Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Wednesday 22nd October 2014 Lords Chamber

Can the Minister tell us where is the evidence showing the effectiveness of a short education programme that takes young people with severe trauma, brain injury, learning difficulties and so on away from their own environment? Where is the evidence showing the benefit of moving them away from the area that they have come from and to which they will return, rather than investing in the type of accommodation that has already been found to have improved outcomes for some of these young offenders, where they are in much smaller groupings with very personalised detention, and with a view to trying to reintegrate them into a society which has failed them many times before they started offending?

[Lord Carlile of Berriew (LD)]

My Lords, perhaps I may start with a moment of generosity to my much admired noble friend the Minister. He has addressed the concerns which noble Lords expressed in the past by tabling Amendment 122, which provides for a statutory instrument, subject to the affirmative procedure, to be laid and passed before the rules could be brought into effect. I am sure that we are all grateful for that. However, there are problems with that proposal.

The first problem is that even the affirmative procedure gives limited opportunities to those parliamentarians—and there are many in your Lordships’ House with great relevant experience—who would wish to amend what is contained in the rules, because of course even affirmative resolution procedure instruments are not amendable. It therefore makes the affirmative resolution process a blunt instrument in dealing with these important issues.

I am very concerned about the timetable which has been placed upon us. There is a consultation—to which the noble Lord, Lord Ramsbotham, in his eloquent moving of his amendments, referred—which is to end near the end of November, and the Government’s response will follow two months thereafter. That is way outside the timetable placed on us for this Bill, including today’s debates. It is illogical and quite unnecessary to press a timetable that attempts to force us to reach important decisions today when those decisions might be informed by the consultation and the Government’s response to it. It is not unknown—indeed, it is common in your Lordships’ House—for the consultation process on any important issue to lead to amendment of the primary draft legislation placed before your Lordships. I respectfully entreat my noble friend to look at the consultation as a genuine process, not merely as a symbolic process to confirm what the Government would wish to have decided here today.

It is absolutely essential for us to see at least the shape and flavour of the rules that the Government wish to introduce. On restraint, the consultation document which was published only a few days ago contains one “indicative rule”, as it is described—a sort of suggestion of what might be a relevant rule. That is not a sufficient basis for the provision that we are debating now. Many well informed NGOs—and I declare the interest of having been at one time president of the Howard League, which is one of them—have, with other organisations, declared real misgivings, not so much about what is provided but about what they do not know is being provided. Therefore, in my view, this is all very premature.

We heard earlier from my noble friend Lord Marks the names of Gareth Myatt and Adam Rickwood. Just before I became president of the Howard League I was asked by that organisation to produce a report on the use of restraint on children in custody. That arose following the death of Gareth Myatt. Organisations such as the Howard League, and people who have been fairly intimately involved, do not let a day go by, when we think about these issues, without reflecting on that death. It seems to me that to proceed in this unnecessarily hasty way on a matter of such importance, without reflecting on the rules provided and whether they take into account the events that led to the death of Gareth Myatt, is not the right thing for your Lordships to do.

[The Earl of Listowel (CB)]

My Lords, I support the amendments tabled by my noble friend Lord Ramsbotham about delaying proceedings on this matter to give us more time to consider the detail before anything is put in place. I wish, as always, that I could support the Government because of their tremendous achievement, which must be repeated again and again, in taking 2,000 children out of custody in the past four or five years. Because of their humane achievement in bringing the number down from the all-time high of 3,000 children in custody—a number that was deplored by Members on all sides of your Lordships’ House—to, potentially, only 1,000 by this Christmas, I wish in my heart to support the Government as far as possible. I would also like to support them because the idea of basing an approach on education is, of course, immensely appealing.

There are, however, in these provisions shortcomings that have already been described. My concern is particularly about the risks that young people may experience in such a setting. On a recent visit to a young offender institution—I shall try not to repeat what I said in Committee, but I will repeat this point—I was given the example of 15 young people attacking two. When I first visited a YOI 15 years ago, there might have been three or four people attacking one or two, but with the gang culture now, it is normal—and a great source of worry and consideration to the governor and the prison officers—to have members of different gangs in prison, and to have to think about how to stop large numbers of boys beating up small numbers of boys. That is one aspect of risk.

