Criminal Justice and Courts Bill

House of Lords, 22 October 2014.

Report (2nd Day)

Lord Beecham (Labour)

My Lords, this amendment is an appetiser for the main course that awaits us in the form of secure colleges, about which we will hear a good deal.

Secure children’s homes care for some of the most damaged children, necessitating intensive and, it has to be said, expensive care. The numbers have been reduced in recent years. There are now 138 places in secure children’s homes. In Committee, I suggested adding them to the facilities that might be provided by the Secretary of State alongside existing young offender institutions and secure training colleges and the secure colleges that the Bill seeks to establish.

In his reply, the Minister explained the failure to include secure children’s homes, on the list, on the basis that local authorities had the power to provide such homes, and the Secretary of State does not and never has had that power. He went on to say that it is for local authorities to provide sufficient places as are required in secure children’s homes, and we think it right that they retain responsibility for this.

However, the amendment does not require the Secretary of State to provide secure children’s homes; it gives him the power to do so. In any event, it is surely desirable that such provision is seen as part of a range of different facilities. Given the pressure on local authority budgets and the concerns that secure colleges, if they are to be included under this legislation, might reduce the demand for such places, it is surely reasonable for the Secretary of State to have some involvement—potential, if not immediately actual—with this part of what should be seen as essentially one service aimed at providing for these children of varying degrees of vulnerability and difficulty, albeit in different ways.

I hope the noble Lord will acknowledge that this is meant to be a constructive amendment, which does not impose a duty but opens up the possibility of having a whole-system approach to this group of young people. I beg to move.

Lord Faulks (Conservative)

My Lords, this has been a short debate about the place of secure children’s homes in the youth custodial estate. As the noble Lord, Lord Beecham, said, it is something of an appetiser for what I know is to come during the course of this afternoon and evening.

I recognise on behalf of the Government that much good work is done in secure children’s homes, and that they often accommodate some of the most vulnerable young people in custody. The Government are clear that we will continue to provide separate specialist accommodation for those who need it. We have also made clear that, while we believe the secure college model could cater for the majority of young people in custody—that is, a secure college rather than a secure children’s home—it will not be suitable for 10 and 11 year-olds or for some young people with the most acute needs or vulnerability.

This year, we have demonstrated our commitment by continuing to provide places in secure children’s homes by entering new contracts with nine homes to provide 138 places. I know that many noble Lords will have observed the decline in the number of places in secure children’s homes that the Government contract, but that, as was acknowledged on Monday in your Lordships’ House, reflects a substantial and welcome reduction in the number of young people in custody overall in recent years.

The current arrangement is that the Secretary of State may provide places in young offender institutions and secure training centres; the Bill seeks to give him the power also to provide secure colleges. In addition, he has the ability to enter into contracts for the provision of youth detention accommodation in secure children’s homes. Amendment 107 would change this by giving the Secretary of State the power to provide secure children’s homes directly. The power to provide these homes rests with local authorities, not the Secretary of State, and we think it right that this should remain the position. Secure children’s homes are created by different legislation with the purpose of ensuring that there is provision for children whose welfare needs are so acute that a court decides they must be accommodated securely. Meeting the needs of this particular group of children is the important distinction between secure children’s homes and other forms of custodial provision.

The Secretary of State has a duty to ensure that there are sufficient places in youth detention accommodation for young people remanded in or sentenced to custody, and in discharging this duty he continues to contract places in secure children’s homes for those young people who require them. We think that that is the right arrangement, rather than the Secretary of State providing secure children’s homes, which are intended to serve a greater purpose than simply accommodating convicted or remanded young people.

I recognise the concern about the future of secure children’s homes and we will no doubt come back to that when we consider the substantial group of amendments that follows this debate. The Government are clear that there continues to be a place for them in the youth custodial estate, but we consider that the position is adequately catered for by the current arrangements. Therefore, I hope that the noble Lord will be prepared to withdraw his amendment.

Lord Beecham (Labour)

My Lords, as I hinted when moving the amendment, I shall not divide the House on this issue. However, the Minister overlooks a key element in the case that I put, which is that local authority budgets are extremely hard pressed and it will be

increasingly difficult for them to sustain the level of investment needed in this provision. Having said that, I shall not press the amendment, but I invite the Government, or perhaps the Minister, to talk to the Department for Education and the Department for Communities and Local Government about the financial implications of continuing provision in, I think, only nine local authority areas now, for which funding is under great pressure. I beg leave to withdraw the amendment.

Amendment 107 withdrawn.

Amendment 108

Moved by Lord Ramsbotham

108: Clause 32, page 31, line 2, at end insert—

“( ) No secure college may be established until comprehensive rules on the operation of secure colleges, including the use of force and the treatment of young persons with mental or physical health needs, have been made under section 52(2ZA).”

Lord Ramsbotham (Crossbench)

My Lords, I shall speak also to Amendments 111 and 121.

Last Thursday, the noble Baroness, Lady Tyler, initiated a debate to take note of Her Majesty’s Government’s social justice strategy in which I quoted the words of the Secretary of State for Work and Pensions, Iain Duncan Smith, who, in launching the strategy in 2012, said that social policy could not be conducted in discrete parts, with different parts of government working on discrete issues in isolation. A strategy had to have a fundamental vision and driving ethos, without which it would be narrow, reactive and unworkable. As a result, a Cabinet committee has apparently been set up to ensure that all government departments drive forward the aims of the strategy. I say “apparently”, because I can find no evidence that it has passed judgment on the proposal in respect of a secure college that is the subject of my amendments.

Mr Duncan Smith listed five principles of the strategy: a focus on prevention and early intervention; concentration on recovery and independence, not maintenance; promoting work as the most effective route out of poverty; most effective solutions being designed and delivered at local level; and intervention providing a fair deal for the taxpayer. He also listed a number of key indicators of success or failure, of which number 3 is a reduction in the number of young offenders who go on to reoffend.

On 11 March this year, I tabled a sunrise amendment similar to Amendment 108, asking that implementation of the Secretary of State for Justice’s proposals for probation reform, which appeared to be being rushed through before they had been properly thought through, be conditional on the proposals being laid before and approved by both Houses of Parliament. The Minister, as befitting an advocate of his distinction, bravely defended the Government’s position, convincing the House that contract management of transparent reforms, which were not being rushed, was secure. As the Minister knows, all is not currently well with the now delayed reforms for a variety of reasons, many of which were raised in this House and of which I could list a number but do not have time to do so.

Yet again, Parliament is being asked by the Secretary of State for Justice to rubber-stamp a rushed and un-thought-through discrete proposal whose intent I and many others support but whose details remain shrouded in mystery. This time, he also appears to be in defiance of the Government’s social justice strategy. I hope that he noted the almost total opposition to his proposal by anyone who has any knowledge of the practicalities of dealing with young offenders and how they respond to youth custody, expressed in a letter to the Daily Telegraph signed by 29 such people last Monday. I understand that some of them were summoned to a meeting with Ministers last night, it being made abundantly clear to the five who were able to attend that the Government were not prepared to give one inch to their concerns.

On the one hand, we have a Secretary of State with no experience of the management of young offenders claiming that he can improve the dreadful track record of the current system, on which I reported adversely many times as Chief Inspector of Prisons, by providing young offenders with better opportunities, particularly in education, at less cost because of the economies of scale on a large site which is a young offender institution by another name. On the other hand, we have experienced experts saying that his proposals are bad for children, bad for justice, and bad for the taxpayer. Both cannot be right.

Noble Lords will no doubt remember that in “Henry IV, Part Two”, as Henry IV lies dying with the crown beside him on his pillow, Henry IV takes and tries it on in an adjoining room, being berated by his father with the words:

“Thy wish was father, Harry, to the thought”.

In this case, I feel that “wing and prayer” is more appropriate than “thought”, because, far from having a coherent and costed plan, which bidders are expected to deliver for a stated and realistic fee, the Secretary of State is hoping that inexperienced providers will come up with cost-saving innovations that experienced ones, both private and public, have tried and failed to find over many years. The winning bid, in a large institution, rejected as impractical by the rest of the world, will then be adopted as secure college policy. No business would dare to operate like that, or it would very soon be out of business.

We have already had deep discussion of this in Committee, which I do not intend to repeat. However, I shall repeat, and ask the House to reflect on, some statements that have been made by the Minister and others since then. There is an added urgency to my Amendments 111 and 118, which seek that further development of the secure college proposal should be put on hold until the draft of the secure college rules instrument have been laid before and approved by both Houses of Parliament. Only last Thursday, the Secretary of State, in launching a consultation on the rules for his pet secure college project, which closes on 27 November, announced that he intended the Bill to receive Royal Assent before the end of the year, two months before the Government are required by statute to publish the consultation response. In other words, he appears hell-bent on bulldozing through proposals, which will be binding on successive Governments for

the next 10 years, without parliamentary approval and before the election. What is extraordinary is that, with presumed assent only a few weeks away, he says in the consultation document that no decisions have yet been made about who will be accommodated in the secure college.

For heaven’s sake, how can you possibly make or cost any realistic plans, if you do not know for whom you are making them? This smacks to me of contempt of Parliament, which will, quite rightly, be held to blame by the public, if something that it has approved fails to provide, or proves to cost more than forecast, which this proposal undoubtedly will. Bearing in mind that it will be held to blame, Parliament has not only a right but a duty on its own behalf and that of the taxpayer to ask the Secretary of State for proof of how he can deliver or justify the following claims and statements, before vast sums of money are committed, over 10 years, against all the evidence and advice that has been given to him. He has said that secure colleges are,

“a new form of youth detention accommodation with innovative education provision at its core which will equip young offenders with the skills, qualifications and self-discipline they need to turn away from crime”.

How do you do self-discipline? It has also been stated that,

“secure colleges must deliver a full and quality curriculum that motivates and challenges all young people”.—[ Official Report , 21/7/14; col. 1034.]

There is no argument at all with the intent but there is a question mark over the practicality. It has been stated:

“The Government’s vision is that young people will receive a full day of education and training, rehabilitative intervention and enrichment activity, with sufficient flexibility to respond to the individual needs of young people”,

and that,

“secure colleges … will foster a culture of educational development and provide enhanced rehabilitation services while also achieving savings”.—[ Official Report , 23/7/14; col. 1187.]

You do not deliver all those activities without people, and people cost money. Another statement claims:

“It is the Government’s view that setting out information about individual training courses and the standard to be reached in respect of such courses in secondary legislation is not appropriate.”—[Official Report, 21/7/14; col. 1036.]

Why on earth not?

“We are confident that the operating cost of the pathfinder will be lower than £100,000 per year, but the exact cost will be determined by competition”.

Surely the exact cost is determined by the provision and what you want.

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

I have to say that I found that last statement really awful.

At the other end of the educational ability spectrum, is there any indication that at last the Ministry of Justice will accept the offer of masterclasses for the few very bright inmates, provided by Tomorrow’s Achievers, about which there has been a deafening silence since they were first offered in 1999?

Regarding the use of restraint, I note that the comprehensive list of conditions listed by the noble Lord, Lord Marks, in Amendment 120A, specifically, and thankfully, excludes any mention of “good order and discipline”, which anyway is banned by the ruling of the Supreme Court. My Amendment 121 is in accord with the recommendation of the Joint Committee on Human Rights, which I recommend as being both simple and clear.

I know that the Secretary of State does not put the interests of staff as high on his list as educational outcomes, but I could not disagree with him more. As countless governors and staff of YOIs and other places of detention know only too well, their selection, training and support is the most crucial factor in any establishment. What is interesting to me is that all the most successful establishments, such as those run by Diagrama in Spain, which I described in Committee, and Orchard Lodge, the secure children’s home containing children with severe mental problems that when run by Southwark Council presented limited use of seclusion by staff whose average length of service was 11 years, staff must know, and be trained and regularly assessed in, any skills that they are allowed to use.

When I met the Minister for Prisons recently, I reminded him that the special hospitals and others, including the police, had rejected Prison Service restraint training because its techniques were not suitable for either patients or children. I hope that the National Health Service will be consulted over this and staff left in no doubt as to what is appropriate and when, as soldiers were in Northern Ireland with the yellow card for opening fire.

I could go on and on but I will not. I am asking the House whether it is satisfied that the persuasive generalisations offered by the Government are backed up by sufficient evidence to allow it to agree that the Secretary of State for Justice may proceed with his expensive, uncosted and unproven assertions, and that he can revolutionise one part of the youth justice system—namely, the custody of 320 of the most damaged, vulnerable and challenging young offenders—at less cost than that for which they are now confined, in defiance of all the known facts about dealing with and caring for these young people. Or does the House think, like me, that this proposal should not necessarily be cancelled but should be parked so that it can be examined in the context of improving the whole youth justice system against all other necessary improvements, including the question of diversion, work in the community and the all-important transferring back into the community? The Secretary of State appears to be unwilling to commission the research that would, for example, give him a set of criteria against which he could judge individual bids to deliver a special contract, but I thought that parliamentary scrutiny was what parliamentary democracy was all about. In that spirit, and in appealing to all the parents, grandparents, uncles and aunts on the political Benches, I beg to move.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, my Amendments 120A and 120B in this group both concern the use of force in secure colleges. Amendment 120B would delete paragraph 10 of Schedule 6 which provides—I say iniquitously—that:

“If authorised to do so by secure college rules, a secure college custody officer may use reasonable force … in carrying out functions”,

which include ensuring good order and discipline on the part of young offenders in custody and attending to their well-being. Amendment 120A would introduce restrictions on the use of force which accord with good practice, with the civilised treatment of young persons in custody and with the European Convention on Human Rights. Furthermore, my amendment accords very closely with the principles set out in the Government’s consultation paper published last week on the proposed secure college rules.

The authorisation of the use of force for the purpose of ensuring good order and discipline—said in the consultation paper to be clarified or modified by the proposed secure college rules—has been the subject of a judgment against the Government in the Court of Appeal in the case of C v Secretary of State for Justice 2008 concerning secure training centres. The clear view of the Joint Committee on Human Rights in relation to the Bill is that provisions authorising the use of force for the purpose of ensuring good order and discipline should be deleted. Those words can go without affecting the implementation of proposals for the sensible and modified use of force, suggested in the consultation paper. What is proposed is not a clarification but a departure—and if it is a departure, good order and discipline should disappear from the legislation altogether.

It is not right for the Government to say that merely because the use of force is authorised by the statute, as circumscribed by the rules, it would be appropriate for the legislation to authorise force for the purpose of enforcing good order and discipline. I believe that the correct conditions for the use of force should be plain in the Bill. There is no reason for not limiting the authorisation in the Bill to accord with what is appropriate. There should be no chance of any misunderstanding or misconception of what is and is not authorised and no internal inconsistency, apparent or real, between the primary and secondary legislation. The Joint Committee on Human Rights considered the Government’s case that there was a distinction to be drawn between the requirements for the Bill and those for the rules—and it rejected it.

