Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 21st July 2014 Lords Chamber

[The Lord Bishop of Chester]

My Lords, I have considerable sympathy for the amendment, although I wonder how it will interact with the remainder of the law on assault if this is criminalised in a specific way. I declare an interest in that I used to be a publican. When I was employed in a university, one of the members of staff had to go down to the magistrates’ court and swear that they were a fit person to keep order. That is the only time when I have been into a court of law in my life, and the magistrates were not quite sure that this young clergyman would be able to do so. My main task was to prevent the students drinking the profits rather than sorting out any brawls.

I would like the Minister to comment on the two examples that we have been given of the use of caution where assault takes place. If a publican’s wife was assaulted and her nose was broken and this simply resulted in a caution, that is widely held to be inadequate as a legal response. I hope that when he comes to reply the Minister will deal with that point, especially if he is not prepared to accept the amendment.

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

My Lords, it has been a short but informative debate, informed by experience from quarters where we do not necessarily expect it to be shown, but none the less welcome for that.

The amendment would make it an offence to assault a person who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way, with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The House will of course join me in condemning assaults on anyone who comes into contact with the public as part of their work. No one should be expected to face violence because they are simply doing their job. In particular, it is essential that the criminal justice system deals adequately with violence against people who are engaged in the licensed sale of alcohol—for instance, in pubs, off-licences, supermarkets or corner shops. However, the Government do not at the moment agree that creating a new offence is the right way to combat this unacceptable behaviour. The Government are committed to creating new offences only where it is considered necessary, there are no other reasonable options available, and there is evidence to support the need for a new offence. I will endeavour to explain why we do not believe that is the case in relation to assaults on workers enforcing or complying with the Licensing Act 2003.

There are already a number of offences that criminalise disorderly and violent behaviour, and which apply in cases of violence towards such workers. They cover the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent offences. In every case referred to the Crown Prosecution Service where there is sufficient evidence to justify a prosecution, prosecutors must then go on to consider whether a prosecution is required in the public interest. The section of the Code for Crown Prosecutors giving guidance on the public interest test states:

“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.

If the evidence is there and the code is satisfied, the CPS will prosecute.

Moreover, sentencing guidelines, to which there has been reference, specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that includes those who work in shops and the wider retail business and such people who might well be enforcing or complying with the Licensing Act 2003.

The noble Lord, Lord Foulkes, referred to the observations of my honourable friend Robert Buckland, now the Solicitor-General. It is not normal for a Minister to give advice from the Dispatch Box but the noble Lord, as an experienced parliamentarian, will know that the Solicitor-General and the Attorney-General are in fact the law officers responsible in the case of unduly lenient sentences and can themselves initiate an appeal to the Court of Appeal should sentences be regarded as too long. In fact anyone can refer those sentences for consideration by the law officers, so that is a matter that he may well wish to convey to USDAW if it is not already aware of that.

Currently, the only offences of assault on members of specific groups are the offences of assault on a police constable in the execution of his or her duty and assault on an immigration officer. Creating a new offence of assault on workers selling alcohol would single out this type of assault as the only one meriting a specific offence alongside assaults on these public servants. I do not believe that this can be justified.

Whoever the victim, the degree of seriousness of an assault should depend on the particular facts of the case. Why should it be worse or more traumatic for the victim for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door as a result of an intrusion into the home? Of course, where the evidence indicates a more serious offence than merely common assault, whoever the victim, more serious charges are available to the prosecution, such as assault occasioning actual bodily harm, which carries a maximum penalty on indictment of five years’ imprisonment or an unlimited fine, or both, or grievous bodily harm under the 1861 Act.

There was reference to the position of police officers, who of course occupy a very important role. The offence of an assault on a constable or an immigration officer is a separate matter, although interestingly the proposed “triable either way” offence of assault on a worker selling alcohol would carry a higher sentence in the amendment than the offence of assault on a constable. I think it is fair to say that assault on a constable in the execution of their duty tends to be used for minor offences, whereas if there is a serious assault on a police officer it will be charged under the Offences Against the Person Act.

Noble Lords referred to cases that are not proceeded with, rather surprisingly on the facts of one particular case involving Barry and Teena, as the noble Lord, Lord Foulkes, said. USDAW has highlighted many cases that never reach the courts because the police and prosecution decide not to prosecute. As the Committee will appreciate, the investigation and prosecution of cases is a matter for the police and the Crown Prosecution Service, and regardless of the existence of a particular offence it is ultimately a matter for them whether they decide to investigate and prosecute.