Because the Government have been so successful in reducing the number of juveniles in the secure estate, we now have only the most troubled and challenging young people there. That may help to explain why it is difficult to reduce the reoffending rate further. It also means that those people are putting each other at greater risk than was the case in the past. Moreover, I learnt in an early experience of speaking to a prison officer that, contrary to expectation, people tend to be more challenging the younger they are, rather than it being the older ones who are most challenging. The older ones seem to have developed some sense of what one does and what one does not do, but the young ones just do not have that sense, so they can be very difficult to manage.

May I take your Lordships back to 1998, and the setting up of the first secure training centre at Medway? Some of your Lordships may remember Lord Williams of Mostyn coming to this House shamefacedly following the riot there, when in the space of just two hours eight or nine 12 to 14 year-olds caused hundreds of thousands of pounds-worth of damage and injured three of the staff. I think—perhaps the noble Lord will correct me if I am wrong—that the main issue was that the quality of staff was not appropriate to the needs of those young people. It had not been thought through beforehand what kind of staffing was necessary to meet their needs. So my noble friend Lord Ramsbotham has a very good point: we as parliamentarians should think extremely carefully about these vulnerable young people, who can be so damaged.

I am reminded of another example which, again, occurred under a previous Administration—namely, the setting up of Yarl’s Wood immigration removal centre. It was established as a secure centre for children and their parents on the plan of a prison; indeed, it was identical to a prison. One could go into the reception area of Yarl’s Wood immigration removal centre and have very much the same experience as going into a prison. A mother with an eight year-old child would have to walk through a barred gate. One has to ask oneself what the child thought of the experience of walking into a prison through a barred gate. Who gave any thought to what it would be like for children to be placed in that setting, run by a prison governor, if I remember correctly, and manned by prison officers? This caused outrage for 10 years.

The former Children’s Commissioner, Professor Aynsley-Green, repeatedly produced reports on this setting and very gradually the environment was ameliorated considerably over time. But how much better it would have been if consideration had been given well beforehand to what the needs of children and families kept in a secure setting would be—infants, eight year-olds, 16 year-olds with their mothers—and whether a prison would be suitable accommodation for them. This issue needs to be given the closest attention and most careful thought because we are talking about some of the most vulnerable young people in our society.

In conclusion, the noble Baroness, Lady Finlay, talked about the health and mental health needs of these young people. Many of them will have experienced the care system. In many cases, before they went into the care system, they experienced repeated trauma throughout their lives, had dysfunctional families and were betrayed by the people they most trusted. There was no help available from within their families and they were very damaged by the time they entered care. In those circumstances it is vital that the proposed setting has a very good team of mental health professionals to support young people and the staff who work with such vulnerable young people. I share others’ misgivings. I wish that I could be more generous towards the Government because I applaud them for what they have achieved elsewhere for these young people. I hope that the House will support my noble friend’s amendment to give us more thinking space.

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I think noble Lords might like to reflect on those words and some of the key facts about the Ian Mikardo High School. There are 10 teachers and 12 teaching assistants for the 40 boys, plus a parent engagement officer and two psychotherapists, one for the boys and one for the staff. Has the Secretary of State considered the strain on staff who would have to look after 320 difficult, challenged and vulnerable children in one confined space? Each place at the Ian Mikardo school costs about £38,000 a year; that is, of course, minus custody costs. I believe that the principal reason for its success is that the head teacher, armed with her experience of looking after similar children in the criminal justice system, planned, staffed and costed her reforms in great detail—including the banning of restraint, which she has pursued consistently—with the help of carefully selected and properly supported staff. I regret that I see no evidence that anything like that—which I think is absolutely essential—applies to the plans for the proposed secure college.

[Lord Carlile of Berriew]

Last Thursday, my noble friend Lord Faulks and his ministerial colleague from another place, Mr Selous, gave noble Lords the opportunity to hear from both Ministers and to look, not for the first time, at the physical plans for the secure college. Some changes had been made to the plans since the last time we had seen them. Those included carefully separated provision for girls and vulnerable boys in the younger age group.

