot raise expectations and the position at the moment is precisely as I have outlined it. In those circumstances, notwithstanding the arguments that have been put forward, I hope that my noble friend will be prepared to withdraw his amendment.

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Moved by

[Lord Beecham]

42E: Clause 29, page 29, line 34, at end insert—
“(d) secure children’s homes.”

[Lord Beecham]

My Lords, at Second Reading, the Minister referred to a “network” of secure colleges, of which the planned facility at Glen Parva in Leicestershire is to be the first. This so-called network would consist of precisely three establishments, each housing around 320 young offenders, very many of whom will of necessity be a long way from home and family. That is not a network as most people would understand the term.

Some of us were recently treated to an exposition of the plans for the college, kindly organised by the Minister, where we heard from the developers, Wates. The technology was attractive and smart, which is more than can be said for what passes for the thinking behind the concept. It became apparent from the answers to questions from the noble Lord, Lord Carlile, who is not now in his place, that not only did the site have severe limitations in terms of the facilities, particularly outdoor and recreational facilities, but that instead of the intended function of the site dictating its location and size, the site, which was already owned by the department, dictated the nature of the development. Its limitations in terms of size and location were simply never addressed.

The Government are pressing ahead with a scheme—to the extent of going out to tender—which is property-based rather than service-based. Given the paucity of evidence of support for the project during the consultation exercise, with the Children’s Commissioner, the Chief Inspector of Prisons and a host of organisations expressing serious concerns and objections, this is completely unacceptable. I have today received the reply to a Written Question about this process, which makes interesting reading. It refers to the Government’s invitation to,

“interested parties to develop propositions of their vision for implementing Secure Colleges”.—[Official Report, 16/7/14; col. WA 130.]

It goes on to say that a competition was launched in January, for which all of four bidders submitted tenders. The contract has now been let, all before Parliament has debated—never mind passed—the legislation. A separate competition to appoint an operator will take place, with a view to that taking effect next year.

As the series of amendments we are debating demonstrates, there is virtually no detail about cost or how the college is to be run. On the contrary, the Government make a virtue of saying that they have invited the potential contractors to say what they propose to do. The impact assessment—unusually flimsy even by the MoJ’s standards—says:

“There is … some uncertainty over the level of operating costs we would expect to achieve through a competition”—

a masterly understatement. The same applies to the estimated capital costs of £85 million. When my honourable friend Dan Jarvis MP tabled a Parliamentary Question about the latter, he was told:

“To avoid prejudicing the effectiveness of the design and build competition … the Ministry of Justice will not be able to publish a breakdown of the budget until the competition has been completed”.—[Official Report, Commons, 17/3/14; col. 438W.]

It irresistibly brings to mind the words “buying”, “pig” and “poke”. Let us be clear: the objective of providing better education for these youngsters is wholly admirable—not least in literacy and numeracy skills—and will command universal support, but there is absolutely no detail on how this is to be achieved. The Government seem to imagine the college as a kind of Eton for delinquents where inmate students will start their course in, say, the autumn term and progress through until they have completed however many terms they remain there. The reality, of course, will be different.

The average stay in youth custody is all of 79 days, as the Justice Committee observed. The youngsters, therefore, will come and go at different times and for different lengths of time. Robert Buckland MP, now promoted to Solicitor-General—an appointment well received across the political spectrum—asked a series of questions in the Public Bill Committee about the actual working of the college, the level of provision and the types of staff to be employed and their training. He pointed out that the only staff specifically mentioned are custody officers, whose duties are not defined and, strikingly:

“The words teacher, psychiatrist, social worker, and counsellor do not appear in the schedule”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 280.]

He asked about the child to adult ratio and to these questions, posed again in the amendments we are discussing, answer came there none.

Jeremy Wright MP—whose elevation to the position of Attorney-General in place of Dominic Grieve was greeted with rather less acclaim than that of the new Solicitor-General in the light of his aversion to the Human Rights Act and the European Convention on Human Rights—could say about teachers only that,

“it is likely that an operator of a secure college will recruit a number of qualified teachers”.

He also said that,

“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; cols. 291-92.]

No indication was given about health issues, including how mental health is to be treated. Of course NHS England would have the responsibility, but how will this be exercised, especially with short-stay inmates? What contractual conditions on these matters do the Government have in mind—if any? Will these two simply be left to the education providers to determine? I recall the lines from TS Eliot’s “The Love Song of J Alfred Prufrock”:

“And time yet for a hundred indecisions,

And for a hundred visions and revisions”.

To venture another quotation, there is a line from “Richard III” in his speech to the troops before the Battle of Bosworth:

“Remember whom you are to cope withal”.

That is something the Government seem conspicuously to have failed to remember. The colleges will deal with damaged, vulnerable youngsters. A survey last year found that 65% of girls and 37% of boys in custody were last at school aged 14 or under, 86% had been excluded, 60% had communication difficulties, 75% had literacy difficulties and 25% had learning difficulties—a matter which the noble Lord, Lord Ramsbotham, has raised repeatedly. All this means that they require strong educational support. More than 30% of boys and 60% of girls had been in care, 41% had a drugs problem and 19% of boys had emotional or mental health problems.