On a practical note, as the noble Lord, Lord Ramsbotham, pointed out, the Government’s consultation paper on the secure college rules has only just been released. The Government’s response to the consultation cannot possibly come before Royal Assent for the Bill. That means that unless the Bill is clear about the restrictions that should be imposed on the use of force, the secondary legislation may not properly reflect the will of Parliament, even allowing for the affirmative resolution procedure being applicable to the rules—if it is.

My amendment would make the position clear. The first three purposes for the use of force are uncontroversial. They are to prevent injury to the young person concerned, to prevent injury to others and to prevent serious damage to property. The limitations on the use of force, as contained in the second to fifth conditions of my amendment, are also uncontroversial and in accordance with best practice. They are that force must be used as

a last resort only, that the force authorised must be the minimum necessary to achieve its purpose, that it must be applied for the minimum duration necessary to achieve that purpose and that the techniques used should be in accordance with an approved system of restraint. Furthermore, it is important that all those authorised to use force should be properly trained in its application and in techniques of minimum restraint.

However, since Committee, and in the light of the publication of the consultation paper, I have been convinced by the two so-called “scenarios” set out in the consultation paper that there may be a need for force to be authorised also to maintain a safe and stable environment, subject to extra conditions. The first of the two scenarios is where an abusive young person in a secure college disrupts a visiting session for all those in the visiting room, including other detainees, their visitors and families, and simply will not move. The second is where an aggressive young person needs to be moved to protect another young person who is threatened by him, where that other young person is at unusual risk from that aggression. In both these cases I can see that some force may be required to move a detained young person. However, such force as may used in those circumstances—that is, to promote a secure and safe environment—should be limited to circumstances in which a young person poses a risk to the present safety or welfare of another person and should never involve pain-inducing techniques.

These restrictions represent the Government’s view, clearly expressed without reservation in the consultation paper. I simply cannot see why they should not be expressed in the primary legislation, particularly when the secondary legislation will come so late in the day.

The issue of the use of force in secure colleges is serious. We should not forget that in April 2004 at Rainsbrook secure training centre, 15 year-old Gareth Myatt was asphyxiated while being restrained in an approved hold; nor that in August 2004, 14 year-old Adam Rickwood committed suicide at Hassockfield secure training centre after being subject to the so-called “nose distraction technique”. Accordingly, I ask the Government to reconsider their position, to limit the use of force in the Bill in accordance with the principles set out in their consultation paper, and to accept either my amendments or those of the noble Lord, Lord Ramsbotham.

Baroness Finlay of Llandaff (Crossbench)

My Lords, I have added my name to three amendments in this group, and will focus particularly on some of the health aspects. The question of how these colleges will be run becomes critical.

In his response to the previous amendment, the Minister said that there would be assessment of those with acute needs and vulnerabilities. I suggest that the health needs are far greater than has previously been estimated. I declare an interest as president of the BMA. Our report Young Lives Behind Bars is due to be published on 4 November. I have had extensive discussions with my successor, Al Aynsley-Green, who was previously the Children’s Commissioner and who looked at length into the management of offending children. He was particularly struck by the smaller

units in Spain, and was clearly persuaded that moving children away from their original area of domicile, to which they would eventually return, was potentially quite harmful because of the disruption to the support for their health and well-being.

Children in the offending group generally have a much higher incidence of serious problems. About 12% are known to have been bereaved of a parent or sibling; that is far higher than the incidence among children in the general population. About 60% have significant speech, language and learning difficulties, 20% to 30% are learning disabled and up to 50% have learning difficulties. Put simply, about one in four has an IQ estimated to be below 70 and over a third have a diagnosed mental health disorder. Over a quarter view drugs and alcohol as “essential” to their well-being.

When the House of Commons Justice Committee examined reports on acquired brain injury, which affects around 10% of the general population, it found that it typically affects between 50% and 80% of the offender population. A relatively small 2012 study, covering 179 male offenders, found that 60% reported some form of brain injury and 40% reported a loss of consciousness, which indicates probably quite severe brain injury.

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

Lord Carlile of Berriew (Liberal Democrat)

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

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

I am very concerned about the timetable which has been placed upon us. There is a consultation—to which the noble Lord, Lord Ramsbotham, in his eloquent moving of his amendments, referred—which is to end near the end of November, and the Government’s response will follow two months thereafter. That is

way outside the timetable placed on us for this Bill, including today’s debates. It is illogical and quite unnecessary to press a timetable that attempts to force us to reach important decisions today when those decisions might be informed by the consultation and the Government’s response to it. It is not unknown—indeed, it is common in your Lordships’ House—for the consultation process on any important issue to lead to amendment of the primary draft legislation placed before your Lordships. I respectfully entreat my noble friend to look at the consultation as a genuine process, not merely as a symbolic process to confirm what the Government would wish to have decided here today.

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

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

Earl of Listowel (Crossbench)

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

There are, however, in these provisions shortcomings that have already been described. My concern is particularly about the risks that young people may experience in such a setting. In a recent visit to a

young offender institution—I shall try not to repeat what I said in Committee, but I will repeat this point—I was given the example of 15 young people attacking two. When I first visited a YOI 15 years ago, there might have been three or four people attacking one or two, but with the gang culture now, it is normal—and a great source of worry and consideration to the governor and the prison officers—to have members of different gangs in prison, and to have to think about how to stop large numbers of boys beating up small numbers of boys. That is one aspect of risk.

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

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

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

The former Children’s Commissioner, Professor Aynsley-Green, repeatedly produced reports on this setting and very gradually the environment was ameliorated considerably over time. But how much better it would have been if consideration had been given well beforehand to what the needs of children and families kept in a secure setting would be—infants,

eight year-olds, 16 year-olds with their mothers—and whether a prison would be suitable accommodation for them. This issue needs to be given the closest attention and most careful thought because we are talking about some of the most vulnerable young people in our society.

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

Lord Deben (Conservative)

My Lords, in my maiden speech I said that one of the things I wanted to concentrate on in this House was social justice. We are talking about what for me is one of the very central issues of social justice—that is, how you deal with those who are most troublesome to society. You can measure a society by how it deals with those who cause it most difficulty.

As a Member of Parliament, I found the visits to the young offender institution in my former constituency among the most troubling that I ever made because you met young men who had never had a chance of any kind whatever in their lives and you recognised that they could so easily have been your own sons. You also recognised how privileged your own children were, not in terms of money or any of the things which are foolishly trotted out by egalitarians, but just by the fact that they were loved.

That leads me to be very worried about any measures which are hurriedly introduced because I think this is a very difficult issue. It is very hard to get these things right. I come back to personal experience. If you bring up children in a loving and secure environment, it is still very hard to get these things right. It is very hard indeed and we all get it wrong. So often we say to ourselves, if we are honest, “If only I’d spent a bit more time thinking about that and taken a bit more advice about it, I might not have made such a blooming mess of it”.

That is in the context of a continuing relationship in a loving background. We are not dealing with that but with something much more difficult, simply because none of the things that you normally rely on is there. That is why this House has an important role to play, which is to say to the Government, “Look, you’ve done remarkably well”. That is one of the reasons why I am proud to support them because they have done

remarkably well. They have also shown themselves to care about this section of the population whereas previous Governments of all persuasions have not shown much indication that they were very interested.

The Government have also stood out against the more raucous elements of the press, which of course find it easy to attack this particularly deprived and vulnerable section of the population because we are talking about people who have done dreadful things. Let us not kid ourselves; we are not talking about people who have been somehow misused by the justice system but about people who, for reasons that we can find upsetting, have done inexcusable things. This is huge problem for a Government, and this Government have behaved enormously well.

I therefore want to say a simple thing to my noble friend. He has heard speeches from people who are not among the flag-waving antagonists he sometimes faces but from those who genuinely want him and the Government to get this right. The feeling is seemingly universal that we would like him to give time to get this right and enable this House to do its proper job. We would do that job better if we had all the knowledge and experience from the consultation that is about to take place. This might therefore be an opportunity for him to say, “Perhaps I can go away, think about this again and find it possible to give this matter time”, which is, after all, available. I do not quite understand why anyone does not want to give it. I hope that the Minister will take away the genuine feeling of this House, which will help him do something very important.

Bishop of Rochester (Bishop)

My Lords, I hope that I am not a flag-waving antagonist but I support the pleas made by the last few noble Lords who have spoken, asking for some thoughtfulness, reflection and time to be taken over this. I am grateful for the consultation about the rules but we need time to take that consultation seriously and reflect upon it.

We have heard, not least from the noble Earl, about the profile of the likely pupils in the establishment that we are talking about. It is admirable that we want to put education first and foremost in establishing the shape of this provision. However, we know it is vital that this particular group of potential pupils has the best possible educational experience provided for them because they have lacked so much in their pasts. Noble Lords will have different views as to the model for the best possible educational experience. For some, it might be an establishment on the banks of the Thames near Windsor; for others, it may be some other kind of establishment. But whatever it is, there is a sense in which we as parliamentarians are cast in this matter in the role of prospective parents, for it is in our name that the young people who are to be the residents or inhabitants of this institution are going to find their way there. Like good parents, we will want to view the prospectus. I remember the year I spent some time ago trailing around secondary schools in Birmingham seeking the right one for my daughter, and poring for many hours over the prospectus of various places.

The prospectus may tell us some things about the physical environment—we have seen some plans and intentions and there have been some discussions about

that—but of much more importance is what will happen each day and what the experience will be. Of course, in this instance that will be for 24 hours each day and for 365 or 366 days in the year. What will be the precise detail of the educational provision? How many staff will there be? What will be the skillset of the staff, and the mix of those skills? As has been referred to, what will be the discipline policy within this institution? What games will be played, and what other extracurricular activities will there be? As parents, one might also be concerned about issues such as the quality of the food which will be provided, and suchlike.

Of course, the prospectus brings us into the realm not only of the rules which we are now discussing, but also of the terms of the contract. As good parents, it is wise of us to want to see as much detail as possible in this instance before we sign up to send our children to this particular place of education. I join other noble Lords who have made a plea that we might take things gently, and that even at this stage we might be allowed to see as much detail as possible, both of the rules and of the potential contract which is the subject of another amendment, before final decisions are made. We may then be able to exercise our quasi-parental responsibilities in this matter with confidence and assurance.

Baroness Farrington of Ribbleton (Labour)

My Lords, 20 years ago last week I made my maiden speech in a debate on the care and protection of people in custody. This was in the context of my work at the time, which involved visiting police cells as a member of the police authority. Following that, I spoke in a debate initiated by Lord Longford. It took place late at night and there were few in the Chamber; at the time I was a coward about speaking in front of a full House. Lord Longford asked me if there was anything else to do with the penal system which I would like to debate. I have great respect for much of what was done by Lord Longford. However, when I said that I wanted to talk about protecting people who were in custody, particularly young people, from emotional, physical or sexual abuse, he said, “We do not debate the problems in American prisons in this Chamber.” I could have agreed with Lord Longford on many things, but not on that.

My experience as a councillor, and as a visitor to schools and to units with young people, taught me that protecting people who are in custody, particularly the young, is an incredibly difficult task. We have heard that many have suffered violence, abuse and sexual or psychological abuse, and those of us who work with these young people know that on many occasions their behaviour plays that out.

I plead with the Minister to take this provision back. Having been in his position, I know that there can be difficulties if members of the Government in the other place are not here and are not listening to us. There is a message that could go back. The Government could come forward with their own proposals rather than risk defeat here. That would have the good will of the House and of the organisations which have written in. Most of all, it would allow those of us who are concerned about it to be as sure as we possibly can be that the quality, experience, framework and situation of the young people in this circumstance will be as advantageous as possible.

Baroness Howarth of Breckland (Crossbench)

My Lords, I had not intended to speak in this debate, which is unusual bearing in mind the subject matter. I am on my feet for two reasons. I have sat in at consultations and I do not think that we will get a change from the Government: the Minister has already had it made it clear to him that this is the way in which the Government wish to move forward. I am on my feet because, despite the difficulties that I recognise he has, I should like him to do all in his power to take the messages back to the Government on behalf of the young people who will face this regime.

I understand the good intentions of the Ministers who have visited some pretty appalling institutions. We have heard from others about the kind of regimes where young people are incarcerated. That does not make this right. We could do even better with £89 million, particularly for this group of children. I find it difficult to disagree with the right reverend Prelate, for whom I have a particular affection. As I have said in many speeches, education cannot always be the centre of a unit for young people who are so highly disturbed. Those working in the field have made it absolutely clear in all that they have said that it would take those six months to settle someone with serious mental health difficulties who has never known consistent care, probably has a brain injury that has not been diagnosed and probably has a series of physical illnesses that will have to be addressed.

I do not doubt for a moment that we need to change the regime and that it is possible to do it. I simply do not think that the answer to the problem is a huge building of 300-plus children. At the moment it will include girls and young children but I deeply hope that when we get to that debate we can at least make some movement on that. The Minister will have access to all the research and advice about small units near facilities where parents, however difficult, can visit. I am not naive. I have run places like this in my time and I have been a director of social services. I have seen these young people and worked with their families. These young people make improvement if they are not anxious about what is going on at home. However much bravado difficult young men show, they are usually very anxious about what is happening at home and in their local community.

Therefore, I ask the Minister to think about giving time. Some of us are not totally against an alternative that might have a number of high-quality facilities in one place in which some of these youngsters might respond. It is simply that this is too fast, as many noble Lords have said. We need much more thought. People have visited really poor, barred institutions; the noble Earl, Lord Listowel, talked about going through bars. In the consultation, the Minister said that he wanted a centre to be light and airy, and a good place to be, with play facilities and health facilities. We all would applaud that. But this would be too big and the culture would be difficult. If the Government have not thought through the staffing and the leadership, the proposal is doomed to failure before it starts. This Government have talked time and again about leadership, about skills and about good, thought-through approaches. We have to have and understand those before this can go through.

I am disappointed that there are so few noble Lords present. I do not doubt that, if there is a vote with a Whip, the amendment will be lost. It would be a travesty for children and young people were that to be so. All we need is time to get this right for the future. We will repent at leisure if we act in haste on this.

Baroness Linklater of Butterstone (Liberal Democrat)

My Lords, this amendment contains two aspects which cause concern. One is the use of force—a matter of grave concern when dealing with young offenders—and the other is secure colleges, a new idea from the Government that fills us with despair and gloom.

This is one of the most sensitive and difficult areas of all offender management. The secure college rules sanction the use of “reasonable force” in three circumstances, and proposes a fourth. These are: to prevent injury to the young person or others; to prevent escape from custody; to prevent damage to property; and, lastly and worryingly, to maintain good order and disciple—otherwise known as GOAD.

