Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 10th November 2014 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I understand that the Minister may accept the amendment of the noble and learned Lord, Lord Woolf, and in that case the noble and learned Lord will have entered the fold, but this time it is the ministerial sheep who will emerge wearing the Woolf’s clothing—and for that I am sure the House will be grateful.

The noble and learned Lord identified some of the potential problems that need clarifying and we look forward to receiving that clarification. I would like to add another issue that was raised in the debate on Report, and that is the possible availability of legal aid for such applications. I dare say that the Minister will confirm that that will at least be considered and that any reference to it will be contained in such a report in due course.

One other matter to touch on is no doubt encompassed within the terms of the amendment. There was an indication at an earlier stage that the Government would possibly be looking to the magistracy as a source of potential recruitment for those who would undertake this responsibility. The matter has aroused some concern. Obviously I am not asking the Minister to give an indication finally one way or the other, but I take it that he would confirm at least that that is not the only possibility that will be looked at—in which case we will await the Government’s response in due course with keen anticipation.

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

My Lords, I thank the noble and learned Lord, Lord Woolf, for his helpful explanation of the amendment to Clause 8 in his name, and for helpfully setting out the concerns that lie behind it. I understand them, and why the noble and learned Lord seeks to make sure that Parliament is given the opportunity to consider a report by the Secretary of State about how the recall adjudicator model will operate before the provisions can be brought into force. I have no objection to the principle of what his amendment is seeking to achieve and am happy to make a commitment that before the recall adjudicator provisions are brought into force, the Government will produce a report for Parliament on matters such as the recruitment process, qualifications, training and costs.

The amendment of the noble and learned Lord is quite specific on some aspects of what the report must contain. I bear in mind what he said, namely that this should be a minimum, as he saw it; we do not indeed anticipate that it would be restricted entirely to those matters. In particular he is specific about the anticipated costs of the recall adjudicator system compared to the costs of recruiting more Parole Board members and case managers.

While the Government would be happy to provide an analysis of the respective costs and benefits of the new model—and indeed we will be publishing a further impact assessment on this—we would not wish to be tied to including in the report such a direct comparison of the sort prescribed in the amendment. This is a constantly evolving area of work, with the Parole Board itself driving forward changes to its process, and new operating models, and we would want our cost-benefit analysis to have the flexibility to take account of those developments rather than tying ourselves in the legislation to making this very specific cost comparison. But we will provide information as to costs.

However, I accept the point and agree that our report should set out the respective costs of the new process and systems compared to carrying on with the Parole Board model. The Government’s position is that we would have no objection to providing a report on the sort of information that the noble and learned Lord asks for, but until we have had more time to consider exactly what that report should contain and how best to present the information, we would not wish to be constrained by the exact requirements of the noble and learned Lord’s amendment.

When the Government introduced the recall adjudicator provisions, I explained that the aim was to introduce greater flexibility in the way that determinate recall sentences are reviewed and to allow the Parole Board to concentrate its resources on indeterminate sentence prisoners. There is a great deal of further work to be done on the detail. The noble and learned Lord was quite right to identify the case of Whiston and the decision of the Supreme Court, which enabled the Government to bring forward this amendment, albeit on Report—but we would not have been able to bring it forward before then because the decision had not been reached. I think that inadvertently the noble and learned Lord suggested that the decision had been reached in 1914. It was a little more recent than that—2014, to be precise—but I am sure nobody misunderstood that. The Government move a little faster than that.

[A noble Lord]

Sometimes.

[Lord Faulks]

We will operate an analysis of how it will deliver the benefits we envisage in the most cost-effective way. We are committed to undertaking this further development work in a collaborative and open way. It will be vital to get the new model right and to ensure that those with an interest in how this will work, including Parliament, are kept informed and have an opportunity to offer views on what is being proposed.

The fact that the Bill is silent on the precise workings of the recall adjudicator does not mean that the process will be devoid of safeguards. The Bill already makes provision for the Secretary of State to make rules regarding the way in which the recall adjudicators work. These rules will be made by statutory instrument, allowing for further parliamentary scrutiny. Ultimately, the protection of the public remains at the heart of any decision to release—or not to release—a prisoner from custody. That is why we will ensure that there is a robust system of selection and appointment of recall adjudicators. I have already indicated that it is our intention that such appointments would be filled by people with significant criminal justice experience.

In answer to the noble Lord, Lord Beecham, we have certainly not ruled out the possibility of using magistrates. The feasibility of using magistrates is very much a matter for consideration. Of course, they will be magistrates with significant and appropriate experience in criminal justice—not every magistrate—and they would be given rigorous and appropriate training before being allowed to perform the role of recall adjudicator. But there is in the magistracy a great deal of experience, and it would be unwise to rule out the possibility of using appropriately experienced and trained magistrates for that purpose. A solid foundation of knowledge and experience will be complemented by this training, as well as by guidance and oversight by the chief recall adjudicator.