When the plans were presented it became clear that what was being provided was the best one could manage on that site, in the view of the Government. What they have provided, in the plans that we saw depicted, is a way of transferring the girls and vulnerable young boys from their accommodation to health and education provision whereby part of the site is locked down from other students while the youngsters and the girls are being moved around. This is not a way in which any sane person or organisation would design a school or college. One only has to ask any teacher who has ever had to deal with the separation of boys and girls of the age that we are talking about—even, for example, when moving them to and from sports facilities—to know the kind of potential trouble that exists even in the best ordered institution. And we are not talking about an institution in which the students will in all cases be volunteering their co-operation for good order.

When we examine the situation further, we find the following. Unless my noble friend can point to something that we have not yet seen, no independent organisation assessing the merits of education provision has reported that this is a good design for such a college. Nobody has reported independently or empirically that this is a good way of dealing with girls and young vulnerable boys in such an institution. I repeat, as I did at the meeting, that I am grateful to the Government for finding another 2.5 acres on the site for some additional—though, I apprehend, still inadequate—sports provision. But the truth is that the Government are going to spend £80 million on this site for one reason alone—the fact that they already own it.

I wonder whether the local planning authority, which I believe is Blaby Council, will be as calm as the Government about the quality of the provision, its security and how satisfactory it is for this very young age group and for girls. I very much hope that it will not. It would not surprise me if the local planning authority raised some difficulties. As I said, the college is there simply because the Government own the site, and in order to fill that site they wish to shoehorn in girls and young vulnerable males as well. Those people should not be there at all, as the noble Lords, Lord Ramsbotham and Lord Beecham, and others have made absolutely clear.

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[Lord Faulks]

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments, which are important, although they focus on two narrow but, I understand, critical aspects of these proposed secure colleges.

Dealing first with girls and those aged under 15, Amendments 109 and 117A seek to exclude girls and under-15s from secure colleges, or to prevent girls being accommodated on the same site as boys. I entirely recognise that there is understandable caution about the risks involved in allowing girls and under-15s to be placed in a new type of secure establishment, where the majority of young people will be boys between the ages of 15 and 17. I also recognise the importance of secure colleges being able to address the particular educational, health and emotional needs of these undoubtedly very vulnerable young people.

Let me assure noble Lords that we have gone to considerable lengths in our designs for the secure college to ensure that the younger and more vulnerable groups could be accommodated in separate small units. As my noble friend Lord Carlile told the House, following a meeting in July we made changes to the plans to enlarge the site by two acres, and to ensure that the younger and more vulnerable people have their own sports and recreational facilities. This is not merely tunnels—as he describes it—but separate facilities and separate access routes to the main education and healthcare building. In this way, it will be possible to deliver a distinct regime that caters to these more vulnerable boys and girls. In our consultation on our plans, we have also proposed a rule requiring girls to be accommodated separately from boys. I referred to that consultation earlier this afternoon.

However, I should make clear to the House that no final decisions have been taken on who will be accommodated in the secure college pathfinder. This will be determined in light of the analysis of the make-up of the youth custodial population ahead of the pathfinder opening in 2017. I also gave a commitment in Committee that girls and under-15s will not be placed in the pathfinder from its opening, and that any decision to introduce them would be carefully phased. While I entirely recognise the concerns that lie behind these amendments, I believe that the risks can be sensitively and safely managed. This already happens in secure training centres and secure children’s homes, where boys and girls of different ages are accommodated on the same site.

There have been references to the numbers in the youth custodial estate. I can assist the House by saying that at the moment there are 16 girls in secure children’s homes, and 20 girls in secure training centres. That is a total of 36. There are 25 under-15s in secure children’s homes, and 13 in secure training centres, giving a total of 38. In one of the secure children’s homes there are 24 boys and one girl, so we are not talking about a large number.

We are anxious not to preclude, as a matter of strict law, the possibility of admitting to the secure college girls or those aged under 15. However, the House will know that the Youth Justice Board takes the decisions on where young people who are sentenced or remanded into custody are to be placed. These decisions are taken by specially trained staff and informed by detailed advice from the youth offending teams who have been working with the young people. The Youth Justice Board’s placement decisions are based on the individual needs of a young person. They take into account the whole range of factors that you would expect, such as age, gender, vulnerability, location, offence and any previous history. There is a very nuanced assessment before children are even considered appropriate for the secure college. However, the amendment would absolutely prevent it.