Noble Lords have listed their own versions of such circumstances, including the last resort of,

“maintaining a safe and stable environment”.—[ Official Report , 21/07/14; col.1046]

A comprehensive list was given by my noble friend Lord Marks, with such conditions as minimum force, minimum duration, minimum necessary and no techniques involving pain. All are agreed that force must not be used as a punishment, although it will most likely feel and seem a punishment to any young person who has the misfortune to experience it. It is highly undesirable and unjustifiable in almost every imaginable case that young people should experience this.

The acid test of really good management of young people who are characterised as being among the most damaged, the most difficult and often the most disturbed in their age group is that situations should not be allowed to reach such a point where force becomes an issue at all. Adolescent units in psychiatric hospitals present parallel situations, just as they often do in secure prisons, and control depends on very skilled management by well trained professionals. I have seen such examples in both situations—in prisons and in hospitals—where professionals do not need to have recourse to restraint because violent situations are anticipated and pre-empted. Once the possibility of force is accepted, it will be used.

The GOAD sanction seems the most concerning, partly because of the type of language used, including what is described as MMPR—managing and minimising physical restraint according to approved restraint techniques. GOAD—good order and discipline—is much broader, open to subjective interpretation and likely to be most widely used for that very reason. It is extremely worrying.

We do know that the JCHR recommended that only the first three circumstances of the college rules should apply, and that good order and discipline should not be included. It said categorically that secure children’s homes do not use force to maintain a safe and secure

environment, and they have the same clientele. However, the MoJ has announced that it intends to allow the use of “reasonable force” to,

“maintain good order and discipline”—

which begs the question, of course, of what is “reasonable” where a young person is perceived to be posing a risk to,

“maintaining a safe and stable environment”.

The criteria are going to be so important.

Also, the MoJ does not consider it “necessary or appropriate” to set out in the Bill the circumstances in which custody officers are authorised to use force in secure colleges, and states categorically that,

“the Bill is clear ... a custody officer must be permitted by the rules to use force”.

This must be clarified further if the Government are to have some idea of the sort of regime they are sanctioning and for there to be confidence and trust in how these difficult and vulnerable children are being managed.

The JCHR’s most recent report on the Bill concluded that:

“We are concerned by the vagueness of the Government’s references to ‘maintaining a stable environment’ and protecting the ‘welfare’ of the child and others as permissible justifications for the use of force. The law is clear that the use of force on children … can never be justified for the purposes of good order and discipline”.

So there is a clear and currently unresolved difference of view, with each side apparently absolutely clear on the rightness of its position. However, what is clear is that the children and young people being dealt with here are recognised as being particularly troubled and vulnerable. If force is used on them, it confirms to them that violence is acceptable because that is what is being used by the authorities. Different standards and criteria are being used when it is deemed fit. I sincerely hope that such double standards will be rejected out of hand by the Government.

Lord Beecham (Labour)

My Lords, the Government’s plans for the largest children’s prison in Europe are,

“bad for children, bad for justice and bad for the taxpayer”.

Those are not my words but, as the noble Lord, Lord Ramsbotham, pointed out, those of 29 signatories to a letter in the Daily Telegraph, which of course is affectionately known as the house journal of the Conservative Party. One would therefore expect the Government to pay particular attention to views expressed in it and by it. The signatories include the chief executives of leading children’s charities, the president of the Royal College of Psychiatrists and the chair of the Association of Youth Offending Team Managers, among other experts in the field. Today, the Daily Telegraph contains an article by Mary Riddell supporting the position of those who wrote that letter.

No one would argue with the intention to improve the education and thereby the life chances of young offenders, but the Government’s proposals for a secure college housing one-third of young offenders in custody bear all the hallmarks of yet another rush to misjudgment. With a site in Leicestershire planned for a young offender institution going begging, the Lord Chancellor’s latest notion was to engage a building firm to design a college housing boys and girls aged 12 to 17 and then

to start a tendering process which would lead to potential operators effectively writing their own job description, with precious little information as to costs or the precise way in which the institution would be managed. As we have heard, last week the Government published their consultation on the rules that will govern the establishment, containing such revolutionary and transformative suggestions that inmates should be entitled to at least one hot shower a day. But, as the noble Lord, Lord Ramsbotham, has pointed out, the consultation will be concluded after the legislation is enacted, so Parliament will have no opportunity to consider the outcome or the Government’s response. That is a clear case of premature legislation for which no medical treatment can be prescribed.

Amendment 108 is designed to ensure proper scrutiny of this critically important part of the process. The amendment refers to the,

“mental or physical health needs”,

of young persons in secure colleges. As we have been informed by the noble Baroness, Lady Finlay, a report by the BMA on the detention of children is due to be published after the Bill has left this House. Given the seriousness of the issue, the novelty and controversial nature of the plans and the lack of detail as to how the college will operate in practice in terms of who will operate it and at what cost, why are the Government in such an unseemly hurry?

There are, as we have heard, serious problems about the proposals. Among the most worrying, is the notion of housing all 44 girls now in custody in England in one place, necessarily, potentially far from their homes, something which will also be true of many male inmates, and also remote from the local authority services with which they should be in contact. There will be no overnight residential visitor accommodation on the site.

The prospect of having 12 to 15 year-old boys in the same institution as 15 to 17 year-olds is also a matter of grave concern, even though they will apparently be housed in separate units on the site. The former vice-chairman of the Youth Justice Board expressed his misgivings about security with a high concentration of the latter age group. Today, the Chief Inspector of Prisons is reported as expressing concerns about a more concentrated mix of vulnerable, challenging and sometimes very violent boys, in the light of the fact that the number of children going into care is decreasing. It is becoming a more concentrated and a more problematic group. The older boys will potentially be in the same institution as these younger children.

Amendments 109 in my name and 117A in the name of the noble Lord, Lord Marks, in the next group, seek to deal with this matter. In Committee, the Minister indicated that no final decision had been taken on these sensitive issues, but, of course, that simply underlines the undesirability of giving the Secretary of State carte blanche to determine them without parliamentary scrutiny. It is also entirely unclear how the educational component, which is the ostensible justification for the scheme, will work, given that the population will be constantly changing. In Committee, the Minister said that,

“a sufficient bank of time in a secure college would be intended, with an individually tailored plan”.—[ Official Report , 21/7/14; col. 1035.]

He failed to reply to my questions as to what sort of time we were talking about and who determined what sort of time would be ultimately allocated.

We are a country that criminalises children at a much younger age than most. We appear reluctant to inquire into, let alone learn from, the experience of other countries such as Finland, Spain—where, as the noble Lord, Lord Ramsbotham, pointed out, Diagrama runs the best children’s custody centres in Europe—or even the US, where the Missouri model, with facilities containing no more than 50 beds, is becoming widely adopted. Has the Government even examined these or other models? Yet here the Minister described the measure in the Bill as providing a,

“framework for the creation of secure colleges so that the Government can trial a new approach to youth custody”.—[ Official Report , 23/7/14; col. 1185.]

If they have not examined other people’s trials, then the notion of a trial here is somewhat limited. In any event, it is an odd sort of trial that encompasses a third of the total potential number of relevant young offenders and one that perhaps threatens the viability of existing facilities, including secure children’s homes, run, as we heard earlier, by local authorities.

The proposals contained in the Bill have attracted very little support. They embody the Government’s usual attachment to outsourcing. They are being pushed through with scant regard to the proper processes of parliamentary scrutiny. I entirely echo the words of the noble Lord, Lord Deben, in strongly suggesting that the Government would be wise to extend the period and allow such scrutiny to take place.

Amendment 111 would require secure college rules to be approved, should the plans go ahead. Amendment 111A in my name would ensure that no second college could be provided without a proper assessment of the first, should that go ahead. I urge the House to support these amendments in order to ensure that proper consideration is given to these and other issues before launching what is, at present, an ill-defined and untested project. In addition, Amendments 120A, 120B, 121 and 122 deal with the use of force. The Joint Committee on Human Rights has expressed its views forcefully, as have a wide range of organisations. The amendment in my name and in the name of the noble Lord, Lord Ramsbotham, embodies the committee’s formulation.

In Committee, I pointed out that Schedule 5 to the Bill contains a wide power under paragraph 10 for a custody officer to use “reasonable force” not only to,

“ensure good order and discipline”,

but to prevent escape and,

“to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts”—

unspecified—and,

“to attend to their well-being”,

under paragraphs 8(c), 8(a), 8(b) and 8(d) respectively. In addition, paragraph 9 extends the possible application of force to the searching of detainees and anyone who is in the college or seeking entry. Those are very far-reaching powers, on which the Minister did not specifically comment. They will be entrusted to people whose training, qualifications and supervision we know nothing about.

The position is utterly reprehensible and I hope that, having listened to Members on all sides of your Lordships’ House, the Government will take time to think again. I repeat: we are all entirely with the Government on wishing to make the best provision in educational and other terms for these damaged youngsters, but we are heading down a road with no clear indication of the destination or, indeed, how we will reach it. The Government should take the time, look at other people’s experience, engage with those most involved with the service and with these young people, and come back with some revised proposals.

Lord Faulks (Conservative)

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments and to all those in the Chamber and beyond who have engaged with and helped to shape our proposals for secure colleges. It has been said during the debate that our proposals are rushed and ill thought out, and that there has been a failure to engage.

We have made considerable efforts to engage with a wide range of stakeholders and experts right the way through, from the gestation of this idea to bringing legislation before Parliament and developing plans for a pathfinder secure college. In our Transforming Youth Custody consultation, published in February 2013, the Government engaged with a wide range of organisations in the education, custody and voluntary sectors. Uniquely, we asked them to submit outline proposals for how a secure college might tackle the problems of poor education and reoffending outcomes. What I think there is complete agreement on in your Lordships’ House is that there is far too high an instance of reoffending by young offenders and that education is insufficiently catered for within the secure youth estate.

Those responses directly informed the Government’s response to the consultation, published in January this year. After the Bill was introduced in this House, I hosted an open event in July to outline our proposals, to share our latest plans for the design of the pathfinder secure college—the clue is in the name: pathfinder—and to listen to the views of those with interests and expertise in this area. Peers were assisted by iPads that gave a design and indication of the precise configuration of the secure college and how the various parts would work together. It proved a fruitful exercise, I believe, and the discussion that day with Peers led to substantial changes to our design for the pathfinder secure college.

Following that meeting, we secured additional land for the site, increasing its size by two acres and extending the range of sporting facilities and outdoor space. We also reconfigured the layout of the site to ensure that groups of the more vulnerable young offenders, whom we had already planned to accommodate separately, could access education and health facilities via a different route from older children at the site and would have separate sporting facilities. I was pleased to share those revised plans at yet another open meeting with Peers last week.

Noble Lords will also be aware that, following my commitment in Committee, last week the Government published a public consultation on our plans for secure

college rules. It is a substantial document with a considerable amount of detail. I hope that those noble Lords who have felt it appropriate to comment on the inadequacy of the consultation will at least take the trouble to read carefully this consultation and realise the amount of detail that has been provided in order to come to the right final conclusion as to the rules.

The secure college rules set out the proposed policies which will inform those rules, and in respect of the use of force—clearly a matter of considerable importance to the House—set out draft indicative rules to facilitate greater scrutiny of our proposals. Noble Lords will also be aware that the Government have brought forward an amendment to make rules authorising the use of force subject to the affirmative, rather than the negative, procedure.

Throughout the process, Ministers have written to and met with a wide range of stakeholders to keep them apprised of our plans. Only yesterday the Prisons Minister, Andrew Selous, met a range of children’s charities and groups with an interest in youth justice. We also have been working closely with NHS England, the Department for Education and experts in education and custodial provision to test our designs for the secure college pathfinder. Our revised plans are now publicly available and are being scrutinised by Blaby District Council as part of the planning application for the pathfinder.

I hope, therefore, that noble Lords will recognise that considerable efforts have been gone into and opportunities provided for the views of others to inform our thinking. I have to say I was very disappointed to hear the noble Lord, Lord Ramsbotham, whom the House of course greatly respects on this area, suggest in Committee that, notwithstanding our engagement, it was,

“both unreasonable and irresponsible of the Government to expect Parliament to rubber-stamp it until it knows more”.—[ Official Report , 23/7/14; col. 1173]

The Ministry of Justice and my officials have worked extremely hard to provide information about secure colleges. There were also lengthy debates in the House of Commons. I hope noble Lords have had a chance to see them. I have read all of them. A great deal of detail was provided at that stage and then in your Lordships’ House in the lengthy Committee stage. The Government have attempted to give answers to all the various points that have been given to them. It is, therefore, with great disappointment, that we are accused of being in contempt of Parliament.

I will now turn to the amendments. They cover the use of force, secure college rules and the powers of the Secretary of State to contract out the running of secure colleges. I will start by addressing the amendment on the use of force, as this is relevant to the government amendment in respect of the secure college rules. Amendment 121 seeks to restrict the circumstances in which a custody officer may be authorised to use force in a secure college. I am aware that a similar amendment was recommended in the recent report on the Bill by the Joint Committee on Human Rights. While the Government share the view that force must only ever be used as a last resort, and that only the minimum force required should be used, we believe it is right that force be available in a wider range of circumstances than the amendment permits.

In addition to preventing harm, we believe that force must also be available to prevent escape, to prevent damage to property and for the purpose of maintaining good order and discipline. I recognise that it is the final category which has attracted most debate. During a constructive debate in Committee, I set out the Government’s view that custody officers in secure colleges should be able to use force for the purpose of maintaining good order and discipline, but that this use would be subject to stringent controls.

In our consultation document on our plans for secure college rules, we have gone into a great deal of detail about our approach to the use of force. I am glad that my noble friend Lord Marks made reference to the instances given on page 23 of that document of particular examples which he, I think, accepted were instances where there would, in exceptional circumstances, have to be force used in circumstances where one would not normally want it to be used.

We have clarified that force, in these circumstances, may be used only where a young person poses a risk to maintaining a safe and stable environment and where there is also a risk to the safety or welfare of the young person against whom the restraint is used or that of another young person. We have set out examples in the document of the types of circumstances in which we believe the use of force for these purposes would be justified. We are clear that force can never be used as a punishment.

The consultation document makes clear our position that the use of force for good order and discipline would be authorised only to the extent that it was strictly necessary and proportionate; that only authorised restraint techniques could be applied; that the use of pain-inducing techniques for reasons of maintaining good order and discipline will be prohibited; that only the minimum restraint necessary for the shortest possible time must be used; that the young person’s dignity and physical integrity must be respected at all times; and that the best interests of the young person against whom the force is used must be a primary consideration. We have also set out safeguards and procedures to be followed before, during and after any use of restraint for maintaining a safe and stable environment.

The Government recognise the sensitivity and importance of provisions relating to the use of force with young people. That is why we are consulting publicly and in great detail, and we will consider the responses that we receive. However, for the reasons that I have set out, we do not agree with the restrictions that the amendment would place on the circumstances in which force could be used in secure colleges.