The noble Lord, Lord Beecham, also asked about legal aid. He effectively asked whether recalled offenders would be denied legal aid under these proposals. The answer is that legal aid will still be available. For once, I can give a satisfactory answer, I think, to the noble Lord, Lord Beecham.

The Government are absolutely determined to ensure that all the necessary safeguards are in place before we implement these changes. I hope that this demonstrates to the noble and learned Lord our commitment to ensuring a fair, impartial and robust process for prisoners that does not put the public at risk.

Returning to the final point of the amendment tabled by the noble and learned Lord, which was about costs, he will understand that we are committed to ensuring that the new model is as cost-effective and efficient as possible. There is no question that we will have to achieve overall savings and benefits in the criminal justice system as a whole. It will do this primarily by diverting determinate recall cases away from the Parole Board, processing them in a quicker and less resource-intensive way, and by allowing the board to focus on making inroads into the backlog of indeterminate sentence cases, thereby avoiding delays in hearings and release decisions, which in turn has an impact on prison numbers.

We will, therefore, carry out a careful analysis of the costs and benefits of the new process as part of the development of the model and plan to publish a further impact assessment when that work has been done. The Government are willing to share that analysis as the model is developed, and I have already undertaken to consult the Parole Board as we go along and to provide a report for Parliament. I hope therefore that with the assurance I have given about the Government’s commitment to ensuring that adequate safeguards are in place, to working closely with the Parole Board and to providing Parliament with a report, I can persuade the noble and learned Lord to withdraw his amendment.

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[Baroness Williams of Crosby (LD)]

My Lords, I will make a brief intervention. I very much commend the amendment of the noble Earl, Lord Listowel. Quite simply, the position of 17 year-olds has changed radically since 1984. The proportion of young people staying on in education to 18 or beyond has almost doubled in that time, and many young people continue within their family structures until the age of 18, which was not so much the case in 1984. So it is important that the Government look at this. Schools continue to have responsibility for young people who are at school until the age of 18. It would therefore be rather bitter if that responsibility was recognised as continuing while people are at school, but then ending when they cease to be at school.

There is some very disturbing information about the number of young people who commit self-harm when in detention, as a result, for example, of very serious mental health problems. Without detaining the House of Lords further, it is worth looking at whether the age of 18 is not a more natural bridge to a young person becoming a fully responsible adult than the present age of 17. It might do something to reduce the suffering that some of these young people undergo in detention.

[Lord Faulks]

My Lords, both in Committee and on Report, there was agreement around the House that this amendment had a great deal to recommend it. It follows the tragic cases of three 17 year-olds who committed suicide following their encounters with the police, to which the noble Earl, Lord Listowel, has referred this afternoon. Their families are determined that no other parents should suffer such a loss, and want to see a change in the law so that 17 year-olds are treated as children. I pay particular tribute to the noble Earl for his continued commitment to improving the welfare of young people, and for helping to keep this important issue at the top of the Government’s agenda.

Despite recognising the merit of this amendment, the Government resisted it both in Committee and on Report as they were still reviewing all the remaining pieces of primary legislation which treat 17 year-olds as adults. That review was proactively launched following the High Court’s decision in the case of Hughes Cousins-Chang. That the review was launched is testament to the commitment of the Government to ensuring that young people are protected and treated appropriately while in police custody, ensuring that 17 year-olds have the protection to which they are entitled. My noble friend Lady Williams makes an important point about how 17 year-olds have changed in many ways.

Seventeen year-olds who come into contact with the police are afforded important safeguards by Section 11 of the Children Act 2004. This places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions, and means that the police have to make arrangements to safeguard and promote the welfare of 17 year-olds. Additionally, following the amendments to PACE codes of practice C and H as a result of the Hughes Cousins-Chang ruling, children aged under 18 have access to appropriate adults at the police station, whose function is to support them throughout interviews and during procedures such as the taking of fingerprints and samples. A parent or legal guardian must also be informed of their detention. Indeed, it is common for a parent to perform the role of appropriate adult for their child.

On Report, the noble Earl welcomed the news of the internal review. He directly asked the Government if something could be done in this area by Third Reading, although he caveated that by saying, effectively, that he realised that such a change would be unlikely. However I am pleased to inform the House that the Government have listened to his plea and the passionate collective voice of the families of loved ones who are tragically no longer with us. The Government have now concluded their review and have arrived at a very clear conclusion: the provisions in PACE that relate to the treatment of 17 year-olds should be amended as soon as possible so that they are treated as children.