Reference was made to the creation in Scotland of a specific offence of assaulting an emergency worker and it was suggested that this had increased the prosecution rate and resulted in a decrease of such offences. That was raised by the noble Lord, Lord Kennedy. Of course I entirely agree with the comment that we are better together. Be that as it may, what one can say about that, and there has been some research into it, is that it is difficult to draw any conclusions. It may well be that these offences are now being prosecuted under the legislation covering assaulting emergency workers whereas previously they would have been prosecuted under the common law of assault. The figures prior to the creation of the offence in the 2005 Act do not distinguish between those assaults that were committed against emergency workers and assaults against other people. It may be right, but we suggest that we cannot draw anything from that.

While I would be very happy to meet the noble Lords, Lord Foulkes and Lord Kennedy, to discuss matters further, at the moment we are unpersuaded of the need for these further offences despite the variation from the amendment put forward on the Anti-social Behaviour, Crime and Policing Bill. In light of the points that I have endeavoured to draw to the attention of the House, I hope that the noble Lord will feel able to withdraw his amendment.

--- Later in debate ---

[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.

[Lord Sharkey]

My Lords, I am very grateful to all those who have spoken in favour of the amendment. They have, in my view, spoken persuasively and eloquently. I cannot help feeling that in many ways the Minister is simply missing the point. He talks in terms of practicality and cost; that is essentially the argument that he is putting forward. As I pointed out a few moments ago, there are elements to this other than practicality and cost. There is the notion of moral duty; there is the notion of taking into account the feelings of the friends and relatives of those convicted but now dead; and there is the notion of the devaluation of the disregard for those convicted but still alive if the purpose of this is purely practical and contains no element of public recognition for the wrongs done to these people.

I am sorry that the Minister and the ministry have chosen to take this path. It seems to be legalistic, mean-spirited and ungenerous. I am sufficiently encouraged by the words that I have heard around the Chamber this evening to say to the Minister that, although I will now withdraw the amendment, I will return to it on Report and perhaps use the opportunity to test the opinion of the House at that point.

I finish by saying that of course I would welcome a meeting with the Minister. In fact, I wrote to the ministry on 3 July proposing that. I got a letter back last Thursday saying, “We have passed your letter on to the Home Office because of course the Protection of Freedoms Act belongs to the Home Office”. There was no mention of a meeting or any kind of consequent follow-up; it was just a case of “It’s not our business”. I knew that the Protection of Freedoms Act belonged to the Home Office but I also knew that the Minister was going to be answering this debate, which is why I wrote to him. I expected him, or his department, to answer on behalf of the Government and not simply to say, “Well, over to them and let’s not talk about a meeting”. I am now very glad to hear that he is talking about a meeting. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Faulks]

My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.

The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.

The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.

With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.

Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.

The difficulty with this amendment is that it would effectively be unworkable because it creates a two-tier system whereby non-EU providers of pornographic content would be subject to stricter regulation than UK and EU providers. It creates a different definition of pornographic material to be regulated and will therefore create uncertainty, inconsistency and lack of clarity rather than more security. Secondly, extending the scope of the type of content from TV-like content to include film clips and static images that originate from outside the EU would create further uncertainty and inconsistency across the full scope of the content in question.

The noble Baroness, Lady Howe, asked about the R18 legislation. I understand that the legislation has been drafted and is currently at the notification stage in Brussels. We hope to implement it in the autumn.

We of course share the concern that has been expressed all around the House about access to pornographic material, particularly by children, and are concerned to do all that we reasonably can. However, we are not convinced that these amendments are the answer and respectfully ask the noble Baroness not to press them.

[Baroness Thornton]

I thank the Minister for that answer and the noble Baroness, Lady Howe, for her support on this. That is disappointing. The Government are complacent about this issue and are depending too much on filters and on parental controls. We know that it is not working and that too many of our children are accessing hardcore porn too easily. The Minister needs to acknowledge that. The evidence is absolutely clear: the damage is already being done to our children and the Government are not doing enough to stop it. I fear that we will return to this subject at a later stage of the Bill. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Linklater of Butterstone (LD)]

My Lords, I shall echo most of what has already been said. I think that around the Chamber we are pretty well agreed that what is being planned in general for the most vulnerable children in our community is entirely inappropriate and inadequate.