As a further commitment to ensuring scrutiny of our proposals on the use of force, we are bringing forward an amendment to the process for approving secure college rules. In its third report of the Session, the Delegated Powers and Regulatory Reform Committee recommended that if the Bill is to enable secure college rules to authorise the use of force for the purpose of ensuring good order and discipline, then such rules should, to the extent that they authorise, be subject to the affirmative procedure. We have accepted that recommendation and brought forward Amendment 122.

This amendment will make the entire first set of secure college rules subject to the affirmative procedure, as they will contain provisions authorising the use of force. This will give Parliament additional oversight of the secure college rules, although I cannot agree to Amendment 111, which would require the rules always to be subject to the affirmative procedure—a requirement which does not apply to prison or young offender institution rules, for example.

Lord Beecham (Labour)

I am grateful to the Minister for giving way. I ascribed the wrong number to the schedule to which I referred earlier. It is Schedule 6 which is about the use of force. The Minister has referred to a number of instances which are certainly in that schedule, but he did not refer to paragraph 8(b), which talks about the use of force being permissible,

“to prevent, or detect and report on, the commission or attempted commission by them”—

that is, prisoners—

“of other unlawful acts”.

That seems an extremely wide definition. Nor did the Minister refer to paragraph 9, which relates to use of force in connection with searches.

Lord Faulks (Conservative)

I could go through go through the entire section, which is very lengthy, and deal with all the various aspects seriatim, but I am not sure that that would be a particularly useful process Report given that I am sure that all those who have been listening to this debate will have had the chance to see the entire detail of the relevant section of the secure college rules. I think that I have summarised fairly the Government’s approach in the rules. I also referred to those two specific examples to which reference was made by the noble Lord, Lord Marks. There have been discussions at the various meetings that we have had. So I would rather not be tied down to specific examples of when force should be used. We believe that the structure is there. We are of course listening to the consultation carefully and we encourage all those who are concerned, of whom there are many in your Lordships’ House, to take part in that consultation to assist us further in arriving at a satisfactory position, which I am sure we will be able to do.

The publication of the Government’s consultation will also reassure the noble Lords and noble Baroness who tabled Amendment 108 that we will certainly make secure college rules before such an institution opens. These rules will be essential to ensuring that young people are detained safely and securely in these colleges, and that they are educated and rehabilitated effectively. However, I strongly believe that this does not need to be placed in the Bill.

It is in the context of creating secure college rules that I turn to Amendments 120A and 120B, which would set out in primary legislation the conditions governing the authorisation of the use of force. I welcome the noble Lord’s amendment, which adopts much of the approach taken in the consultation document. However, I believe that this is a case for the rules rather than for primary legislation. I have provided assurances on how they will come into effect.

I am grateful for the amendment tabled by the noble Lord, which relates to the evaluation of the secure college pathfinder. The amendment seeks to ensure that before a second secure college is established, an evaluation is first conducted and a report laid before each House. This is, in a sense, what lies at the heart of this debate: many noble Lords have said, “This is all being rushed, you should wait and ask the Government to go away and think again”.

At present we are committing only to establish one secure college in Leicestershire. This facility will be a pathfinder intended to demonstrate the success of this new approach to educating and rehabilitating young offenders. I entirely agree that the first secure college must be rigorously evaluated. I assure noble Lords that that is exactly what the Government intend. It is important to emphasise that the secure college pathfinder that will open in 2017 will be subject to a thorough evaluation to assess implementation, operation and delivery against key aims and objectives, including the educational attainment and reoffending outcomes of young people detained there. The findings of this evaluation will directly inform decisions about the future of secure colleges and the youth custodial estate more generally.

The noble Baroness, Lady Finlay, addressed the House about concerns in relation to the mental health in particular of the proposed population of secure colleges. Of course, this will be a matter for NHS England, as I am sure she is aware, which has obligations to those in a secure college, in the same way that it has obligations to all members of the population. There is, as she may have seen in the design of the pathfinder college, a particular health unit placed strategically in the middle of the design. This will be the best way of delivering healthcare, uniquely tailored to those individuals.

I do not for a moment underestimate the challenges that these young people can present, and there may need to be a considerable amount of input in terms of medical help, advice and treatment. Although it is described as a very large establishment, a maximum of 320 is not large when compared with secondary schools, for example. There are some advantages in providing a larger number: there can be a better quality, and perhaps continuity, of medical attention. Of course, all this will be subject, as with the education provision, to inspections—inspections by Ofsted and Her Majesty’s Inspectorate of Prisons, supporting the Care Quality Commission reports, which will all be published. The expert oversight will provide an additional view of the performance of this new establishment. So while I entirely agree that it must be properly evaluated to gauge its success, I do not consider that writing such a requirement is appropriate. I will therefore in due course ask the noble Lord not to press his amendment.

Finally, and less contentiously I apprehend, the Government are bringing forward minor amendments consequential to our earlier amendments to extend the secure college provisions to Wales. The purpose of Amendments 114 to 117 is to ensure that the text of the Welsh language version of the Social Services and Well-being (Wales) Act 2014 is consistent with the English language version as amended by Schedule 5.

This is necessary because the two instruments are legally separate. I can assure the House that the effect of the amendments is unchanged.

I conclude by saying that the current system of looking after young people in custody is not satisfactory. Noble Lords have been generous enough to acknowledge that this coalition Government have achieved much by reducing the number of those who are in the secure youth estate. Those who remain clearly present challenges. Often they have not had any significant education in the past. They will have—I hope that the focus of the college will indicate this—a real opportunity for education in a significant block. They may not be there for a very long period, and it is important that the education provider—this is something that we are entirely focused upon—is sufficiently agile to give them sufficient benefit by way of education, in terms of often quite basic education provision, so that they can reap a long-term benefit. Noble Lords will be well aware that this particular cohort often has had very little continuity in its education in the past.

All this will be provided in a bright, barless environment. There will be at least one visit a week. As the secure college rules show, we are endeavouring to use increased technology to enable communication with families while the young people are at the secure college. They will have enough space to be moved around effectively but nevertheless have some independence.

This is a really good idea. Let us not be fearful of innovation. This provides an opportunity. Caution is understandable, but seeking to delay what may be to the real advantage of young people would be making a mistake.

Lord Ramsbotham (Crossbench)

My Lords, I am grateful to the Minister for his careful, thoughtful and wide-ranging response. I know that I speak for everyone in the House in saying that we agree with him both that we need to reduce the dreadful record of reoffending in our young offender establishments and that what is presently provided is not satisfactory and has not been for a long time.

I am very glad that the noble Lord, Lord McNally, is in his place; I would have expected the Minister to have paid tribute to the Youth Justice Board, which has been principally responsible for the reduction of the numbers, and in fact has been a remarkable example of good leadership and carefully researched innovation ever since it was formed.

Lord Faulks (Conservative)

I am very grateful to the noble Lord; he is quite right to reproach me for not giving credit to my noble friend Lord McNally, and I am very happy to do so.

Lord Ramsbotham (Crossbench)

Having said that and witnessed the Minister’s customary graciousness, I agree with him that there has been an enormous amount of engagement and effort by officials and others to engage with people, but that engagement has been not about if the secure college will be established but when. We therefore still know nothing about what is to be done, who is to do it and how much it is to cost. I have quoted a number of times in this House the two definitions of the word “affordability”: first, can you

afford it, and, secondly, can you afford to give up what you have to give up in order to afford it? Bearing in mind the current situation, financial and otherwise, I wonder whether it is worth spending the amount of money on this unproven and uncosted pilot when it could be diverted now to doing better by all the young people about whom we have been talking.

I accept that we are talking about a pathfinder and that the affirmative procedure for the rules is being proposed. However, the affirmative procedure will come only after the Bill has become law. Everyone knows that an affirmative procedure that comes after that has no clout anywhere—and certainly not with this.

I thank all noble Lords who have contributed to this debate for the wide and thoughtful contributions that they made. The one that perhaps struck me most was from the noble Lord, Lord Deben, who reflected on the fact that we all know and love people of the same age group as those whom we are talking about, whose interests are currently not well served by the country. Therefore, the country must have a very clear say in what happens to them.

I understand that the secure college pilot is to be rigorously evaluated and will open in 2017. I will return to NHS England and healthcare provision in the next group because I do not think we have had full coverage of it. My feeling is that the Government appear hell-bent on pushing this through, but I do not think that it is the right approach. I am not proposing to divide the House on this amendment, but I give notice that I will do so on Amendment 111, which specifically mentions the approval by Parliament of the rules before they are adopted. I beg leave to withdraw this amendment.

Amendment 108 withdrawn.

Amendment 109

Moved by Lord Beecham

109: Clause 32, page 31, line 2, at end insert—

“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”

Lord Beecham (Labour)

My Lords, I have effectively spoken to this amendment in dealing with the issue of girls and boys being housed together. I will not therefore take the time of the House for very long but will just report that today the Women’s Resource Centre and Women’s Breakout have issued a statement concerning this matter. It says:

“Government plans to allay the … safeguarding concerns … by fencing-off girls and vulnerable children are inadequate. Girls will still be held alongside boys in the separated area, so safeguarding risks remain. The proposed fenced-off area will be a ‘prison within a prison’, likely to be reminiscent of the claustrophobic … units in Young Offenders Institutions, which have … been closed down … Girls in custody are an immensely vulnerable group. A Prison Inspectorate survey found that 61% of girls in young offender institutions had been in local authority care, compared to 33% of boys. A Youth Justice Board report found that one in three girls had experience of sexual abuse, and one in five had experienced violence in the home. There are so few girls in custody that they can easily be accommodated in the smaller, and far more appropriate, Secure Children’s Homes. There is no need to hold them in a secure college”.

I adopt that view and invite the House to do so. I beg to move.

Lord Ramsbotham (Crossbench)

My Lords, I will speak both to this amendment and Amendment 110. I know that I am up against a very strong three-line government Whip and, unlike the Minister, I am not a skilled advocate nor have I anything to do with party politics. If I were to be granted one wish before our deliberations, it would be that Part 2 should be removed completely from the party-political arena because it is not a matter of left or right politics—it concerns the future of some of the most damaged and vulnerable children in our society, which is a matter of national not electoral importance. Imitation being the sincerest form of flattery I can do no better in relation to this group of amendments and the next than to slightly adapt the words of the noble Lord, Lord Carlile of Berriew—of whose seminal review on the use of restraint and seclusion on detained children I was privileged to be a member—about an earlier amendment: that this is an issue on which all parents and grandparents, uncles and aunts, sitting on the political Benches should be entitled to and should exercise their consciences, reflecting that they are deciding on the treatment of children of the same age as those that they know and love; that is a very important responsibility.

I make no apology for quoting, yet again, the words of the then 36 year-old Home Secretary Winston Churchill, and ask the House whether it could imagine him making the proposal that is now before us. He said:

“We must not forget that when every material improvement has been effected in prisons, when the temperature has been rightly adjusted, when the proper food to maintain health and strength has been given, when the doctors, chaplains, and prison visitors have come and gone, the convict stands deprived of everything that a free man calls life. We must not forget that all these improvements, which are sometimes salves to our consciences, do not change that position. The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country … and proof of the living virtue in it”.—[Official Report, Commons, 20/7/1910; col. 1354].

In this case, for “convict” and “man”, read “child”. Stripped to its basics, the proposed secure college at Glen Parva is a cost-saving exercise based on presumed economies of scale on a site which had previous planning permission for a young offender institution. All the other assertions, beginning with education, healthcare and safety being at the heart of the design, are what Winston Churchill recognised as “salves to our consciences” dressed up as generalisations with which no one could possibly disagree. Of course no one could disagree with any intention to improve education, healthcare and safety from what I used all too often to find as Chief Inspector of Prisons, and which persists today largely because no one has been made responsible and accountable for making improvements.

However, when you look below these generalisations you find nothing of substance—no evidence of the hard thinking-through of the details of what such children need, or of whether it is possible that inexperienced private contractors can do more with less than that which experienced people from both public and private sectors have been trying desperately to do over the years, or of conformity on the very

cramped site with the square metre standards laid down by the Education Funding Agency. The despair of good people trying to do more with inadequate resources was evident in a long article about suicide in the

Guardian

on Saturday, quoting the governor of Glen Parva, bursting into tears when apologising to the mother of a seriously mentally ill young offender who had taken his own life, with the words:

“I’m trying, I’m really trying”.

Then there are the words of the governor at the children’s YOI at Werrington when I and my inspectors arrived for an unannounced inspection: “Thank God you’ve come”.

That says to me that it is not one part of the youth justice system that is in urgent need of reform. It is the whole system, as I have said before, beginning with diversion to ensure that those with mental health problems do not end up in custody, then improving community alternatives, then custody, and then transition from custody back into the community—ensuring that all parts are able to work together and are not prevented from doing so.

I am particularly grateful to the noble Baroness, Lady Finlay, for mentioning healthcare. I am grateful, too, that the British Medical Association has allowed the comprehensive report Young Lives Behind Bars to be used in this debate. Quite rightly, the BMA is very concerned indeed about the well of psychiatric morbidity that these children present, and absolutely right to insist that what is done is appropriate for their needs. It is not appropriate merely to pass the buck to NHS England. I am quite certain that the adolescent mental health authorities in Leicestershire will not thank the Government for parking 320 seriously disturbed young children on their site, in addition to all the other things that they have to do, particularly with Glen Parva YOI next door.

I simply do not understand the argument about why children need to go there. I salute the noble Lord, Lord Marks, for his comprehensive Amendment 117B, not least because it highlights so many aspects of good and proven practice and expert advice, not to say common sense, with which the secure college seems to be in wilful defiance. There are currently only 48 children under 15 in custody, and not many of those are from the proposed catchment area for the secure college. There are only 45 girls in custody, of whom only four live in the catchment area. Bearing in mind that the Government have said that they will not dispense with all the secure children’s homes, which being smaller are much more suitable for children under 15, why do any children need to go to the secure college anyway? Their presence will make life more complicated for both education and custody providers, and there are enough places for them in the secure system anyway. When I saw in the recently issued consultation document Plans for Secure College Rules that no decisions had yet been taken about who would be accommodated in the secure college pathfinder at Glen Parva, I hoped that I might be pushing at a door that had not yet been finally closed. I hope that the Minister will be able to reassure both this House and those who are bidding for the contract that this unnecessary complication will be removed.

I will conclude with a statement that I received from the head teacher of the Ian Mikardo High School, which received enormous praise both in the press and from Ofsted and which has received three outstanding reports. The fascinating thing about that school is that it has to deal with children 100% of whom have special educational and other needs. I contrast the record of the young offender institutions not just with the Ian Mikardo High School but with the Clayfields secure children’s home, which has a reconviction rate of 18% and a remarkable record of successful education and training.