I must point out that this is a very complex area and the Home Office review was very wide-ranging—more so than the amendment that has been tabled today. This means that the amendment only partially affects the change in relation to the treatment of 17 year-olds. However, in the limited time available, this amendment makes the most substantial change, that relating to the overnight detention of children charged and denied bail. The effect of the amendment would be that 17 year-olds, as with 12 to 16 year-old children, must be transferred to suitable local authority accommodation overnight in these circumstances. The amendment has the full backing of the police. The Home Office will work with forces to help them prepare for implementation.

The noble Lord, Lord Ponsonby, asked a question that is perhaps not entirely related to this amendment but he was kind enough to give the Government notice of it. As I understand it, it concerns those acquitted after a trial, whereas the focus of the amendment to which he referred is victims and witnesses. Indeed, a number of statutory protections within the criminal justice system are applicable only to victims and witnesses. The position with an acquitted defendant is that the court retains its inherent powers to order reporting restrictions in the case of defendants where that is necessary to ensure that the administration of justice would not be seriously affected. It has that right. Of course, up to the age of 18 defendants will continue to be subject to the youth reporting restrictions that apply automatically in the youth court and may be applied in other court proceedings. That is the position.

Returning to this amendment and in conclusion, this Government share all noble Lords’ desire to ensure that children are always treated appropriately, including where they are suspected of wrongdoing. If how we treat our prisoners is a measure of how civilised a society is, this must surely apply to how we treat our children when they are in trouble and at their most vulnerable. Therefore, I trust that I have noble Lords’ support in the Government’s decision to seize the opportunity afforded by the Bill and accept the noble Earl’s amendment.

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Moved by

[Lord Faulks]

4: Schedule 15, page 167, leave out line 32

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Moved by

[Lord Faulks]

That the Bill do now pass.

[Lord Ramsbotham (CB)]

I apologise to the Minister for not raising the point that I am now going to mention. However, as it is based on a report that was published only last week, I have only very recently become aware of the position that I wish to raise. When I was the newly appointed Chief Inspector of Prisons, I found that the treatment of and conditions for women prisoners in Holloway was a national disgrace. I was frustrated to learn that current practice for handling inspection reports offered no hope of immediate remedial action, so I fell back on army practice and suspended my inspection for six months, during which period I expected defined action to be taken. I feel the same frustration about the proposal for a secure college contained in Part 2 of the Bill, having learnt that the rules of the House do not allow me to bring forward a Third Reading amendment based on a report that was published only last week, which I believe changes the whole nature of the proposal.

Before the Bill leaves the House, therefore, because the treatment of children is a matter of national importance, I feel that I must make one last appeal to the Government. Before doing so I assure the Minister that nothing I am going to say reflects on the way that he has taken the Bill through the House—during which, all noble Lords, while not necessarily agreeing with him, have admired the skill with which he, as a renowned advocate, has defended his brief, and been assiduous in briefing us, both verbally and in writing, on that brief. However, unlike the noble Lord, Lord Nash, during the passage of the recent education Bill, who was able to accept the case for inclusion of young offenders with special educational needs among those for whom education, health and care delivery must be provided, the noble Lord’s position in regard to any reasoned suggestion of change to the Secretary of State’s pet plan, appears akin to that of the tank commander with whom the Chinese student tried to reason in Tiananmen Square.

Last Tuesday, I took part in the launch of a British Medical Association report, entitled Young Lives Behind Bars: the Health and Human Rights of Children and Young People Detained in the Criminal Justice System. Welcoming it, Norman Lamb MP, Minister of State for Care and Support, wrote:

“The newly established Children and Young People’s Mental Health and Well-Being Taskforce, includes a specific working group on vulnerable children and young people, including young people in contact with the Youth Justice system and will focus on how services can best meet their needs”.

In her foreword, Juliet Lyon, director of the Prison Reform Trust, who has considerable experience of working with young offenders, wrote:

“This timely, authoritative report presents an overview of the complex reasons why children and young people offend, their multiple needs and the challenges they present. It enables practitioners and policy makers to reflect on their work with young people in trouble”.

She went on to say:

“An almost 60 percent reduction in child imprisonment over the last seven years … offers a tremendous opportunity for health and justice professionals to focus on the most vulnerable children and help them to get out of trouble”.

I quote two of the report’s recommendations:

“Practitioners should consider how best to encourage involvement and interaction with healthcare services, in a manner that is appropriate to the needs and concerns of children and young people in custody”,

and:

“Health and wellbeing of children and young people should be seen as concerns for all those working in the secure estate, not just healthcare professionals. To this end, all staff working in the secure estate must be adequately trained and supported in identifying and reporting health concerns”.

