Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my Amendment 42H is in this group, which I tabled in a rather more inquiring—and perhaps a rather less decided—frame of mind than the noble Lords, Lord Beecham and Lord Ramsbotham. I am not yet certain that there is not a role for new thinking on some commercial operations in these new institutions. I begin by apologising to the House for not having participated in proceedings on this Bill so far.

Amendment 42H is concerned with ensuring a high-quality educational experience for young people in these new institutions. As we have heard, this links into Amendments 44A, 44B and, to a lesser extent, Amendments 47 and 48. My interest in this topic comes from my involvement with the all-party parliamentary group on prisons, of which the noble Lord, Lord Ramsbotham, is the chairman. From time to time, the group hears presentations which are exceptionally powerful and persuasive. The presentation of relevance to my being here tonight was given by the Prisoners’ Education Trust, with whose help I have tabled this probing amendment.

It is, I think, generally accepted that having somewhere to live and a job to go to are the most significant factors in reducing reoffending. As a subset of this, research shows that the higher the level of educational achievement, the higher the likelihood of finding employment. Therefore, I entirely endorse, and very much welcome, the Government’s commitment to improve the educational journey for young offenders. This probing amendment is designed to discover how things will work at a practical level in the context of the secure colleges that are proposed to be established under Clause 29.

It seems to me the first set of challenges revolves around location. Noble Lords have pointed out that young offenders in larger secure colleges may well be at some distance from the homes to which they will return at the end of their sentence. How will the continued education of those young people be linked into their local authority and/or other community support programmes? In addition, given the recognition of the useful role that release on temporary licence plays in rehabilitation, which seems to me entirely sensible, how will that fit in with a continued and progressive educational experience?

Secondly, within the institutions themselves, there seems to be a number of challenges to providing this worthwhile educational experience. As the noble Lord, Lord Beecham, said, there is the shifting nature of the population, with young offenders arriving and departing in a way that may be educationally disruptive and not at all helpful to a scholastic timetable. As the number of young people in custody decreases, there is also the likelihood that the residual number may be particularly disturbed and troubled, and therefore the emergence of gang culture may well become prevalent. It would be helpful if the Minister could give us his thoughts on how that could be tackled, and whether there are sufficient resources so to do.

Of course, one way to address these various challenges would be to increase the use of IT-based distance learning. It is a field which continues to develop very quickly. New IT approaches can capture the imagination of young people in a way that the more conventional pedagogic approach does not, and can therefore play a valuable role in supplementing the latter, more formal approach. Further, an online tutor could also help overcome the problems of transitioning to the community from the secure college. However, I am given to understand—the Prisoners’ Education Trust is concerned about this—that the Government have reservations about increasing these young people’s exposure to distance learning. Will my noble friend tell the House whether this revolves around the cost of the system, the availability of suitably trained personnel or, perhaps more prosaically, issues of IT security?

As I said at the outset, I am convinced that improving educational performance provides a significant chance of reducing reoffending among young people. Therefore, I welcome the Government’s commitment to it. It will require some fresh organisational thinking, which is why I think commercial activities might be helpful—especially, as we have heard already, in the context of these larger secure colleges.

To address this, my amendment proposes a requirement to establish an individual learning plan. In turn, the construction of the ILP will have to involve all relevant bodies, statutory and non-statutory. It will require the assessing of the individual’s prior educational achievement and, finally, a path for that individual’s future demands. In the amendment I argue that this customised approach is likely to provide the most efficient and cost-effective way forward.

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

My Lords, in this group I speak principally to Amendment 43C in my name, and in the names of my noble friends Lady Linklater, Lord Carlile and Lord Dholakia.

In spite of the comment of the noble Lord, Lord Ramsbotham, to the effect that our amendment was unduly complex—

[Lord Ramsbotham]

I think that I said that it was comprehensive.

[Lord Marks of Henley-on-Thames]

I am very grateful: I certainly heard “complex” and was slightly surprised, because I have support from the Back Benches. I thought that we were rather saying the same things. A feature of this debate is that all the amendments in this group, including that of the noble Lord, Lord Hodgson of Astley Abbotts, have been directed really towards the same concerns and issues.

Since the proposal for secure colleges was published as part of the Bill it has provoked a great deal of public and well informed criticism. For my part, I am indebted to the Children’s Rights Alliance for England, the Howard League for Penal Reform, the Standing Committee for Youth Justice and others for their advice, for full and well informed briefings, and for meeting me.