The head teacher of the Ian Mikardo High School, Claire Lillis, who was formerly head of education and deputy governor at the Medway Secure Training Centre, wrote to me to express her extreme concern at the Justice Secretary’s plans to enable staff to forcibly restrain teenagers at the proposed children’s prison. However, she added that she was,

“equally appalled that the Department of Justice should regard locking up 320 vulnerable young people in a ‘secure college’ as a route to them having a positive and fulfilling future”.

All her 40 pupils, as I said, have statements of special educational need for social, emotional and behavioural difficulties, and she says that they,

“would be heading for prison at a young age were it not for this provision”.

In addition to their special educational and further complex needs, 97% were school non-attenders, 94% are known to child and adolescent mental health services, 12% are on the child protection register, and 31% are children in need. That is a worse record than is forecast for the secure college.

I will read three more quotes from her letter; first:

“Thanks to dealing with conflict through talking, developing healthy relationships and ensuring that staff do not use restraint, attendance of students, initially surprised by this approach, but now feeling safe and secure, is 90% plus, 96% going on to college, training or paid work”;

secondly:

“There is something inherently wrong about using force for compliance. The Ministry of Justice is only reinforcing young people’s view that the world is a dangerous and scary place, in which they are regarded as unworthy and untrustworthy”;

and finally:

“In my experience children who are regarded as hardened criminals are invariably fragile and frightened, and I question whether it is appropriate to use adult prison companies for this highly specialised work. If children are so at risk that they need to be in a secure environment, then we need to support them using specialist staff working in a therapeutic, caring, nurturing way. Otherwise we will turn out children who have lost their dignity and their identity and who are more angry, more detached and more criminally intent”.

I think noble Lords might like to reflect on those words and some of the key facts about the Ian Mikardo High School. There are 10 teachers and 12 teaching assistants for the 40 boys, plus a parent engagement officer and two psychotherapists, one for the boys and one for the staff. Has the Secretary of State considered the strain on staff who would have to look after 320 difficult, challenged and vulnerable children in one confined space? Each place at the Ian Mikardo school costs about £38,000 a year; that is, of course, minus custody costs. I believe that the principal reason for its success is that the head teacher,

armed with her experience of looking after similar children in the criminal justice system, planned, staffed and costed her reforms in great detail—including the banning of restraint, which she has pursued consistently—with the help of carefully selected and properly supported staff. I regret that I see no evidence that anything like that—which I think is absolutely essential—applies to the plans for the proposed secure college.

Lord Carlile of Berriew (Liberal Democrat)

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

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

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

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

I want to say something about Amendment 110, and particularly health needs. Your Lordships do not need my next remark to be repeated, although I will repeat it merely for the record—namely, that almost all the children in an institution like this will have at least one identifiable mental health condition and many of them will have multiple mental health conditions. Those mental health conditions will have been exacerbated by poor parental care, possible sexual abuse and violence at home. I regret that I have observed that the first time many young people have somewhere comfortable and secure to sit down is when they are in custody—in other words, they have multiple serious needs, many of which have to be met through child and adolescent mental health services. There will be self-harmers among them, particularly, I fear, among the girls. This is well documented in relation to teenage girls. Self-harm is extremely difficult to manage. Taking a girl through a secure tunnel or walkway to spend a little time in a health centre, however good it may be, and then walking her back under the same conditions to her accommodation just will not do. It is not the way in which child and adolescent mental health services work.

The Bethlem Hospital has provision for teenage mentally ill people. By the way, it has a school so it is interesting as a comparison. If my noble friend were to visit that hospital, he would find that the children in question are moved into a single room in which they are watched constantly. When they start to self-harm a little less, they are watched every five minutes and so on. It is a very complex process. I have heard no assurance that there is provision for girls, or any other children in this institution, to be managed under the medical model followed in the best child and adolescent mental health services. I repeat that this just will not do. It is inadequate in the absence of evidence of nearby residential mental health facilities with education provision to which these young people with these awful conditions can be moved. They are not lost causes. I can tell my noble friend that young people do recover from self-harming. I have seen plenty of examples of that, including one closely connected to myself. They recover from these conditions—they may recover permanently—and may lead completely useful, normal and, indeed, very profitable lives. However, they must be provided with the facilities to enable them to do so.

Frankly, those who have looked at the plans of the proposed site, with its shoehorning of people on to a property owned by the Government, as I mentioned, despair that any real thought has been given to the merits of these cases. Despite the effort that has been made—I am truly grateful to my noble friend and other Ministers for keeping us well informed—I cannot support a provision like this, which I confidently predict will be visited in an official capacity in a few years’ time by the noble Lord, Lord Ramsbotham, or somebody with his knowledge and experience, who will condemn this college as failing the most vulnerable in the age group concerned.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I have two amendments in this group—Amendments 117A and 117B. I should have said at the outset today that the amendments in my name are all supported by

my noble friends Lady Linklater, Lady Harris and Lord Carlile, who has just spoken. My noble friends would have added their names to the amendments had Monday not been such a busy day.

My first amendment is to the same effect as Amendment 109 in the names of the noble Lords, Lord Ramsbotham and Lord Beecham, and would prevent girls and younger boys—that is, those under 15—being held in secure colleges. The proposal for the first secure college at Glen Parva, just east of Leicester, is, as my noble friend made clear, a pathfinder proposal. It is intended to be experimental. I suggest that it cannot be right to experiment in this way with the lives of girls and young boys in custody. Widespread and deeply felt concerns are unanimously expressed in the many specialist briefings we have received, notably from the Standing Committee for Youth Justice, the Howard League for Penal Reform, the Children’s Rights Alliance for England and the British Medical Association, to whose impending report the noble Baroness, Lady Finlay, referred earlier. All oppose holding girls and younger boys in the same institutions as older boys.

The numbers alone are extremely telling. As we all are now aware, there are only 1,100 offenders in custody in the secure estate. We have made it clear many times how far we regard this as a great achievement of this Government in the field of youth justice—a point which the noble Earl, Lord Listowel, made earlier today. However, only about 45 of those young offenders are girls and, although the relevant numbers may vary, I think that fewer than 40 are under 15.

In the consultation paper on the proposed secure college rules, the Government have made it clear that they propose that there should be a rule to ensure separate accommodation for girls and boys. As my noble friend Lord Carlile just mentioned, the Government have also made it clear that the plans for Glen Parva disclose an intention that girls and younger boys should be housed in separate blocks, segregated from the main body of the secure college by a fence. However, they will share with the older boys the main education and health block at the site.

At the meeting the other day which my noble friend the Minister helpfully held with Peers to discuss secure colleges, a point was made that officials had seen co-education working well within the secure estate—boys and girls working together on, I think, decoration. That may be. However, the risks posed of occasional but very serious incidents occurring in such circumstances are severe. Furthermore, I do not believe that the Government have taken fully into account the inevitable feelings of intimidation and isolation likely to be felt by a small number of girls in an institution containing a large number of older boys. They will be a tiny minority at best, and the same goes for vulnerable younger boys. Nor should one forget that a large proportion of the girls have been victims of sexual abuse by older men. It is entirely wrong, I suggest, to force through this mixed education experiment. I believe that the experiment itself is unacceptable in this regard.

Places are available in secure children’s homes for this very small group of children. My noble friend and the noble Lord, Lord Beecham, speaking for the Opposition, were in rare accord in that both spoke well of secure

children’s homes and of their future. The Government assure us that they intend to keep open secure children’s homes. They are small and provide a nurturing environment. Many provide a highly successful educational content. During the Recess I visited Clayfields House, a secure children’s home in Nottinghamshire. That home has secured a remarkable success with children in avoiding reconviction upon release. At Clayfields they provide not only education, achieving truly remarkable exam results in very short periods of time, but also effective vocational training, arranged by a local private sector employer, in motor mechanics and construction trades. It is a facility shared by the secure children’s home with local schools and others.

I fully appreciate that secure children’s homes are expensive, but we are talking here about housing a very small number of children in an appropriate environment. We are talking about turning around the lives of a group of extremely damaged children. If we do not spend now the resources necessary to ensure that they are held in suitable surroundings and given the opportunities afforded by a period of personal attention and tightly focused education, helping them towards gaining employment later, then we face the far greater financial burden of considerable extra expenditure in the future as they spend their lives in and out of the criminal justice system and dependent on the public purse for social services and welfare benefits.

My second amendment in this group is similar in terms to one that I tabled in Committee, which was kindly mentioned with approval by the noble Lord, Lord Ramsbotham. This amendment sets out the principles that should underlie the foundation of any secure educational establishment. I say again that we are completely in support of the Government’s intention to introduce more and better education for young offenders in custody. The present educational services in Feltham and other young offender institutions are inadequate and ineffective. The lack of education and training for the world of work is one reason for the appallingly high reoffending rates for young people. However, we should not lose sight of the fact that young offenders who are in custody are, for the most part, deeply troubled young people. Very often, their contact with the education system prior to their being sentenced has been limited at best.

The evidence convinces me that the best way in which to provide education for young offenders and improve their chances of rehabilitation is to provide establishments that are small enough to guarantee individual attention from staff; are easy to visit for their families; are designed to assist rather than impede continuity of supervision following release; and offer education and other facilities that are sufficiently focused and supportive to ensure that the different needs of individual offenders with different problems, and who are sentenced and due to be released at different times, can be suitably met.

In this regard, I have added to my Committee stage amendment the need to ensure adequate mental and physical healthcare facilities for young offenders. The need for such extra attention to these issues has been highlighted by the BMA briefing on its impending report on these issues, and my noble friend Lord Carlile has spoken about that. The BMA points out,

tellingly, that the state takes over responsibility for these offenders precisely at the point when their needs are most acute. The BMA’s support for the principles of these amendments is only one area of support among many. I again ask the Government to reconsider their proposals, to look at the principles advocated by all those who have done years of research upon this subject, to think again about the Glen Parva proposal and to reject the idea that girls and younger males under 15 should be held in detention in that institution.

Earl of Listowel (Crossbench)

My Lords, it seems wiser not to keep girls in this proposed new pathfinder institution, in part because, as I said in Committee, some of them will be pregnant, giving birth or just have given birth. If they are to be housed there in those conditions, the utmost consideration needs to be given to their needs because, as a society, we are becoming increasingly aware that the attachment that a mother makes to an infant is vital to that child’s later life. Indeed, I am sure that it is often because their mothers were in poverty, alcoholic and unable to form a bond with their child that these young women have followed this course in life. Whatever health provision is offered at the institution to these girls—these mothers—their perinatal needs should be considered.

My noble friend makes an extremely important point about access to psychotherapy for staff members. So often that can be seen as a luxury but, given the relationships that members of staff make with these troubled children, such access is the absolute key in getting the best behaviour from them and avoiding the use of force. If staff can build a good relationship with these troubled young people, force will not be necessary and can be avoided. Staff need expert support in thinking about these children and the relationships they form with them. I therefore thoroughly endorse my noble friend’s point.

Finally, the Children’s Commissioner has produced important reports about the sexual exploitation of girls by gangs. Thought needs to be given to the implication for girls who are placed in establishments where large numbers of gang members may be around. I am thinking of the case of a 14 year-old girl who was raped by a gang member, became pregnant and was very concerned to keep her anonymity. It should be possible to keep girls’ anonymity so that a gang member cannot pass information back to another gang member and say, “The girl you knew is now pregnant”, and so on. That can be a difficult scenario.

Baroness Finlay of Llandaff (Crossbench)

My Lords, the hour is getting late and I am aware that we are hoping to divide the House on another amendment. I have spoken about the antecedents and health problems related to some of these young people’s behaviour. However, I remind the House that there are big differences between the girls and boys. More than half the girls have witnessed domestic violence, compared to about a quarter of the boys; 35% of the girls have substance-abusing mothers, compared to about 9% of the boys; and 18% of the girls have substance-abusing fathers, compared to 5% of the boys. When you take the very small number of girls who are extremely disturbed into an environment and confine them near a large

number of boys who are also very disturbed, it is almost like putting them in a pressure cooker. I hope that the importance of not having a minority of girls on this site has been taken on board by the Government.

I cannot stress enough the importance of having high-quality clinical staff available, too. This is not just about staffing the posts but having very highly trained people who want to live in that area, be there with a sufficient support infrastructure and have ongoing training and education—as well as succession planning so that one is not left with low staffing levels that could create a crisis.

Baroness Howarth of Breckland (Crossbench)

My Lords, most of the arguments about girls on this site have been clearly made, so I want to make a quite different point rather than repeat the ones that have been made.

I have looked carefully at both sets of plans for this site. Were one not to accommodate girls and young boys at the far end of the site, the flexibility one would have—maybe for the pathfinder to succeed—would be far greater than one would have with the complication, described by my colleagues throughout this debate, of confining girls who will be claustrophobic, adding to their difficulties. The young boys will simply learn from being on that site all the bravado that comes with it. If one wanted this proposal to succeed at all, one could instead have more space and better capacity provision. The Minister knows I am not favour of this proposal but I know that it is the wish of those who have visited some of the other establishments to do something better. As I said, one could do even better by using that part of the site to make sure that the pathfinder succeeds.

Lord Faulks (Conservative)

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

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

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

deliver a distinct regime that caters to these more vulnerable boys and girls. In our consultation on our plans, we have also proposed a rule requiring girls to be accommodated separately from boys. I referred to that consultation earlier this afternoon.

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

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

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

Lord Carlile of Berriew (Liberal Democrat)

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

Lord Faulks (Conservative)

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

Lord Carlile of Berriew (Liberal Democrat)

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

Lord Faulks (Conservative)

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

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

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

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

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

and young people in secure settings which were developed by the royal medical colleges at the invitation of the Youth Justice Board.

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

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

In our consultation we have proposed rules on the assessment and safeguarding of young people; on a minimum of 30 hours of educational activities for all young people each week; on access to healthcare services commissioned by NHS England; on staff training that is approved by the Secretary of State, and on an entitlement for all young people to receive at least one visit a week. It is worth noting that the Youth Justice Board operates an assisted visits scheme providing financial support to the families and carers of young people in custody. We have proposed a rule setting out the purpose and ethos of secure colleges. We stress that the welfare and safeguarding of young people are vital considerations, which is why we proposed that the requirements and protections I have outlined will be set out in secondary legislation.

Other considerations raised by Amendment 117B will be for contracts to address. We are clear, for example, that the education provision in secure colleges must respond to the regular departure and arrival of young people who may be on remand or serving short sentences. Therefore, roll-on roll-off courses designed quickly to develop skills and raise attainment, as are delivered in the current estate, must be available. However, while the average length of stay in youth custody may be only 85 days, this figure is skewed by the remand population. In fact, around 50% of the population in custody at any time will be serving sentences of at least six months in custody, which is the equivalent of two school terms and therefore provides a real opportunity to make a significant impact on a young person’s life.