I said on Report that the House is being asked to rubberstamp a pet project of the Secretary of State for Justice, without the known agreement of the Cabinet committee appointed to ensure that all departments drive forward the aims of the government’s social justice strategy, key indicator number 3 of which is a reduction in the number of young offenders who go on to reoffend. In addition to ignoring proven national and international good practice, as well as the advice and pleas of countless people with experience of working with young offenders, I now understand that the Secretary of State has ignored the advice of paid consultants such as Deloitte, which recommended smaller establishments on the lines of Diagrama in Spain—the subject of a fascinating article in the Guardian on Saturday entitled “Tough Love”—and current practice in America.

I admit that this is the first I have heard of the children and young people’s mental health and well-being taskforce working group, charged with focusing on the needs of the very children whom the Secretary of State is proposing to detain in his secure college. Far from being children for whom normal education and security provision might be appropriate, these have a multiplicity of mental health and behavioural needs, and their reaction to any regime, let alone one based on the education that almost all have rejected or from which they have been excluded, will be conditioned by the complexity of their problems. Furthermore, the majority are to be uprooted from their family and local social or healthcare workers, whose involvement in their post-release rehabilitation is crucial. A recent conversation with NHS England has caused me to look again at two remarks made about healthcare by the Minister on Report:

“We also have been working closely with NHS England… to test our designs for the secure college pathfinder”,—[Official Report, 22/10/14; col. 660.]

and,

“a … health unit placed strategically in the middle of the design … will be the best way of delivering healthcare uniquely tailored to those individuals”.—[Official Report, 22/10/14; col. 663.]

True, a health unit is now placed strategically in the middle of the design, but it was not there when the Minister briefed us in July, suggesting that working closely with NHS England is a comparatively recent occurrence. What is more, as I am sure he realises, adequate tailoring of the delivery of healthcare appropriate to meet the multiple and complex needs of 320 damaged and vulnerable children requires more than just a strategically placed health unit. NHS England tell me that it is pressing for healthcare, particularly mental health care, to be embedded in the culture of the proposal, requiring confirmed resources, particularly of appropriately trained staff, without whom healthcare, adequately tailored or otherwise, cannot be delivered. But, as the Minister knows, there is an acute shortage of appropriately trained staff in the country, let alone in the middle of Leicestershire.

So the situation appears to be this. On the one hand, we have the Secretary of State for Justice who, without any evidence and in apparent defiance of government strategy as well as vast amounts of expert advice, insists on pressing ahead with his claim that his,

“new form of youth detention accommodation with”,

as yet unspecified,

“innovative education provision at its core … will equip young offenders with the skills, qualifications and self-discipline they need to turn away from crime”,

and believes that,

“it is right to focus on the educational outcomes that the establishment achieves rather than the staff it employs”.

On the other hand, we have the cross-government social justice strategy, a specific working party of the NHS children and young people’s mental health and well-being task force, and the declared opposition of countless experts who know from practical experience how essential trained professional staff are to the development and future well-being of this damaged and vulnerable cohort of children.

I said in Committee that the changed nature of the detained children population, resulting from the Youth Justice Board’s success, gave the Secretary of State ample justification for rethinking this proposal. I fully accept that I failed to persuade the House to vote that he should be required to obtain the approval of both Houses before proceeding with his proposal or to test the opinion of the House on a rethinking amendment. However, I submit that the evidence now available, thanks to the BMA report and the recent involvement of NHS England and the mental health and well-being task force, exposes serious flaws in the well intentioned, education-based secure college proposal, which clearly is not tailored to the characteristics, capabilities and needs of its suggested population.

I realise that that is not something that either the Minister or the Secretary of State can resolve, because of the involvement of the NHS and a Cabinet committee. I therefore ask the Minister that it be referred to the Prime Minister himself, who, I hope, will make a statement in the other place on whether, having examined all the available evidence, he authorises that the proposal should go ahead or that it should be put on hold until it has been rethought.

[Lord Beecham]

My Lords, I certainly endorse the remarks of the noble Lord, who has consistently questioned the detail of the Government’s proposals in respect of secure colleges. I must agree with him that the BMA report, published only last Tuesday, makes for sombre reading. The report emphasises the need for the state,

“to ensure that detained children and young people have access to healthcare that is appropriate for their age and health needs”—

which the EHRC has identified as a critical human rights challenge—given that,

“Custodial detention is the most extreme form of social exclusion that can be imposed by the state”.