First, I shall speak to the new clause proposed in Amendment 43B concerning sentencing guidelines and provisions regarding secure colleges. The clause would amend the sentencing guidelines laid down in the Coroners and Justice Act 2009 in relation to those aged under 18. It states that no court should impose a custodial sentence upon an offender who is under 18 simply because a place happens to be available at a secure college when otherwise a community sentence would have been imposed, or impose a longer sentence precisely because a place at a secure college is available. It reflects a concern that sentencers might be attracted by the idea of a secure college at the expense of a community sentence because of the possibility of the education that may be on offer. That of course is very superficially attractive, not least because at this point in time we have no idea what that educational provision will consist of.

It is rather like when the DTO was introduced in 2000. It was attractive to magistrates because it appeared to combine punishment with rehabilitation and protection to society, but it simply resulted in a surge of children in custody. With similar perceptions, there is a real risk that secure colleges could drive up the numbers in custody. It is important to remember that custody really must be the disposal of last resort for young people in particular. They have the worst outcomes of all sentencing options for society, as well as for the offender, as 70% of children and 58% of 18 to 21 year-olds will reoffend within a year of their release.

We know that non-custodial sentences offer far better outcomes all round, particularly in terms of reoffending. However, the form of custody envisaged by the secure college, by virtue of its scale alone, offers little hope of achieving much in terms of improving the life chances of the children and young people it is planned that it will hold. Some 320 children under one roof, or at least in one campus, is just an impossible size for anything to be done—as everybody has been saying—on a personal basis.

There is an additional worry, highlighted originally by Sir Alan Beith MP at Second Reading in the Commons, that the education said to be on offer is likely to be piecemeal at best when the average length of custody is 79 days and hardly long enough to complete any course, even if a young offender happened to arrive at the college at the beginning of one. They take pot luck to join in when they arrive. So the reality of the college experience from an educational point of view alone is—

[Lord Faulks]

I am very sorry to interrupt my noble friend but I wonder whether she is not in fact talking to a different amendment.

[Baroness Linklater of Butterstone]

Am I?

[Lord Faulks]

I think you are.

[Baroness Linklater of Butterstone]

I am talking to Amendment 43B.

[Lord Faulks]

It is not in this group.

[Baroness Linklater of Butterstone]

Oh, it is in a different group. I am so sorry. Shall I continue or shall I leave it?

[Lord Faulks]

I think, with respect, you could come back to it if we get to that point.

[Lord Storey (LD)]

My Lords, I apologise for not having spoken at Second Reading. I was thinking that had this proposal come when we were debating the Children and Families Bill, there would have been uproar all around the House.

As has been said, we have to remember that 70% of young offenders have special educational needs and 20% are currently on what are called educational statements. The word “college” of course means education but the notion that you provide that educational support in what will in fact be Europe’s largest children’s prison is quite concerning, as is the notion that you put 12 year-olds with older youths and take them away from their support systems, their family and friends. We have not as yet decided what the education package is going to be. If it is going to be a genuine education package then there have to be educational psychologists, speech and language specialists and people dealing in mental health issues to make it really effective.

I have two real concerns. First, one of the amendments talks about younger children. There are moments in your professional life where certain events happen and they are almost life-changing in their impact. I remember clearly an 11 year-old boy who came to my school. They discovered that his mother’s partner had been in Winchester prison for child abuse. The boy was immediately taken away from his family and put in a secure children’s home. He was 11 and all the other young people in the home were 15 and 16. With the help of the local MP we got him out of the children’s home within, I think, three to four weeks. That boy had changed beyond belief. He had become a drug pusher; he did not want to support his family any more; he became abusive; he became a bully—all the sorts of things you do not want. That is my concern about putting young children into such institutions—and they are children. At the age of 12, 13 or 14, we are talking about children. The notion of putting children into this kind of institution is, to my mind, terrifying.

My second point is on the need for education support, which I have just mentioned. I recently went to visit a youth offending team on Merseyside comprising a very professional staff who are doing a tremendous job. The team’s concern is that currently it cannot even get information from schools to find out whether the young people concerned have statements or their educational assessments. We will have to pin down what the support provided in a secure college will be and what help is to be given.