I cannot agree to the requirement in Amendment 117B relating to the size of secure colleges. I have heard the arguments that smaller establishments are better environments for young people, and they have been rehearsed today. But there remains no evidence demonstrating that such places achieve better reoffending outcomes or that they present better value for money. While I know that much excellent work is done in secure children’s homes—I repeat what I said earlier in that regard—it is still sadly the case that 72% of young people detained in these establishments reoffend within a year and cost more than £210,000 a place each year. I should perhaps remind the party opposite that placing all young people in such accommodation would cost around an additional £100 million.

Lord Ramsbotham (Crossbench)

Will the noble Lord exclude Clayfields from that, where the reconviction rate is 18% and costs are £185,000 a year?

Lord Faulks (Conservative)

I am perfectly happy to accept the costs from the noble Lord. As regards the offending rate, one needs to look over a long period. He tells me those rates but I have not had a chance to see those specific rates or for how long a period. However, I am sure that there are variations within the secure college estate. It would cost around £100 million each year to do what seems to be suggested, which is not a viable solution. It is, as we know, easy to forget the deficit, but this Government do not do so.

Although the secure college pathfinder will have a capacity of 320, the site is composed of seven distinct accommodation buildings, with some broken down into smaller living units. Young people can be accommodated in distinct groups, a sense of community can be fostered in each, and the younger and more vulnerable groups can be kept separately if that is considered appropriate. Our plans demonstrate that big does not mean imposing and impersonal. The size will enable a breadth of services and opportunities to be offered.

It is a consequence of the welcome and significant reduction in the number of young people in custody that there are fewer custodial establishments and that some young people inevitably will be detained further from home. This is not a new problem and, for the reasons I have outlined, a network of small, local facilities is not, sadly, a viable alternative. However, distance from home remains one of the factors taken into account by the Youth Justice Board when placing young people in custody. I am sure that that will be very much a factor. Furthermore, there will be visits as well as technology.

I recognise what lies behind these amendments. I acknowledge the very real concern of noble Lords about young people, whether they are under-15s, girls or more widely, but we genuinely believe that we have sufficient flexibility in the system. We do not think that these requirements should find themselves into law. I ask the noble Lord to withdraw his amendment.

Lord Beecham (Labour)

My Lords, I shall be brief. If the proposal goes ahead, which it might, we will end up with two groups of about 40 young people, boys and

girls, from all over the country, in one central location and in an establishment where the vast majority of young offenders, as we have heard from the chief inspector, will be extremely vulnerable and very difficult. The whole atmosphere of the place cannot be compartmentalised in the way in which the noble Lord describes. It is not a satisfactory outcome and I wish to test the opinion of the House.

Lord Ramsbotham (Crossbench)

I wish to test the opinion of the House.

Lord Ramsbotham (Crossbench)

My Lords, I will be brief because much of what I am going to say has already been said, particularly in relation to the criteria. I would like to raise two points. First, I am concerned about the criteria, about which we know nothing, relating to the selection of application for contractors. I remind the House that there used to be in the Ministry of Defence every year an exercise called “basket weaving”. The Secretary of State laid down precisely what was to be done, and then the Treasury produced the money. Then the staffs had to look at the money that had been provided and see whether it allowed the Secretary of State’s direction to be delivered. Invariably, there was not enough money, so people listed in different baskets what was essential to have to carry out the task, what would be desirable to have and what would be nice to have. Those three baskets were then presented to Ministers, who were invited to decide what should not be done because the funding was not available, or to go and ask for more money. That was the decision that they had to take.

The reason I tabled this amendment is that we do not know what it is that the Secretary of State is requiring the contractors to provide, not least in the provision of the specialist staff, whom many noble Lords have mentioned today in connection with looking after this group of younger people. Therefore, my reason for putting down the amendment was to encourage the Government to release these criteria so that we know, and the taxpayer then knows, and can therefore judge, what is actually missing when the contractor puts in their bid. We will not have any say over the bid, but it would be very interesting to know what parts of the original intention could not be provided for these young people because of funding.

My second point relates to a practicality of the delivery of the sort of thing that I know the Minister intends in the secure college. In 1966, the Army’s secondary school in Hohne, in Germany, was achieving remarkable results with children who came or left throughout the term, to and from schools almost anywhere in the world because of the movement of their fathers. When I asked the headmaster the secret of his success, he said that he ran a comprehensive school: every pupil was assessed for their ability in different subjects, and their daily programme was dictated by their ability: top form in maths, bottom in English and so on. When I told him that if that was comprehensive education, I was all for it, he warned me not to hold my breath because streaming by talent was frowned on in England. It worked, because motivated, compliant children got themselves to and from their programmed classes—a total impossibility both in security and in practical terms with the cohort that is likely to be in custody in a secure college. Has anyone thought through the practicalities of limited staff numbers trying to conduct 320 difficult, disruptive and damaged children with fragile motivation and questionable compliance to and from 30 hours of unspecified education, plus a myriad of other health and social care requirements on this cramped site?

I include that, first of all, as an example of what might be done with all of these children with different needs and problems, as to how to get them to go to where it is most appropriate; but also because I am concerned that this House has not yet had the criteria on which the judgment should be based as to which bid is going to be able to meet them. I strongly support the amendment in the name of the noble Lord, Lord Beecham, about limiting the contract to five, rather than 10, years because I believe that to tie future Governments for 10 years to this proposal—with all that has been said about it around the House today—is several years too long. I beg to move.

Lord Beecham (Labour)

My Lords, I support the amendment of the noble Lord, Lord Ramsbotham. My amendment is designed to avoid the situation that appears to be arising in relation to the awarding of contracts for the probation service. I do not know whether the Minister is in a position to confirm this or not, but it is said that the Government are deliberately proceeding with 10-year contracts for the outsourcing of that service, on the basis that, should a future Government decide to change the system, they would have, in effect, to pay up for the whole of the 10 years. In other words, it is really binding the hands of a future Government—in financial terms, if not necessarily in legal ones—in a way that is quite unacceptable. It would be quite wrong—perhaps, one could argue, even more wrong—to do so in this case, with a completely untried institution being set up. Whether or not that ultimately proves successful, in principle it would be entirely wrong. Five years is a perfectly adequate period within which to assess the merits of the proposal; that is, five years of operation, not just five years in chronological time, because the Minister has indicated that if the matter goes ahead, it will not be built until 2017. I hope that the Minister will accept both amendments, particularly the one in my name.

Lord Faulks (Conservative)

My Lords, I am grateful to both noble Lords who have spoken to these amendments relating to the contracting out of secure colleges. I recognise that at the heart of these amendments is an appetite to know more about the Government’s plans for the secure college pathfinder, which is to open in 2017, as the noble Lord, Lord Beecham, accurately said. Notwithstanding this understandable curiosity, I am concerned that the effect of these amendments would be to limit substantially the ability of the Secretary of State to secure both innovation and value for money from prospective operators of secure colleges.

The noble Lord, Lord Ramsbotham, quite rightly described some of the educational challenges that will exist in relation to this cohort of young people. Of course, they exist now, albeit in different custodial establishments. There is nothing new about the challenge; the question is how you meet the challenge.

Amendment 118 proposes that the selection criteria for secure college operators should be set out in regulations, and that these regulations should be debated and approved by both Houses of Parliament. Noble Lords are aware of our desire to invite innovation in the provision of services to educate and rehabilitate young offenders in secure colleges, and in our view this amendment would undermine that ambition.

Similarly, Amendment 119 proposes a statutory limit of five years on the life of a contract for the operation of a secure college. Again, this would constrain providers in their ability to deliver efficiencies and improved outcomes, potentially undermining the very goals secure colleges seek to achieve. Of course, the Government are ever mindful of expense and this limitation would run counter, we suggest, to the interests of obtaining a satisfactory contractual relationship. It is important to stress that no such constraints apply to the Secretary of State’s powers to commission any other form of custodial provision, and we do not believe that they are appropriate here.

Our intention is to launch a competition next year for an operator of the pathfinder secure college. We will set out our expectations of providers in an operating specification and we will inform bidders of the criteria against which they and their proposals will be evaluated. We will then enter into a period of dialogue with bidders. The dialogue process will be a critical phase of the competition as it will allow us to refine our specification in light of the types of innovation suggested by bidders. I do not want to repeat what is already in the consultation rules that noble Lords will have seen but noble Lords will be aware of what we seek to achieve in terms of blocks of education.

In some areas of secure college provision, such as those identified for inclusion in the rules, the Government will want to clearly specify their requirements; in others, however, we will want to create a degree of flexibility for the experience and expertise of bidders to propose new ways of delivering services and improving outcomes for young offenders. I am sure that all noble Lords would agree that we need to improve those existing outcomes. Requiring the criteria by which an operator will be selected to be set out in secondary legislation would, I fear, both delay and hamper the established processes for procuring services that meet the Government’s expectations.

I hope it reassures noble Lords that we are working closely with the Youth Justice Board as we plan for the opening of the pathfinder secure college in 2017. Its expertise in commissioning custodial services for young people will directly inform both the operating specification issued to the market and the criteria by which successful bidders are to be identified.

To answer the question that the noble Lord, Lord Ramsbotham, effectively posed—how will you assess the bids for the operation of the pathfinder secure college?—we will use a structured and objective evaluation process to identify the most economically advantageous tender. It will involve separate evaluation of the quality of the solutions and price; it will be conducted by a range of personnel with relevant experience—as I indicated, the YJB and the MoJ have extensive experience of objectively and robustly assessing operational service bids—and bids that fail to meet the prescribed minimum acceptable threshold level of the evaluation will be put aside and not considered further.

I understand why the noble Lord, Lord Ramsbotham, would seek more detail than I am giving him but I hope that by outlining the process, and by the words I have used to describe it, he will understand why the Government are unable to accept his amendment. I hope he is reassured about the process by which secure college operators will be selected and will feel able to withdraw his amendment.

Lord Ramsbotham (Crossbench)

My Lords, I am grateful to the Minister once again for the courtesy, care and attention he has paid to giving an answer, which, I must admit, was fuller and more reassuring than I had originally hoped.

I hope, however, that during this process between now and 2017 the same spirit of engagement between the Ministry of Justice, the Youth Justice Board and Members of both Houses will continue. As I am sure the Minister has detected, there is considerable interest, not just in the introduction of the secure college but in its method; we are particularly concerned about its ability to deal with these people.

The noble Lord mentioned the fact that staff move people around on sites but I am sure he reflects that very often the inertia in the day’s programme that prevents vast amounts of it being delivered is caused by trying to get people around a site and the problems that staff have in moving one lot while another lot have to stand fast, and so on. These are practicalities. If the complexity of the large site and keeping many groups separate is anything to go by, this is something that ought to be taken into account. Anyway, accepting the reassurances of the Minister, I withdraw the amendment.

Amendment 118 withdrawn.

Amendments 119 to 120B not moved.

Amendment 121

Moved by Lord Beecham

121: Schedule 6, page 97, line 28, leave out paragraph 10 and insert—

“10 Secure college rules may only authorise the use of reasonable force on children—

(a) as a last resort;

(b) for the purposes of preventing harm to the child or others; and

(c) to the extent that the minimum force necessary should be used.”

Lord Beecham (Labour)

I wish to test the opinion of the House.

Report (2nd Day) (Continued)

Earl of Listowel (Crossbench)

The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.

Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where

it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.

Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.

So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.

However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.

The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue at Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.

There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity: that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children

and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.

My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.

I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.

The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.

My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,

“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.

It cannot therefore be said to constitute an undue interference with open justice or press freedom.

We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.

I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the

Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.

The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?

To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, in this group I will speak only to Amendment 122AA standing in my name. This amendment deals with preserving the anonymity of children who are subject to a criminal investigation but who have not yet been charged with any offence. The lack of anonymity for such children is an anomaly in the law as they are protected from being named once they are charged, as the noble Earl, Lord Listowel, has just explained.

This anomaly was to be addressed by Section 44 of the Youth Justice and Criminal Evidence Act 1999, which would apply to reporting in respect of persons under 18 after a criminal investigation into an alleged offence has begun. However, that section has not been brought into force. My amendment would amend the section to add its application to sound and television broadcasts or public electronic communications networks and would bring it into force on the passing of the Bill.

The undesirability of the present position was graphically illustrated when the Sun published the name of the boy later to be accused of murdering the Leeds schoolteacher Ann Maguire before he was charged. It is, of course, now illegal to name him as he is a party to court proceedings. It is obvious that if a child is named pre-charge, that undermines any anonymity later afforded by court proceedings.

In Committee, my noble friend the Minister said that,

“in the light of the significant changes to press self-regulation recently introduced by the Government … Both the industry and the Government agree that independent self-regulation is the way forward. … We should therefore give this new approach a chance to succeed”.—[ Official Report , 23/7/14; col. 1198.]

I regret that I do not share my noble friend’s optimism as to the present effectiveness of self-regulation. Furthermore, even if press self-regulation may work for newspapers in future, it has no effect on preventing pre-charge publication in the social media.

This is, of course, a probing amendment. It has been agreed that Section 44 will not in fact be brought into force unless it is debated by both Houses and subject to affirmative resolution. Nevertheless, I would ask my noble friend to make clear in this debate whether he agrees that pre-charge anonymity ought to be guaranteed—and, if so, will he please say how he proposes that it should be achieved?

Baroness Howe of Idlicote (Crossbench)

My Lords, I will speak to Amendments 122A and 139. Amendment 122A and government Amendment 139 both aim to address the problem of what happens to the anonymity granted to children in court proceedings when these children turn 18. This is obviously a pressing issue thanks to the case of JC & RT, as we have already heard, in which Lord Justice Leveson ruled that Section 39 reporting restrictions expire when a child reaches 18. I gather that that case is subject to appeal.

The government amendment seeks to create a new lifelong anonymity order, but this cannot be granted to defendants: so these new orders allow a court to provide child victims and witnesses with anonymity post-18, but not child defendants. As far as I am aware, this means that the only way for a child defendant to be granted post-18 anonymity would be for them to seek a civil injunction. Unless they have such an injunction, the press, or individuals on social media, will automatically have the right to identify any child defendant as soon as they reach 18.

I understand that the Government’s position is that they do not want all child defendants automatically to be granted post-18 anonymity, but will there not be some cases in which the court should have the ability to impose lasting reporting restrictions? What about cases where a child is found not guilty of an offence? What about cases where vigilantism is a real possibility? Amendment 122A would allow defendants to be subject to the new lifelong anonymity orders and would provide courts with the means to impose restrictions if they choose. This may be the most sensible way forward.