That need is likely to be enhanced in the secure college context by the very nature of the institution and its physical remoteness from the family and community whence the offenders have come and to which they will return. After all, the report refers to the average time that offenders will be housed in the college as 85 days, which is not a long period. Clearly, after they move on, there will be a concomitant need for the provision of adequate healthcare and, indeed, educational provision.

It appears, then, that NHS England will have to do more than simply commission healthcare provision within the college. It is welcome that there will be such a physical provision, although the noble Lord has pointed out that, of itself, that will not be enough. NHS England will have to ensure that appropriate provision will be made when the offender returns home, quite conceivably in a different NHS region. How will that work? Will NHS England assume responsibility in a different region, or will it be involved from the outset? How will the commissioning process work, both for the period during which the offender is in the college and afterwards?

What will be the role of the relevant local authorities? Leicestershire, in the first instance, will be the site of the first college. Will the home authority deal with educational and childcare provision on the offender’s return home or return to residential care in the case of looked-after children? Have there been any discussions with local authorities—with Leicestershire in the first instance, which presumably will be able to provide educational and other provision if the project goes ahead within its boundaries—and with the Local Government Association on behalf of other local authorities generally, in respect of the need to follow up when the offender returns home?

The noble Lord has made a robust critique of the proposals this afternoon and throughout the debates on this Bill. When the Bill returns to the House of Commons, it is important that the other place should have a response to the questions that he has raised, the suggestions he has made and those which I have added.

However, at this stage, I join the noble Lord in expressing our thanks to the Minister who has, as ever, argued the Government’s case with great skill and perhaps conviction—but certainly with great skill. We are grateful to him and to the Bill team for the assistance that they have given. In some respects, the Bill has been improved, but this area remains extremely problematic. I hope that the Minister will be able to persuade his colleagues to look again at the questions and issues that have been raised, in which case he will be entitled to even more gratitude than that which I and others now extend to him.

[Lord Faulks]

My Lords, I am, of course, disappointed that the noble Lord, Lord Ramsbotham, remains concerned about the provisions in the Bill to create secure colleges. With 68% of young people reoffending within a year of leaving custody, the Government have taken the view that it is clear that things must change. As the House knows, secure colleges will put high-quality education at the centre of efforts to rehabilitate young offenders. These provisions in the Bill provide the framework for this approach.

As the noble Lord was good enough to say, the Government have gone to great lengths to engage Peers, stakeholders, practitioners and experts—and, indeed, young offenders themselves—on our plans. Indeed, we are currently consulting on our approach to secure college rules and, in response to concerns voiced in this House, we have amended the Bill to make these rules subject to the affirmative procedure to the extent that they authorise force, which was an area of particular concern.

The noble Lord described my position as being rather like that of a tank commander. I am not sure whether that was a compliment or the opposite. Be that as it may, it would be wrong to suggest that the Government are frozen in a rigid posture in responding to any new knowledge or learning that is available on the best way to treat these particularly vulnerable young people. The report from the BMA published last Tuesday will inform the Government’s approach to this issue and, indeed, to all issues.

Of course, the noble Lord is quite right, as was the noble Lord, Lord Beecham, to focus on the health needs of this cohort. The Government have worked closely with NHS England since the inception of the proposal, and I assure the noble Lord and the House that we have a very constructive and well established relationship with the Department of Health and NHS England on youth justice. I should remind the House that NHS England commissions healthcare for young people in custody. During the debates, I attempted to indicate to the House how the provision of healthcare within the secure college should enable its better delivery to these young people—better, we hope, than in the current youth custody estate.

As I say, we continue to develop these plans. We will, of course, bear in mind all advice from whatever source, particularly any new learning that is available. However, we continue to believe that these secure colleges—whatever anxiety may reasonably be expressed about them—will provide an appropriate means of giving education to young people who, sadly, have often lacked any continuity in their education and, at the same time, help them to rehabilitate and to emerge at the end of their sentence with a much better chance of leading useful lives. I hope that I have gone some way to reassure the noble Lord and ask the House to pass the Bill.

[Lord Beecham]

My Lords, before the Minister sits down, I would be grateful if he would comment on the role of local authorities through their children’s services departments, in addition to the health aspect. The two cannot be divided.

[Lord Faulks]

They cannot—but I am not going to comment in detail from the Dispatch Box on those precise roles. Of course, as the noble Lord will be aware, local authorities have statutory functions in relation to all young people in their local authority area. Those duties will continue, depending on the geographical position of the young person—and of course the NHS has its own obligations, wherever that individual may be. If I have any further information to elaborate upon my answer to that question, I will do so in writing.

Bill passed and returned to the Commons with amendments.