I am very concerned about this proposal. If it is going to proceed, the important issues around age, the admittance of girls and of education provision have to be clearly spelt out. If this is about saving money, let us be honest and say so. If this is about a secure unit, let us be clear about that. But if the word “college” is going to be used and it is about supporting young people in their education and preventing reoffending, the issues that have been expressed in this debate have to be clearly and skilfully dealt with.

--- Later in debate ---

[Lord Faulks]

My Lords, these amendments have allowed us to have a detailed and valuable debate and I welcome the opportunity to clarify the Government’s position on a number of aspects of how secure colleges will operate. However, so many questions have been posed during the course of the debate that I cannot answer all of them in my response. I will study Hansard carefully and write to all noble Lords and I will ensure that a copy of that letter is placed in the Library. If I do not deal with all the points that have been made, I hope that noble Lords will forgive me, but I will try to address at least in general terms the anxieties that have been expressed across the Committee.

On a positive note, there has been acknowledgement that the importance of education—which the Government say is reflected in the establishment of these secure colleges—is paramount, particularly with this cohort who sadly have rarely had access to any continuity in terms of their education and who would clearly, in the right circumstances, benefit a great deal from that. The Government made clear in their response to the Transforming Youth Custody consultation—this is my answer to the amendments in relation to secure children’s homes—that we accept that there will still be some detained young people who will require separate specialist accommodation on the grounds of their acute needs or vulnerability. We are committed to continuing to provide separate specialist accommodation for this small group of young offenders.

Your Lordships will have noticed that secure children’s homes are absent from the list of the types of youth detention accommodation that the Secretary of State may provide, as set out in the revised Section 43 of the Prison Act 1952 included in Clause 29. That is because local authorities have the power to provide secure children’s homes and the Secretary of State has never had such a power. Similarly, it is for local authorities to provide sufficient places as are required in secure children’s homes and we think that it is right that they retain responsibility for this. As noble Lords are aware, these will contain not only those who are there because they have been sentenced but those who are there due to the various duties on local authorities to safeguard children.

The noble Lord, Lord Beecham, referred to the desirability of more places being available in secure children’s homes. It is correct that we have reduced the number of places in secure children’s homes to 138. This reflects a positive step: the fact that there is a fall in demand for youth custody and the demand for secure children’s home placements in particular. We have in fact decommissioned a far greater number of places in youth offender institutions in recent years. A number of whole establishments have closed. Although finance is a factor that we cannot ignore in this process, it is not the only factor. If we were to place all young people in custody in secure children’s homes, it would cost in excess of £100 million per annum more than we currently spend.

I turn to Amendments 42F, 42G and 43C. Concern was expressed about the access of girls and those aged under 15 to secure colleges. I am sorry for interrupting the speech of the noble Baroness, Lady Linklater, but she came back on this point and made some helpful observations. I do recognise the concerns about the safeguarding of both under-15s and girls in an establishment where the majority of young people will be boys aged 15 to 17. I also accept that the educational, health and emotional needs of under-15s and girls may often be different from those of the broader population of 15 to 17 year-old boys who are likely to make up the majority of those in secure colleges.

However, the Government believe that these risks can be properly managed, as they are in secure training centres and secure children’s homes where boys and girls of different ages are accommodated. I should like to reassure noble Lords that the design of secure colleges will be such that younger and more vulnerable children will be accommodated in units separate from the mainstream group of older detainees and that there will be facilities to ensure that they can access education and other services separately. That point was made during the course of the all-Peers meeting to which a number of noble Lords referred when putative plans of the secure college were shown.

My noble friend Lord Carlile was critical, and has repeated his criticism, of the lack of outside space. He is determined that somewhere there is a ministerial vision of some equivalent to a public school. This Minister pleads not guilty to that. The advantage of playing fields is considerable. At the establishment to which he referred, that was perhaps the only main advantage of the school, although that is not of course the case now.

There are inevitably some difficulties in providing appropriate space but I accept the general point that physical exercise in appropriate circumstances can be of profound therapeutic assistance. Although at the moment we have a limited amount of space, as the noble Lord rightly apprehended, and not just today, I have been making inquiries into the possibility of acquiring some extra physical space to try to accommodate the desirability of providing additional facilities. I hope to be able to come back to noble Lords and provide some more information about that in due course.