Under Amendment 139, child victims and witnesses will have to show that their evidence or co-operation would be diminished if they were to be granted post-18 anonymity. Under the current law, victims and witnesses do not have to meet any tests to be granted the same anonymity. Like my noble friend Lord Listowel, I am concerned that this test may deter victims and witnesses. I am also concerned about what will happen when proceedings have already concluded and the child victim or witness has now reached 18 years of age. Presumably, anyone over the age of 18 who has ever been a child victim or witness and who does not want to be identified will have to go back to court and apply for one of the new orders that the Government propose. Surely it is unlikely that most people will know that they can do this. Even if they did, would legal aid be available to assist them?

This is a serious issue if victims and witnesses in historic cases start to be named in the press without their prior knowledge. This is likely to deter potential victims and witnesses from coming forward, as well as being potentially harmful to those identified. Like my noble friend Lord Listowel, I hope that the Government will take these concerns into consideration and, in particular, come back with a rather more acceptable amendment at Third Reading.

Lord Carlile of Berriew (Liberal Democrat)

My Lords, this has been a rather intimidating debate so far, in the sense that I notice that two of the three noble Lords who have spoken did so from their tablets. To the public mind, tablets in your Lordships’ House are probably seen to be what most of us take at some point during the day. Anybody who thinks that we are not a modern House should take account of what has just happened.

I support the speeches of all three noble Lords—in particular, that of the noble Earl, who opened cogently the debate on the amendment, which also has my name upon it. I am concerned that there should be a discretion vested in the court to allow anonymity for defendants. One could think of hundreds of examples where this would be just. I shall give the House one, which involves a situation in which parents have been instrumental in the child committing a crime. It may be the father who is a thief and has given the child the stolen goods to look after; or it may be a mother who is involved in some other offence in which she relies upon her child to protect her and, for example, warn her if the police are appearing.

For any of your Lordships are devotees of film noir, in a recent episode of that splendid drama, “The Bridge”, an animal rights terrorist involved his brother in a terrorist act and the brother undoubtedly committed criminal offences—we will have to wait and see whether he is prosecuted in the next episode—for his brother’s protection. It is self-evident that there will be cases such as the more real examples that I mentioned earlier, in which there should be a discretion in the court to protect the child from being named.

We are not saying in this amendment that it should happen. We are saying that surely it could happen. I hope that the Minister will tell me that I am wrong— I would be delighted if he did—and say that powers either exist or will shortly exist that will leave this discretion within the criminal court. There are, as the noble Earl said, civil powers that could be used, but these are complex and difficult to access, and we have the problem that legal aid is not necessarily available for such cases. We therefore need to ensure that children who have committed crime and may be only marginally to blame for their involvement have this protection.

We know that historically there are some cases of great notoriety in which, after the child’s release from custody, lifelong anonymity has been granted. It would be right to at least give the criminal court the power to grant such anonymity for a period, so that the notoriety of the child is protected, even if the merits indicate that this matter should be dealt with by a civil court at a much later stage.

I agree also with the noble Earl’s comments in relation to victims and witnesses. Child witnesses are often very intimidated by the prospect of giving evidence.

They know that they are going to be cross-examined and face what may be an unpleasant experience. They will be told that the experience is sometimes well controlled, which is true—but unfortunately it is far from always well controlled. If we are to value the need to obtain child witnesses, particularly in abuse cases and matters of that kind, we should have stronger provision than is contained in the Bill. With those views, I support the amendment and the amendment spoken to by my noble friend Lord Marks, and hope that the Government will say that they would like to take another look at these provisions.

Baroness Hamwee (Liberal Democrat)

My Lords, the world now knows about the technology used by your Lordships and their Saturday night viewing habits. I associate myself with the remarks that have been made. I was not able to be in the House while the Bill was in Committee. However, I was a bit surprised that, rather than a quite simple but perhaps simplistic amendment which restored what everyone had thought of as the status quo, instead the amendment is around 10 lines in length. Those among your Lordships and from the Government who carried out the drafting have come up with very many lines, which can sometimes prove more difficult than a more straightforward and prescribed amendment.

Having said that, I want to mention the position of defendants. I agree very much with what has been said, and I simply add that not to provide anonymity or reporting restrictions—whatever term you apply, although of course they are not necessarily the same thing—seems to me to undermine the whole purpose of the youth justice system, which is rehabilitation, reintegration, and so on. An enormously important principle is at stake here. The same really applies to the amendment of my noble friend Lord Marks. One cannot separate out the stages. I am sure that there is a sporting analogy for this. Having lost anonymity at that early point before being charged, there is really nothing more that one can sensibly do afterwards to fulfil the spirit of what the Government themselves seem to consider important, even if we would like to have more than the Government’s amendment.

Lord Ponsonby of Shulbrede (Labour)

My Lords, my Amendment 123 is largely superfluous in the light of the government amendments. The Standing Committee for Youth Justice has sent to all noble Lords who have taken part in this debate, I suspect, a briefing which was largely laid out by the noble Earl. He made the point very well about the high threshold test proposed by the Government in their amendments. He summarised that by saying that the new threshold test would be a diminishment of co-operation or evidence through fear on behalf of the witnesses or the victims. The Standing Committee for Youth Justice briefing makes the point that this higher threshold is even higher than that in the Children and Young Persons Act. This is an important point, which I hope that the noble Lord will be able to address.

This is a very difficult area of legislation. In my brief time in the courts, although the law has not changed in the adult courts, in practice what magistrates

view as appropriate use of media within a courtroom has changed quite a lot. This is largely at the discretion of the magistrates and district judges involved. I very much hope that the noble Lord will agree that whichever amendments are agreed tonight will be kept under review, because this is such a delicate and difficult matter.

Where I diverge from the noble Earl and the noble Lord, Lord Carlile, is whether lifetime anonymity should be given to child offenders. The briefing was rather less nuanced than the points made by the noble Lord, Lord Carlile. To put it in stark terms, I do not think it reasonable that a young person of 17 and a half should get a lifetime of anonymity, whereas someone who is 18 gets no anonymity if they have committed largely the same offence. If one were to rely on the briefing alone, that is the burden of the argument which is being made. I know that that is not the point made by the noble Lord, Lord Carlile; he presented his case in a more nuanced way. However, I find it troubling that there is potentially a very stark difference in the way that people are treated on either side of the 18 years of age barrier.

I would like to make a further point, which may be a technical one. I noticed that the briefing continually refers to child defendants and not to child offenders, whereas of course all the children about whom we are talking have either pleaded guilty or been found guilty in a court. They are not, in my understanding, child defendants. Having said all that, it is a real issue about the availability of the internet and how that might affect the rehabilitation and reintegration of young offenders into the community.

I conclude with an anecdote, which is not to do with youth. Recently, my wife employed a female offender who was still in prison but on release when she was employed by my wife. It was a wholly positive experience in that the offender worked well and the organisation benefited. However, when my wife searched the internet for the offences that the woman had committed, the information she got was not what she had been told by the offender or the organisation which facilitated the work placement. Nevertheless, I support the Government in their objectives.

Lord Faulks (Conservative)

My Lords, I am grateful to all those who contributed to this debate on these complex issues involving the conflict between a free press, the public’s right to know and the natural desire we have to protect young people from publicity to make sure that they do not suffer for life for any sins they committed in their youth. In acknowledging everyone’s contribution, perhaps I may single out the noble Lord, Lord Ponsonby, who I think, although I may be wrong, is making his debut from the Opposition Front Bench. Noble Lords are shaking their heads and I understand that he is not. Therefore, my congratulations are late but none the less sincere.

Amendment 139 provides the criminal courts with a discretionary power to order reporting restrictions that last for the lifetime of a victim or witness in criminal proceedings who is under the age of 18 at the

time those proceedings commence. Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s from print and broadcast media to include online content as well. Amendment 139 tracks the circumstances in which a lifelong reporting restriction may be available to an adult witness. The criminal courts are therefore given an additional statutory discretion to order lifelong protection for victims and witnesses under the age of 18 to secure their best evidence or co-operation. However, if it is not reasonable or proportionate to make use of this power, the court may continue to rely on the existing youth reporting restrictions available to children and young people.

As these amendments have been tabled in response to the High Court judgment and the noble Lord, Lord Ponsonby, bringing it to our attention in Committee, consultation with the Scottish Government is ongoing and the government amendments are not intended to change the situation in Scotland. Some further technical amendments may be required at Third Reading in respect of territorial extent.

The issue of criminal investigations is covered by Amendment 122AA, which is tabled by my noble friend Lord Marks. This amendment seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999. It is similar to an amendment tabled by the noble Lord, Lord Ponsonby, in Committee. On previous occasions, I explained to your Lordships that, given the significant restriction that Section 44 potentially imposes on freedom of the press and the possibility that its aims might be achievable through other means, it was determined by the then Government in 1999 that Section 44 should be commenced in relation to victims and witnesses only after both Houses have been given the opportunity to debate the issue again.

I fear that I must repeat what I said in Committee. The Government do not believe that this is the right time to consider commencing Section 44 in light of the significant changes to independent press self-regulation that we have introduced. The Privy Council granted a royal charter that has been sealed. The Government believe that that is the best way to ensure that independent press self-regulation operates successfully and that we should give this new approach a chance to succeed. I am sorry that my noble friend Lord Marks does not have much confidence in this. Furthermore, we have some misgivings about Section 44 as drafted, as it imposes restrictions on the press that are so broad as to be potentially impractical.

However, I reassure my noble friend that it is unnecessary to amend Section 44 in order to extend it to online content as we believe that it already covers such media. Section 44 adopts a definition of “publication” that is wide enough to include online content. I will explain this further in dealing with the final set of government amendments and, in due course, I will ask the noble Lord to withdraw his amendment.

In respect of online content and youth reporting restrictions, Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s. Through these amendments, and by commencing Section 45 and the relevant parts of Section 48 of the YJCE Act 1999, restrictions will

also be applicable to online content. The Government intend to commence the relevant provisions of the 1999 Act when the amendments to this Bill come into force.

Youth reporting restrictions will rely on an existing statutory definition of publication, which includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public, but does not include an indictment or other document prepared for use in particular legal proceedings. By using this definition of publication we will broaden the scope of youth reporting restrictions to create consistency with other reporting restrictions already on the statute book, such as those that apply to adult witnesses and victims of sexual offences. It would also be in line with the definition used in Section 2(1) of the Contempt of Court Act 1981 which the Law Commission recently concluded was,

“wide enough to cover the content of new media and probably in the future too”.

The Government agree with that interpretation and has therefore adopted the same definition of publication when extending the scope of youth reporting restrictions to online content. I hope that that reassures the noble Lord, Lord Ponsonby, that the purpose of his Amendment 123 has been met—and I would therefore ask him not to press it.

During the course of the debate there was some reference to whether there was any justification for the distinction between victims and witnesses and defendants. There are a number of statutory protections within the criminal justice system that are applicable only to victims and witnesses. One example is Section 46 of the YJCE Act 1999, which provides for the possibility of lifetime reporting restrictions for adult witnesses. The Sexual Offences (Amendment) Act provides for automatic reporting restrictions for victims of sexual offences. Similar statutory powers are not available for defendants.

I respectfully agree with what the noble Lord, Lord Ponsonby, said about the position of someone who is 17 and then becomes 18. He asked why there should be a difference so that if someone is 17 they have lifetime anonymity. Of course, there are remedies available. If your Lordships accept the Government’s amendments, it is argued that the current position reflects a fair balance between the various considerations that apply in this field. More clarity may be needed in this area of concern, which we will be considering.

I understand that Impress, the second potential self-regulator, is currently appointing its board. We would respectfully suggest that these are matters for the industry and not for government. I also understand that David Wolfe QC has been appointed chair of the independent Recognition Panel and that the board appointment process is also under way. This is a matter for the Commissioner for Public Appointments and not for government. Therefore, for the moment the Government have done all that they need to do.

Earl of Listowel (Crossbench)

My Lords, I am grateful to the Minister for his reply. I note the emphasis he puts on the charter and the institution that is set in place to

improve the way in which the media control themselves. From what he said, I take it that he has an open mind to a certain extent. These are new developments. The charter is a new thing. He will keep looking at it to see if it provides sufficient protection for young people. I am grateful for that open-mindedness.

I was grateful for what the noble Lord, Lord Ponsonby, said. He referred to 17 and a half and 18 year-olds and that it seemed unfair to distinguish so much between the two when there was such a small gap. My response might be: can we not be generous to children? They are still children until the age of 18: can we not err on the side of generosity towards them? I am grateful to all noble Lords who have taken part in this debate and I beg leave to withdraw my amendment.

Amendment 122A withdrawn.

Amendment 122AA not moved.

Amendment 122B

Moved by The Earl of Listowel

122B: After Clause 38, insert the following new Clause—

“Duties of custody officer before charge

In section 37(15) of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge), for “17” substitute “18”.”

Earl of Listowel (Crossbench)

My Lords, I hope that my iPad performs better on this occasion. My amendment would give 17 year-olds detained by the police the right to be held in local authority accommodation rather than overnight detention in a police cell. I tabled amendments to the same effect in Committee and during that debate I explained the importance of the matter. I was grateful for the sympathetic response from the Minister at the time and for his letter in July which laid out the timetable for the Government’s response to this question.

I will not repeat all the arguments other than to say that children under the age of 17 already have the right not to be detained in a police cell, but to be transferred to a local authority bed. Those aged 16 and under are already protected from being placed in police custody, an unsuitable and detrimental environment for the overnight detention of children. The recent tragic cases where teenagers have died after being treated as adults while at the police station remind us all too well of this fact. The UN Convention on the Rights of the Child is clear that 17 year-olds are children. However, the Police and Criminal Evidence Act 1984, known as PACE, which governs the operation of police stations, is currently inconsistent on this point. It is this Act which I am seeking to amend, specifically to enable 17 year-old children to access local authority accommodation.

In his reply in Committee, the Minister explained that the Government were holding an internal review of all the legislation where 17 year-olds are treated as adults in the criminal justice system. He explained that the review included looking at the necessary consequential amendments that would result from the proposed

change in the law, and that the Government would need to ensure that such a change was workable. He concluded by saying:

“While this is clearly an important issue and one that the Government take extremely seriously, for the reasons I have given I am unable to commit myself to having an answer by Report. I hope that we will have, but I am afraid that I am unable to give that commitment”.—[Official Report, 23/7/14; col. 1205.]

I have tabled this amendment in the hope that the Minister might possibly be in a position to give the answer he hoped to have. I note from his letter in July that in fact the timetable he has set would give us a result in the spring of next year, but I hope that just possibly the Government have moved faster than he expected, because this needs to be addressed as soon as possible.

The charity Just for Kids Law has told me that it understands that the Home Office PACE strategy board, comprised of the police, civil servants and other relevant parties, has now met a number of times and that the last meeting of the board was held on 22 September. I am told that the charity has had sight of the minutes of that meeting and that civil servants have committed to submitting to Ministers an amendment to transfer 17 year-olds from police cells to local authority accommodation. As I say, I hope that the Minister might have some good news for us tonight. Is he in a position to confirm that this work has been done and, if so, can he tell the House that the Government are in agreement that this is the way to proceed now?