The Government’s proposal is to warehouse the whole age range—both sexes—in the juvenile equivalent of a Titan prison. How can it be right to place a small number of girls in an institution which, given their numbers, will be even more likely to be remote from their homes? How can it be right to place 12 to 15 year-olds alongside older adolescents? It cannot be intended that they would attend the same lessons, take part in the same recreational activities and receive the same psychological and medical support.

The Joint Committee on Human Rights points out that the plans do not accord with international standards governing the administration of juvenile justice which, for example, should include,

“small open facilities where children can be tended to on an individual basis and so avoid the additional negative effects of deprivation of liberty; and that institutions should be decentralised to allow for children to continue having access to their families and their communities”.

The Joint Committee went on to note that there was no equality impact assessment. What response does the Minister make to the recommendation that these should be made and provided as soon as possible, especially in relation to the impact on girls and younger children? What of the call for more information about special educational needs provision in the colleges?

The amendments in my name and that of the noble Lord, Lord Ramsbotham, are designed to address these issues and ensure that if the policy goes forward—to which issue I will return later—there will at least be an obligation on the Government to explain not merely what they seek to achieve but precisely what will be achieved, and with what safeguards, on the issues that I and others identify in these debates. Amendment 42E would add secure children’s homes to the list of places the Secretary of State may provide for youngsters sentenced to detention. Such homes are currently provided by local authorities. It would be necessary to develop a joint approach in this context. Amendment 42K would require the Secretary of State to ensure that sufficient secure home places were available. Amendments 42F and 42G would exclude girls and children under 15 from secure colleges. Amendment 42J would require adequate specialist provision to cater for the often complex health and well-being needs of offenders in secure colleges.

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[Lord Faulks]

I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.

We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provide that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,

“so serious that neither a community sentence nor a fine alone can be justified”.

That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.

As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.

When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.

Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.

I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.

[Lord Beecham]

My Lords, I look forward to whiling away the long Summer Recess by reading the Minister’s helpful replies in Hansard, and his even more helpful letters, which will no doubt find their way to me and to other noble Lords. It is, however, necessary to say that what we are being effectively invited to do is to sign a blank cheque to as yet unknown operators of an entirely new institution conceived on the basis of no evidence and with no clear idea of how it is to operate.

In a particularly sensitive area of penal policy, indeed social policy, that is simply unsatisfactory, and I have no doubt that many of us—from different parts of the House—will wish to return to these matters on Report. Having said that, I beg leave to withdraw the amendment.

Amendment 42E withdrawn.

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[Lord Beecham]

My Lords, one of the most reprehensible provisions in this deeply flawed part of the Bill is that dealing with the power to be invested in those contracted to run secure colleges to use force to maintain good order and discipline, as set out in paragraphs 8, 9 and 10 of Schedule 6. Curiously, paragraph 10 of the schedule empowers a secure college custody officer, whose qualifications, as we have already heard, are not prescribed, to use reasonable force “where necessary” in carrying out the functions set out in paragraphs 6 and 9,

“if authorised to do so by secure college rules”.

Yet, as we have already heard, the Bill provides no mechanism for parliamentary approval of those rules.

The schedule therefore creates a situation in which force can be used—on children as young as 12 as the Bill now stands—to,

“prevent their escape … to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts … to ensure good order and discipline … and … to attend to their well-being”.

The notion of exercising force to attend to somebody’s well-being is intriguing. It would be interesting to hear the Minister’s explanation of that term. In addition, the custodial officer may use such force to search a person detained in the college. We are not just talking about conduct but about searches. These are very widespread areas in which force can be used.

As we have heard, the Joint Committee pointed out that this topic has been exhaustively examined by the committee itself, beginning as long ago as 2007-08 with its report The Use of Restraint in Secure Training Centres, and its view was upheld by the Court of Appeal which held that the use of force to maintain good order and discipline was incompatible with Article 3 of the European Convention on Human Rights which prescribes the right not to be subjected to inhuman and degrading treatment. Amazingly, the Government sought to argue that the court’s decision was limited to particular techniques to cause pain, whereas the committee points out that the court’s judgment,

“was quite unequivocal that the Rules were … incompatible with Articles 3 and 8 ECHR ‘and must be quashed on that ground’”.

The committee went on to dismiss the ludicrous attempt by the Government to shelter behind the fact that the Bill leaves the use of force to be defined by the college rules. It goes on to question the compatibility of the use of force to enforce good order and discipline with the UK’s obligations under the UN Convention on the Rights of the Child, as referred to by the noble Lord, Lord Marks, and the UN Convention against Torture. The former explicitly declares:

“In all actions concerning children … the best interests of the child shall be a primary consideration”.