The aspiration of noble Lords in the proposed new clause is for single-sex secure colleges, but the Government believe it is better for legislation to provide for the option of secure colleges accommodating both boys and girls. I make it clear to the Committee that no final decisions have been made on whether girls and under-15s will be accommodated in the pathfinder secure college. I also assure noble Lords that any introduction of these two groups in the pathfinder secure college—which is what this is—would be carefully phased: we would not place them there from its opening.

A number of the matters in the new clause proposed by noble Lords in Amendment 43C will be covered in the secure college rules, which I believe is the proper place to consider them rather than in the Bill. As I have already explained to the Committee, we intend to bring forward a consultation on our approach to the secure college rules before Report, which will provide an opportunity for the Government to set out and seek views on their plans for the basic requirement of secure colleges.

The new clause proposed by the noble Lord, Lord Ramsbotham, and other noble Lords requires the Secretary of State to conduct a pilot of no more than 50 people before commencing the secure college provisions. I recognise the concern that any new form of youth custody must be able to ensure the welfare and safety of the young people placed there. I reassure noble Lords that the opening of the pathfinder secure college will be extremely carefully managed. We anticipate that it will take some months before the pathfinder begins operating at full capacity, and this will only happen once the operator has demonstrated that it is delivering a high-quality service in a safe environment. With these appropriate precautions in place, I do not agree that a limited pilot scheme is required.

I sympathise with noble Lords’ desire for greater information on the precise form that education will take in a secure college. However, I do not think it is right for detailed information on the educational requirements to be set out in legislation or for the Secretary of State to dictate what the content of the educational programme must be. We want secure college providers to have the freedom to deliver innovative education that is imaginative and appropriately tailored to the young people in the establishment. It is important that secure college providers have the flexibility to tailor education to the different needs of the young people they accommodate. The form that this education takes, the number of hours that are spent in the classroom or the workshop, and how it is delivered, cannot be helpfully pinned down in secondary legislation.

The crucial point is that secure colleges must deliver a full and quality curriculum that motivates and challenges all young people. The effectiveness of the education in a secure college, including for those with special educational needs—referred to by many noble Lords—will be judged by a robust monitoring framework involving both Ofsted and Her Majesty’s Inspectorate of Prisons.

As to special educational needs provision, it is intended that the principal of a secure college will have overall operational responsibility for the services provided by the establishment, including the workforce delivering those services, and will work with the local authority responsible to ensure that young people with special educational needs receive appropriate support while detained in a secure college.

Noble Lords will be aware that the statutory responsibilities of both local authorities and custodial establishments in respect of young people with education, health and care plans has recently been strengthened by the Children and Families Bill. In addition, we will require special educational needs co-ordinators in secure colleges to hold qualified teacher status, in line with requirements in the mainstream.

I fully understand my noble friend Lord Hodgson’s concern to ensure that the education and training that young people receive while detained in custody is structured to their individual needs and takes account of their prior learning, as well as their aspirations on release. Secure colleges will improve on the existing processes, and ensure that all young people receive an individual learning plan based on a thorough assessment of their needs and prior learning experience. However, to create in the Bill a duty on the Secretary of State would, in our view, be disproportionate.

A number of observations were made to the effect that the period of time that an individual might spend in a secure college was not necessarily conducive to education. Sadly, we often deal with a cohort of young people for whom continuity has been notably absent, often even from one day to another in educational establishments. Ideally, one might think that educational provision ought to match precisely its mirror image in the community. However, a sufficient bank of time in a secure college would be intended, with an individually tailored plan, to ensure that some real benefit was derived from that exposure to education, in circumstances where the individuals have probably had very little continuity at all.

My noble friend Lord Hodgson referred to the value of online learning tools. We are exploring the extent to which we might be able make use of such tools, both in existing custodial establishments and in secure colleges. As those who saw the plans will have seen, there will be plenty of access to computers in the course of the educational provision. However, there are, as noble Lords will understand, precautions that need to be taken to restrict access to the internet—not least to protect the victims of crime from further harm.