We have sought in our amendment to set out two mandatory principles, the need for which we now consider is firmly established, and a number of aims that we believe the Secretary of State must strive to meet if the proposal for secure colleges is to be implemented. We completely agree with the aim of the Secretary of State to ensure that young people in custody enjoy full educational opportunities. He is right to start from the position that the involvement in education of many of our young people in custody has in the past been minimal and their educational attainment virtually negligible. If we are to address their criminality, a good starting point is to try to give them some genuine education from which they may benefit in their future lives. The question is how we achieve that effectively.

We are concerned that the idea that we could somehow create on a residential basis in the prison estate large but secure colleges with some resemblance to schools may be misguided and unrealistic. As I mentioned earlier today, the number of young people now in custody is below 1,100. On all the best evidence it is simply inappropriate to attempt to contain large numbers of those young people together, regardless of gender and age. As has been repeatedly emphasised in this debate and at Second Reading, young offenders in detention represent a group of young people with a mixture of diverse and serious problems.

The first subsection of our proposed new clause would therefore provide the two mandatory points mentioned: that secure colleges may not be used for the detention of girls or persons under the age of 15. The evidence has satisfied us that it is simply unsafe to mix boys of all ages from under 15 to 18 together with girls in custody in one institution. Given all the evidence, we cannot believe now that the Government would wish to proceed on any other basis. I invite the Minister to confirm as soon as he can that that is the position.

Our second subsection is designed to ensure that the welfare of persons detained in any secure college has to be the primary consideration that the Secretary of State will have in mind in making any decisions that affect the lives of those in custody. In one sense, that may be obvious, but we feel it should be clearly stated in the Bill.

Our third subsection, comprehensive or complex as it may be, sets out a number of aims that the Secretary of State should be required to keep at the forefront of his mind when setting up and providing any secure college. I do not shirk from saying that I fear that many of these aims are incompatible with what we understand to be the Government’s present intention to establish a large, secure college in the Midlands housing nearly one-third of all young offenders currently in detention.

The first consideration must be the provision of a safe and secure environment for all those detained in secure colleges. The next aim must be that any secure college is of an appropriate size. Having considered the question of size, I now have no doubt that what we mean by “appropriate” is “small”. All the evidence we have considered suggests that a small institution capable of giving young offenders individual attention is essential to rehabilitation and educational attainment.

We also believe that it is very important that young offenders are detained close to home. Their families should be able to visit them and stay overnight if necessary. We have stressed throughout this Parliament the importance of rehabilitating young offenders within their communities specifically so that upon release they may come out and rejoin their families, friends and communities with some hope of local employment to come. Education in custody should be directed to that end.

One aspect of the current proposal for secure colleges that causes us concern is the idea that young offenders may be moved miles from their families, which could prove profoundly damaging. An associated concern that follows from that is that supervision before and after release, which we have made a priority, will lack the continuity that we have promised. If an offender is in custody, as is proposed, in an institution near Leicester and is to be released to Cornwall, it is unlikely that there can be any meaningful continuity of supervision.

Furthermore, we believe that if secure colleges are to achieve what they set out to achieve, real thought needs to be given to the type of educational opportunities that can realistically be offered. It is bound to be very difficult to provide suitable courses for young offenders who are sentenced at different times, due to be released at different times and sentenced for different periods. The noble Lord, Lord Beecham, mentioned that 79 days is the average period in custody. We cannot imagine that courses can be arranged that will meet the needs of more than a very few offenders at a time. Given what noble Lords have said, I ask my noble friend to elucidate what the Secretary of State has in mind. The question of distance or online learning raised by my noble friend Lord Hodgson of Astley Abbotts may well merit further consideration.

There is also the question of outdoor and sporting facilities and facilities for indoor recreation. It is crucial that the recreational needs of these young people be catered for. In the proposed very large pathfinder secure college, we are concerned that these facilities may be, if not entirely, at least very largely, lacking.

There is considerable concern, which has been mentioned by other noble Lords, about staffing and the need for staff with specialist training across a range of skills: not just teachers but counsellors, medics and others. My noble friend needs no reminding that many of the young offenders detained in these colleges will have special educational needs. Many of them will also have particular problems relating to their physical and particularly mental health. A number of young offenders have problems arising from drug or alcohol abuse; many come from profoundly dysfunctional backgrounds, many from criminal families. These issues need careful and focused personal attention. Will a secure college environment, as is proposed, be able to meet these needs?

Our final proposed new subsection would require the Secretary of State to consult the Youth Justice Board as to how the aims that we have set out might be achieved. I fear that there is a great deal of work to be done. We doubt that the present proposal can in its present state properly proceed, and we urge the Secretary of State to ensure that all decisions in this area are firmly based on sound evidence and good advice. The rehabilitation of young offenders is too important to be the subject of a gamble on a less than fully developed idea.