[Lord Carlile of Berriew]

I am grateful to my noble friend for giving way. I accept everything he has said about it not being for the Government to determine who goes to which institution. However, surely he can tell us whether he expects or anticipates any girls being sent to this institution.

[Lord Faulks]

As I said a little earlier, we do not expect this to happen, certainly in the short term. However, we do not want to write into the legislation that it should never happen. This is because, as noble Lords will appreciate, not all 14-year old boys are the same, physically, mentally or in their needs. This is also so with girls. I do not anticipate that this is likely to happen in the short term, but this amendment would completely prevent it happening. Yet there are instances of girls and boys actually deriving benefit from each other’s company.

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[Lord Carlile of Berriew]

I apologise for intervening once more. I promise not to do so again, at least in this speech. Does this mean that, although my noble friend is not able to anticipate whether any girls will be placed in this pathfinder college, nevertheless the Government have decided to build a building to accommodate girls, which may lie empty for the next 25 years?

[Lord Faulks]

No, the answer is that by their secure college the Government are trying to provide a college which is sufficiently flexible to allow them to cope with whatever the demands are. Of course, it is impossible to predict precisely the age or the gender of those who will find themselves sent to a secure college, or to whatever the appropriate custodial institution may be. The answer is to set up a college which has the provision for a separate accommodation if that is appropriate.

It appears that we are somewhat damned if we do and damned if we do not. We were criticised for not having a separate accommodation for girls and young men, and we are now being criticised for having it and not using it. I hope that there will be some acknowledgment that we have made considerable efforts to try to find an appropriate way of housing them, should it be appropriate for them to be sent there.

Amendment 110 seeks to place a duty on the Secretary of State to make arrangements for adequate specialist provision to meet health and well-being needs in a secure college, and to make sufficient places available in a secure children’s home. Amendment 117B would impose a number of welfare requirements on secure colleges. These amendments go to the heart of which matters should be for primary legislation, which should be in secondary legislation and which are to be delivered through contractual arrangements. Some of the requirements in Amendment 117B relate to areas of fundamental importance—such as safeguarding, education, health and well-being, staff training and visits—and as such are matters that, rightly, we will address in the secure college rules.

Similarly, Amendment 110 would require the Secretary of State to make arrangements to ensure that secure colleges have adequate specialist provision in place to address young people’s health and well-being, and to ensure that sufficient places are available in a secure children’s home. The responsibility for commissioning health and well-being services, including specialist provision, for young people in a secure college will rest with NHS England. As noble Lords will be aware, this is in line with the arrangements currently in place for the existing secure estate.

Similarly, it is local authorities, not the Secretary of State, which are responsible for providing sufficient places in secure children’s homes. The Youth Justice Board recently agreed contracts with nine secure children’s homes. As I have previously indicated, we remain committed to ensuring that specialist separate accommodation will be available for the youngest and most vulnerable offenders. NHS England will assess the healthcare needs of all those detained in secure colleges, and commission services appropriate to meet their assessed needs. In doing so, NHS England applies the intercollegiate healthcare standards for children and young people in secure settings which were developed by the royal medical colleges at the invitation of the Youth Justice Board.

As we indicated in the recently published consultation on our plans for the rules, the role secure colleges play in healthcare is to provide the right environment where healthcare professionals can carry out their responsibilities for the care and well-being of young people. We therefore propose that the rules should include a requirement to ensure that a young person has safe and timely access to health services in a secure college. I hope that that goes some way towards reassuring the noble Baroness, Lady Finlay, who is understandably concerned about the quite complex care needs that these young people will have.

As I said in answer to an earlier debate, the design of the healthcare facilities has been developed in collaboration with NHS England, which was consulted at that stage. Indeed, it was NHS England which advised us to amend our plans in order to bring the healthcare provision within the main educational block. NHS England assisted in the consultation and the way that the college is to be configured. Not only will this reduce the disruption to education when young people need to attend health appointments, but it will also help to normalise access to healthcare for a group of young people who, as I am sure that the noble Baroness and others will be aware, have not always had regular contact with a GP or with the specialist services they require. In some senses, it is hoped that they will be better off here than they might be in the community in terms of access to healthcare.