As for the rules referred to in Amendment 43, I am grateful for this amendment. It raises a principle which I am sure all noble Lords will agree with: that the Government’s proposals for secure colleges should be subject to proper consideration and scrutiny by Parliament. I agree with the noble Lord, Lord Ramsbotham. I look forward to detailed scrutiny of these provisions as the Bill continues its passage through the House. However, we believe it is appropriate that the Secretary of State should have the same powers in relation to secure colleges as he has with other forms of youth custodial accommodation. We consider that the negative resolution procedure represents a suitable degree of oversight. In addition, as I set out at Second Reading on 30 June, we will launch before Report a public consultation on our approach to secure college rules. We will set out and seek views on the principles underlying the rules and, where appropriate, some indicative draft provisions.

As for Amendment 43D and the report to Parliament before commencement, I do not think it is right to set out extensive detail on how secure colleges will operate before these provisions can commence. In the Government’s response to the Transforming Youth Custody consultation, we explained that we want to allow providers to develop creative and innovative ways to deliver this new form of youth custody. Providing a report to Parliament before these provisions can be commenced—and therefore before an operator can be secured—would significantly undermine this approach.

In my view it is for primary legislation to set out the framework for secure colleges, for this to be further developed by the secure college rules—the process that I have just outlined—and for detailed operational requirements to be determined by the Secretary of State via the contracts that he enters into to provide secure colleges. Once we have identified an operator to run a secure college, the contract will be made publicly available, including the agreed operator service specification, with appropriate redactions where information is commercially sensitive. I hope that this allays to some extent the concerns expressed by the noble Lord, Lord Ramsbotham.

As to Amendment 48 and staffing, I am sure that noble Lords would agree with me that we want secure colleges to employ high-calibre individuals who are able to help deliver this new and bold form of custodial provision. This applies as much to custody officers who will be responsible for undertaking some of the most important functions in secure colleges as it does to teachers, health professionals and others.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, my noble friend Lady Linklater spoke to Amendment 43B as if it were part of this group. There is nothing more that we wish to say on that amendment, which is in a further group, and because of the time I wonder if the Minister could indicate if he has anything special to say about it, subject to anything that the Labour Front Bench wishes to say.

[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.

--- Later in debate ---

I hope that between now and Report the Government will look very seriously at the issue, which has been raised not only in this House but by all interested organisations concerned with the welfare of the child. As a matter of fact, it is in the interests of the staff in these institutions to have clear guidelines about what is acceptable and what is not. It should be made clear to them at the outset that any temptation to use excessive force is beyond their powers and will not be sanctioned by whoever operates the institutions. I return to the point that it is important that there should be oversight by this House and the other place of precisely what will be done in our name to children detained in such an institution.

[Lord Faulks]

My Lords, I am grateful for the opportunity to debate these amendments from various noble Lords. I recognise that the use of force in relation to young people in custody is a sensitive and important issue. I will explain the effect of these amendments, and also our intentions in respect of the use of force.

The effect of the amendment proposed by the noble Lord, Lord Ramsbotham, would be to remove the power of custody officers in secure colleges to use, if authorised to do so by the rules, reasonable force where necessary in carrying out their functions. I am sure that noble Lords would agree with me that there are some circumstances, such as to prevent an escape from custody or to prevent harm to themselves, another young person or staff member, in which the use of force could be necessary and where it is desirable to have rules setting out when, how and what force a custody officer is authorised to use. The effect of this amendment would be to prevent that, and we believe that that is too limiting.

Another amendment differs in that it sets out a series of circumstances in which rules may authorise the use of force. The effect of this amendment would be to restrict the circumstances in which custody officers can use force, if authorised by rules to do so, to the prevention of harm to the child or others.

Amendments 42N, 46B and 46C, tabled by the noble Lords, Lord Marks, Lord Carlile and Lord Dholakia, and the noble Baroness, Lady Linklater, would prevent the use of force to ensure good order and discipline and have the effect of setting out in detail the conditions which must be satisfied in relation to any use of force by secure college custody officers.

In relation to use of force more widely, I should like to make clear, and I can reassure your Lordships, that we agree with the conditions set out in these amendments that in all cases force should be used only as a last resort; that the minimum amount of force should be used for the minimum time possible; that only approved restraint techniques may be used; and that they should be used only by officers who have received training in those techniques.

Considerable improvements have been made to restraint practice in recent years, including the introduction of a new system of restraint known as MMPR. It has been independently assessed by a panel of medical and child welfare experts. The Independent Restraint Advisory Panel was formed specifically to monitor the implementation of MMPR. It is currently being rolled out to under-18 young offender institutions and secure training centres. It is our intention that this system of restraint would also be used in secure colleges.