In summary, we fully support the Government’s aim to provide more and better education in custody, but we doubt that the present proposals for secure colleges have any realistic prospect of achieving it.

--- Later in debate ---

I have endeavoured to deal with all the amendments but, as I explained earlier, there were so many questions that I could not deal with all of them in my response. I am grateful to all noble Lords for this very useful debate in which a number of issues have been raised. I hope that in light of the assurances and reasons I have given to your Lordships the amendments will not be pressed.

[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.

--- Later in debate ---

Moved by

[Lord Marks of Henley-on-Thames]

42L: Clause 29, page 31, line 15, after “further” insert “provisions and”

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, Amendment 42L is merely formal. This group refers to the use of force in the secure colleges, and in particular to force against young persons detained there.

Amendment 42M, which is not purely formal, would require the secure college rules, in so far as they authorise the use of force against young offenders—it is much narrower than the other amendment relating to procedure—to be made by statutory instrument under the affirmative rather than the negative procedure. Under this amendment, it would also be a requirement that the Secretary of State should consult on the proposed secure college rules with the Youth Justice Board and the Independent Restraint Advisory Panel before laying a draft before Parliament.

The requirement for an affirmative resolution for secure college rules authorising force was a recommendation of the Delegated Powers and Regulatory Reform Committee, on which I serve. The recommendation was made notwithstanding that other prison rules—even for young people, as my noble friend has pointed out—are subject to the negative procedure. However, these are extremely important rules concerning the use of force against children. The committee was very influenced by the clear views of the Joint Committee on Human Rights and the decision of the Court of Appeal in 2009 in C v the Secretary of State for Justice that the proposals for the use of force for the purpose of maintaining good order and discipline were, as they stand in the Bill, inconsistent with Article 3 of the European convention.

The provisions authorising the use of force in the Bill for contracted-out secure colleges are indeed profoundly discouraging. As I mentioned, force is to be permitted to be authorised for purposes which include ensuring good order and discipline on the part of inmates and attending to their well-being. These purposes are far too wide. They smack of a military origin and are out of sympathy with contemporary views on the restriction of the use of force against children. Your Lordships will wish to be extremely vigilant where we are concerned with the authorisation of such force. We accept the Joint Committee’s clear view that the proposed authorisation of force would infringe Article 3.

Contemporary views on the use of force against young people are that the correct way to frame such authorisation is to ensure that the force used is minimal and restricted to what is absolutely necessary. Our Amendment 42N attempts to achieve this and its purposes are restricted by reference to five conditions. It says that,

“the first condition is that the force is authorised only for the purpose of … self-defence or the protection of others, including the protection of the person against whom the use of force is authorised … the prevention of serious damage to property”,

preventing escape and carrying out an authorised search. The second condition, which is crucial, is that force can be authorised for use only “as a last resort”. The third is,

“that the force authorised must be the minimum necessary to achieve the purpose”.

The fourth is that the force must be used,

“for the minimum duration necessary to achieve”,

that purpose, and the fifth is that the force should be,

“limited to techniques forming part of an approved system of restraint”.

We have added to that a requirement that:

“Secure college rules must provide that”,

all those who are “authorised to use force” should have been properly trained,

“in the use of force and in minimum restraint techniques”.

This represents a sensible contemporary view of the appropriate authorisation of the use of force in such colleges as are proposed for the restraint of young people. We contend that these restrictions should appear on the face of the legislation, in the terms that we have described. I beg to move.

[Lord Ramsbotham]

My Lords, I shall speak briefly to Amendments 46 and 46A in this group. All I want to say is that I for one simply do not understand why there is any need to have this proposal in here, when already there has been an independent review of restraint in juvenile secure settings, which was chaired by the previous chairman of the Royal College of Psychiatrists. She was a most eminent adolescent psychiatrist and she produced what were called minimum rules, which were published by the previous Secretary of State. If minimum rules for the use of restraint in secure children’s settings have already been produced by a Secretary of State, I simply cannot see why there is any need to go down this route, which seems to be an own goal of monumental proportions when there is already something to prevent you even being on that pitch.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful to my noble friend for the response he has given. It appears, at least in principle, that all the conditions we set out in our amendments are accepted by the Government. We want to see some security about the future implementation of those conditions. However, we understand that the Government’s position is sympathetic to what we say. Saying that, I beg leave to withdraw the amendment.

Amendment 42L withdrawn.