Criminal Justice and Courts Bill

Lord Ramsbotham Excerpts

Monday 21st July 2014 Lords Chamber

As matters stand, the current plans bear the hallmark of the Secretary of State’s penchant for eye catching and headline grabbing that is inadequately thought through and unsupported by evidence. In the absence of significant movement, we will return to these amendments on Report to secure significant changes to some very badly flawed proposals. I beg to move.

[Lord Ramsbotham (CB)]

I shall speak to Amendments 43, 44B, 45, 47 and 48 in my name and support without further comment Amendments 42F, 42G, 42J, 42K, 43, 43A, 44A and 45A, to which I have added my name, and about which the noble Lord, Lord Beecham, has spoken so eloquently. Later in the proceedings I shall speak on clause stand part, putting forward alternative proposals to those about which so many object so strongly—witness the complex Lib Dem Amendment 43C.

At Third Reading of the Bill in the other place, the Secretary of State said of the Government that they were not a Government who,

“legislated without taking into account the views of Parliament”. —[Official Report, Commons, 17/6/14; col. 1070.]

Those of us who observed the deliberate way in which Parliament was denied the opportunity to discuss changes to the way probation is delivered have reason to question this. There has already been discussion about secure college rules at Second Reading, when the Minister told the House that some, but not all, were to be subjected to the consultation process, which would be launched before Report. He assured us that this included those related to the use of reasonable force in the interests of good order and discipline, which subject is to be discussed in the next group. However, in addition to its incomplete nature I am concerned that the consultation process will not be completed before the Bill has completed its passage through both Houses, thus reducing parliamentary involvement in the consultation to something of a farce. The Minister will remember that I asked him, when he addressed a Cross-Bench meeting, whether or not these rules had been published. The head of the Bill team said that they had not, in contradiction to the Secretary of State, who told the other place at Third Reading that they had; that appears in col. 1071 of Hansard on 17 June.

As the noble Lord, Lord Beecham, has pointed out, instead of laying down what regime potential contractors are to provide in secure colleges, the Government appear to be inviting them to say what they propose to do, the best alleged value for money then presumably being adopted as government policy. But by no stretch of the imagination should any country that claims to be civilised do the same as far as rules governing the good order and discipline of children are concerned. Therefore Amendment 43 is designed to ensure that Parliament is given an opportunity to scrutinise and approve whatever the Government lay down in this regard.

I have a further plea for the Minister regarding the consultation on the rules. I hope that this time it will be a proper consultation and not yet another Ministry of Justice travesty which consists of calling for consultations and then publishing a pre-determined plan regardless.

Amendment 44B relates to changes made during the passage of the Children and Families Bill regarding children with special educational and speech, language and communication needs. Originally, children in detention were excluded from any provision, including education, health and care plans that home local authorities were required to make for any child with such needs. However, that has changed, and not only are places of detention now required to provide resources to enable an EHC plan to be continued while in custody, but that place is responsible for informing the local authority if the child is moved. Furthermore, a child can be assessed while in custody and an EHC plan made which is then binding on the home local authority on his or her release.

My amendment is designed to place a duty on the principal of a secure college, to use their best endeavours to ensure not only bthat the needs of those children arriving with the existing EHC plans are met but that staff are trained to identify those with problems so that they can then be assessed for such plans. This is not a new subject, because on Report in the other place, the Minister agreed that,

“a great deal of further thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]

What action has been taken in this regard?

Amendment 45 relates to the vexed issue of staffing. As the Minister knows, the principal reason for the relatively high cost of secure children’s homes is the high staff-child ratio, which reflects the numbers of specialists whom this age group needs. As I found when inspecting private sector prisons, companies were tempted to take risks with staffing to preserve their profit margins, which led to problems over safety. Furthermore, because of the wages that such companies pay to unskilled employees there is a very high turnover of junior staff, which is the very antithesis of a key point in successful working with the kind of children we are talking about, namely enabling long-term contact with responsible adults. Can the Minister say whether minimum staff-children ratios have been laid down, so that secure college contractors cannot take short cuts with children’s safety?

Amendment 47 seeks to ensure that the Secretary of State specifies the content of the educational programme that the Government have said they will provide in order to double current provision. So far, we have no details of whether this refers to academic-only content—related to the current 12 hours a week provided in YOIs, 25 hours in secure training centres or 30 hours in secure children’s homes—or what proportion will be vocational, physical, social or whatever. Without any baseline, how can the Government possibly judge the efficacy of any competitive bid? To be quite honest, it seems that the Government simply have not a clue about what is needed to satisfy their specious claim and that, under the smokescreen of phoney commercial in-confidence claims, they are hoping that potential providers will come up with some answers that they can then pretend are their programme. I challenge the Minister to prove that I am wrong by producing evidence of the details of the programme that has been put out to tender, and details of who evaluated its ability to meet the need.

Finally, Amendment 48 refers to the statutory training of secure college custody officers. To be utterly frank, the twin issues of quality and qualifications of staff trouble me greatly because of the damage that unsuitable or ill trained people can do to already damaged children. I remember meeting an old Army colleague—a member of my personal protection team when I was commanding my regiment in Belfast—after a gap of 20 years, when he was the senior officer responsible for the reception of children at HM YOI Onley, which was first the YOI that I inspected. I had added a social services inspector to my team because at that time we had no children’s custody expert. After two days, she told me that if Onley were a secure children’s home, she would have recommended the immediate closure of its children’s part because of the paucity of its regime and the lack of qualified staff.

I then met Corporal Gibbons and asked what I could give him if I had a magic wand. I shall never forget his answer: “Time—20 minutes trying to convince these young people that, for the first time in their lives, a responsible adult is taking an interest in them is worth all the hours of programmes, or whatever they call them”. The lesson still applies today and woe betide anyone who forgets it. The purpose of this amendment is to enable Parliament to ensure that all secure college staff are qualified to make the best use of the time available to them, which will enable them to make the vital breakthrough in changing troubled young lives.

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[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.

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[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.

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[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.