The fundamental principle of MMPR is to minimise and, wherever possible, avoid the use of physical restraint. Staff working with young people in STCs and under-18 YOIs receive a comprehensive programme of training that puts considerable emphasis on using appropriate de-escalation and deceleration techniques—non-physical interventions—to ensure that restraint is only ever used as a last resort, when no other intervention is possible or appropriate, and that if use of force is required it is the minimum possible for the minimum amount of time.

I recognise that the issue of use of force to ensure good order and discipline is one of the primary concerns behind these amendments. A custody officer’s duties include ensuring good order and discipline, and the Bill provides that reasonable force may be used for this purpose, but only if specific provision is made in secure college rules. Rules are the correct place to be setting out the boundaries on use of force. The drafting in the Bill ensures absolute clarity on this point; a custody officer must be authorised by the rules to use force. I recognise that the term “good order and discipline” could be seen to be too broad in this context, and perhaps the term “discipline” is not helpful, as it could imply some element of punishment. We are clear that any use of force for the purposes of disciplining and punishing is prohibited. However, it is worth noting that use of reasonable force to ensure good order and discipline is provided for elsewhere in legislation. For example, although a different setting to custody and covered by specific guidance, use of reasonable force for maintaining good order and discipline is permitted in schools.

As I set out in the document that I sent to all Peers before Second Reading, the Government’s position is that force may be used only to ensure good order and discipline where there are clear risks to maintaining a safe and stable environment for young people, and that the use of force is a necessary and proportionate response in order to protect the safety and welfare of the individual or of others.

We consider that there may be limited situations in which all attempts at resolving and de-escalating an incident have failed, and where a young person’s behaviour is such that it is impacting on their own safety and welfare or that of others. In those limited situations, and then only as a last resort, we believe that some force—the minimum necessary, for the shortest time possible and subject to strict conditions and safeguards designed to ensure respect for the young person’s dignity and physical integrity—may be necessary.

Furthermore, force for reasons of punishment would not be permitted, and use of restraint techniques intended to cause pain would not be permitted. Use of force would be permitted only when staff are satisfied that they have assembled the resources to ensure the safest use of force and a full risk assessment has been conducted. This includes the attendance of healthcare staff.

As I explained to the House at Second Reading, ahead of Report we will launch a public consultation on our approach to secure college rules. This consultation will include our proposals relating to the use of force to ensure good order and discipline, as well as the use of force more widely. I will welcome responses from noble Lords and others on this important issue.

Regarding the noble Lord’s Amendment 42M, as a matter of principle I do not think it is necessary to specify in the Bill who the Secretary of State has to consult with. We will of course work closely with the Youth Justice Board as we plan for the introduction of the pathfinder secure college. At the end of April 2014, following the conclusion of its work, the Independent Restraint Advisory Panel was dissolved.

I recognise that the use of force in youth custody is a very sensitive issue. We are conscious of our international obligations and of the implications of the Court of Appeal’s decision in C. I hope in this reply I have been able to provide some assurance of the Government’s intentions regarding the use of force in secure colleges. I should also add that we are conscious of the Delegated Powers Committee’s recommendation, which we will consider, and I look forward to continuing this discussion through our public consultation. In the light of that reassurance I hope the noble Lord will withdraw the amendment.

[Lord Ramsbotham]

My Lords, I was responsible for conducting an inquiry into the death of an Angolan called Jimmy Mubenga in an aircraft on the way back from Heathrow. He was under the escort of G4S guards, who have subsequently been charged with his murder. One of the problems that has come up with the Home Office is that nobody is responsible for the oversight of the training and assessment of the security company guards who are meant to escort people who are being deported from this country.

The problem is that the secure college staff will also be from the private sector. The Home Office is currently working out a code of practice that includes the involvement of the Security Industry Authority, which has responsibility for the supervision of people working in the criminal justice system. I very much hope this will be included in the work. It is all very well saying that staff will be trained, but who is responsible for both supervising the training and making certain that people’s training is up to date? That has been one of the problems with the escorts of people who are deported.

[Lord Faulks]

I am grateful for that contribution. I do not propose to give a detailed response now, but it is something that we will factor in.