The Bill provides an ideal opportunity to amend PACE with regard to 17 year-olds as recommended by the internal review, and I hope that the Government will take it. I believe that there is a need to act with some urgency to ensure that there are no more teenage suicides as a consequence of their time in police custody. Since 2011 there has been one suicide a year where children were treated as adults at the police station. I am concerned that this issue should not be kicked into the long grass, as it has been in the past. In 2010 the Government committed to extending the appropriate adult provision to 17 year-olds, but it took seven years and a court decision before anything was done. In the interim, two children died after being treated as adults in police custody. The parents of Joseph Lawton, a successful and popular A-level student with no mental health problems, believe wholeheartedly that his suicide was the consequence of being kept in a police station overnight and their not being informed of what was happening. This simple amendment could prevent the death of another bright and successful child. The House should not forget the potential consequences of not amending the legislation. We owe it to the devastated parents who have campaigned on this issue and to all children. As parliamentarians, we have a duty to protect them and we should act as soon as possible.

Beyond children themselves, the people this change will impact on the most is the police. They support the change and have said this to the Home Office. I have also seen an e-mail on behalf of the national policing lead, Dawn Copley—who is also assistant chief constable of Greater Manchester Police, the area where all three 17 year-olds died—stating that,

“it is the National Policing position as held by Dawn Copley who is the national lead for Custody that PACE should be changed so that 17 year olds are treated as children in all the provisions of the Act”.

Given the importance of the issues at stake, with the police and bereaved parents stating that they are in agreement for change, and seeing the Government’s own independent review advising them the same, I hope that the Minister will indicate that the Government are able to support my amendment tonight. I beg to move.

Lord Ashton of Hyde (Conservative)

My Lords, I fully appreciate the laudable aims of this amendment, which seeks to make a positive change following the tragic cases of the three 17 year-olds who committed suicide following their encounters with the police. To lose a child is a tragedy, particularly in the sad circumstances surrounding the deaths of Joseph Lawton, Edward Thornber and Kesia Leatherbarrow. This Government have the utmost respect for the dedicated commitment of their families, who continue to campaign on this important issue.

The Government acted swiftly to ensure that they complied in full with the High Court decision in the judgment of Hughes Cousins-Chang. Changes were made as soon as possible following the statutory obligation to consult on PACE code changes. PACE codes C and H have been amended, and it is now mandatory that 17 year-olds have an appropriate adult with them at the police station and that the police inform a parent or guardian of their arrest and detention.

When this amendment was debated in the House on 23 July, noble Lords observed that the amendments to the PACE codes introduced inconsistencies between the Police and Criminal Evidence Act 1984—the primary legislation—and the PACE codes with respect to the treatment of 17 year-olds. On the one hand, they are treated as children and bestowed with the appropriate safeguards. However, when it comes to the location of their detention overnight post-charge, and their pre-court appearance, the noble Earl, Lord Listowel, and the noble Baronesses, Lady Kennedy and Lady Howe, made the point that the Police and Criminal Evidence Act continues to treat 17 year-olds as adults. They acknowledged that, while 17 year-olds may look like adults and sometimes act like adults, they are still children who find the environment of the police station to be frightening and threatening.

There are, of course, already in place important safeguards for all children under 18 who come into contact with the police. Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. This means that the police have to make arrangements to safeguard and promote the welfare of 17 year-olds detained post-charge overnight in the police station, and this is one way of ensuring that the best interests of those children can be upheld. Additionally, children under 18 have access to appropriate adults at the police station, who are with them throughout interviews and during procedures such as the taking of fingerprints and samples.

The Government are committed to ensuring that young people are protected and treated appropriately while in police custody. The noble Earl, Lord Listowel, spoke passionately in Committee on this matter, so I hope he will be pleased that, shortly after the High Court’s decision in the case of Hughes Cousins-Chang, the Government launched a review of the remaining pieces of primary legislation that treat 17 year-olds as adults. We expect the review to report shortly. As he mentioned, the working group responsible for reviewing the legislation reported to the PACE strategy board earlier this month.

The Home Office review was wider-reaching than the amendment. If it is indeed right to amend the Police and Criminal Evidence Act 1984 so that it treats 17 year-olds as children, then that principle should relate to all sections in the Act and not just the section that relates to overnight accommodation. Furthermore, any change to primary legislation needs full scrutiny, consultation and appropriate consideration by Parliament. This amendment is laudable in its aims but, in our opinion, represents a too-hurried and partial approach to the issue of how we treat young people at the age of 17 at the front end of the criminal justice system. There is more to be gained by pausing on this matter for the time being to enable the Home Office to consider the conclusions of its review. For these reasons, although I understand the reasoning behind the amendment, I respectfully ask the noble Earl to withdraw his amendment.

Earl of Listowel (Crossbench)

My Lords, I am grateful to the Minister for his careful response and for his recognition of the great distress that these sad events have caused the families in question. I was very pleased to hear that his department has undertaken to review these matters so that they can be changed as soon as possible.

I wonder if it might just be possible for him to go back and speak to his department to see if something could be done by Third Reading in this area, but I understand from what he said that this is unlikely. I appreciate that the Government are doing all they can as fast as they can to remedy this. I encourage them to work as hard as they can on this because I am sure that they, as much as any of us, wish to avoid these tragic events befalling any more children and families in the future. I am grateful to the Minister for his reply and I beg leave to withdraw my amendment.

Amendment 122B withdrawn.

Amendment 123 not moved.

Amendment 124

Moved by Lord Faulks

124: Before Clause 44, insert the following new Clause—

“Time limit for bringing certain criminal proceedings

Offence of making improper use of public electronic communications network

(1) In section 127 of the Communications Act 2003 (improper use of public electronic communications network), at the end insert—

“(5) An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made—

(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and

(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.

(6) Summary proceedings for an offence under this section may be commenced in Scotland—

(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and

(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,

and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.

(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.”

(2) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

Amendment 124 agreed.

Clause 46: Criminal courts charge

Amendment 124A

Moved by Lord Marks of Henley-on-Thames

124A: Clause 46, page 43, line 31, leave out “order” and insert “consider ordering”

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.

Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.

However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions,

I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.

Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.

I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.

Lord Ponsonby of Shulbrede (Labour)

My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.

My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.

I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.

I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and

literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.

Lord Faulks (Conservative)

My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.

The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.

The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.

Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.

Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge

and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.

Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.

New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.

I stress, however, that this is a novel scheme and the Government have already agreed already to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lords will agree that this further safeguard demonstrates the Government’s commitment to getting this right.

I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.

The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.

If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.

The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure the noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.

I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.

I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.

I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.

Finally, I suspect that when it comes to the review of the operation of this charge in three years time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.

Amendment 124A withdrawn.

Amendments 124B to 127 not moved.

Clause 49: Personal injury claims: cases of fundamental dishonesty

Amendment 128

Moved by Lord Hunt of Wirral

128: Clause 49, page 48, line 11, after “claim” insert “which consists of or includes a claim”

Lord Hunt of Wirral (Conservative)

My Lords, I am moved to move this amendment, inserting the words,

“which consists of or includes a claim”,

so that Clause 49 would read,

“proceedings on a claim which consists of or includes a claim for damages in respect of personal injury”,

because immediately after Committee, when we had a very good debate on what is now Clause 49, a number of people on all sides of the House expressed to me concern that quite often a claim for personal injury is accompanied by another claim, such as a claim for credit hire, that is often found to be bogus, made up, exaggerated or just plucked out of the air. Also, so far as whiplash injuries were concerned, a number of colleagues were concerned about the allegation that we had become the whiplash capital of the world, and wanted to create a deterrent to someone who had damaged their vehicle through a shunt or an accident, had recovered the repairs to their vehicle but then, as a result of a text message or some other marketing effort, decided to bring a claim for whiplash. It was put to me that thousands of such claims were being made that really were promoted by claims management companies without any substantial reason for the claim being made in the first place.

So I have tried here to extend the remit of the sanction for fundamental dishonesty to cover not only injury claims but claims presented where the injury itself is used as a means by which a dishonest claim—for example, a claim for credit hire—is made. I do this by aligning the wording in Clause 49 with that in, for example, Rule 44.13 of the Civil Procedure Rules 1998, which spells out the scope and intention of qualified one-way cost shifting. I hope that noble Lords will understand that I do not really need to repeat in detail the Civil Procedure Rules; suffice to say that I am aligning the amendment in accordance with that rule. Its wording is also aligned with Section 11 of the Limitation Act 1980. Again, for the record, I say that it is Section 11.

The amendment would capture vehicle repair costs paid before a dishonest injury claim was presented, but I believe that its greater impact would be in the arena of credit hire claims where genuine injury claims are frequently used as a means to present a dishonest, either fabricated or exaggerated, claim for hire. I could cite a whole series of relevant cases but I am not sure that noble Lords wish me to go into too much detail. There are a number of them where claims management companies, one in particular, presented 36 claims, 35 of which subsequently proved to be completely fabricated and, when challenged, were withdrawn. One claim was pursued but dismissed at first instance. As a result of that dismissal there was an appeal to the Court of Appeal, which said, “I think there should be a retrial”. The retrial began but, after evidence-in-chief, the claim was suddenly withdrawn so no claim for damages was maintained. Of course one can only speculate about why it was withdrawn. I refer to the case of Basharat Hussain v Adil Hussain v AVIVA UK Insurance Ltd, a reported case that is an example of exactly what I am hoping this amendment will stop—fabricated claims associated with an injury claim being made. I am sure that there would be all sorts of

problems, but I hope that my noble friend will agree at least to give this a little further thought so that we can ensure that Section 49 is effective.

I shall also speak to my Amendment 130, on a matter where there is a government amendment already. This applies to Clause 49(5). Section 51 of the Senior Courts Act 1981 states that:

“Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in … the civil division of the Court of Appeal”,

or any court, are in the discretion of the court. Based on the original draft of Clause 49(5), it would not appear that it was the intention to remove the discretion as to the costs order to be made. The proposed amendment tabled by my noble friend the Minister conflates the order and the assessment, but it is unlikely that the assessment of costs will take place at the same time as the costs order is made. Therefore, surely it should be clear that, first, the court retains a discretion as to the costs order made; and, secondly, that the costs still need to be assessed separately. Once the costs have been assessed, if an order is made in the defendant’s favour, then the sum recorded in accordance with subsection (4) as to the amount the court would have awarded in damages is deducted from the assessed sum.

I hope that my noble friend the Minister will regard this amendment as necessary to ensure that what he intends to do is properly reflected in the statute. So far as Amendment 128 is concerned, I beg to move.

Lord Hope of Craighead (Judge)

My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:

“The duty under subsection (2)”—

which is one to dismiss a primary claim—

“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.

It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to

reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.

I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.

I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.

However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.

Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.

However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim

would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.

I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.

I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.

Lord Kennedy of Southwark (Labour)

My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.

Lord Beecham (Labour)

My Lords, I expect that other Members of your Lordships’ House will have had my experience of being called about accidents or insurance policies that I have never had, and I entirely sympathise with my noble friend’s last observations. Clearly, no one would wish dishonesty in the presentation of a claim to go without penalty. However, there are some questions to be asked about this provision. The first of those is, why should any change in the law, which we are now progressing, apply only to PI cases? The noble Lord, Lord Hunt, has broadened that somewhat, and is in a sense making my case for me, because he cited a

case in which there is both an alleged personal injury and an accident. However, the driver who sues for a personal injury and is deemed to have been fundamentally dishonest will of course be penalised, and rightly so—although how the penalty is levied is perhaps debatable. However, if the claim is only for the damage to the vehicle, he will not be caught by the present clause, and nor, of course, would somebody fundamentally dishonest—whatever that means; that is perhaps another issue, but let us take it as a given at the moment—in a whole variety of other claims. Why should not somebody making a claim—for example, as regards breach of contract, professional negligence or any number of claims that have a monetary element in them for some breach of duty other than involving personal injury—also be brought within the framework? It seems odd to single out this group, albeit there clearly are cases where claims management companies and the like deliberately promote false claims.

Having listened to the noble Lord, Lord Marks, I am not entirely sure that this binary system of small claims and larger claims is appropriate. What might be a small claim to me and some other Members of your Lordships’ House is not necessarily a small claim to the individual claiming £25,000. One needs to have the same approach overall. However, there is then an issue about what constitutes substantial justice, and that is also unclear.

The major issue to which my amendment is addressed is why the courts should have to strike out a claim—an argument made, up to a point, by the noble Lord, Lord Marks—in its entirety on the balance of probabilities, as opposed to the criminal standard of proof. After all, we are talking about essentially criminal behaviour—it is essentially fraud. That is unsatisfactory, particularly if a claim is to be dismissed on that basis, hence my amendment. Of course, as I informed the House in Committee, in the case of Fairclough Homes v Summers in the Supreme Court, the noble and learned Lord, Lord Clarke, said:

“It is for the court, not for Parliament, to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”.

He said that the existing power to strike out should,

“only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances”.

One has to take that judgment into account in determining how to apply the test. I invite the Minister to reconsider whether the balance of probabilities is not a safer and better test to apply before further draconian action—which must in part be justified by fraudulent behaviour—is taken.

Lord Faulks (Conservative)

My Lords, I am most grateful to all those who have spoken in the debate. This is not, I readily concede, a straightforward provision. Our debates both in Committee and on Report have been illuminating. The stance taken by the noble Lord, Lord Beecham, tonight is somewhat different from that which he took in Committee—but I commend him on his mental agility in that regard. Of course, the fact that his arguments have somewhat changed—

Lord Beecham (Labour)

My Lords, will the Minister take it from me that I can count?

Lord Faulks (Conservative)

The noble Lord’s arguments do not deserve lesser consideration for their recent arrival in our debate. He asked, for instance, why personal injuries, rather than other fields, should be singled out for attention. The answer is simply this. Of course fraud has a role in the law of contract, the law of property and other areas of the law. But this is a provision to deal with a particular mischief, of which we are all aware in one form or another. Unfortunately, the explosion of claims, with dishonest claims and people calling others to invite them to participate in dishonest claims, has become widespread, and the Government are responding in a variety of different ways, including by regulating claims management companies—I am glad to see the reduction in the number of such companies—and by introducing this provision.

Amendment 128 was tabled by my noble friend Lord Hunt of Wirral, to whom the House listens very carefully on all things, but perhaps particularly in areas such as this. It would extend the scope of Clause 49 to cover claims for items linked to the personal injury claim. As he has indicated, this could typically include items such as damage to property and the cost of credit hire. The effect of the amendment would be that where the court was satisfied that the claimant had been fundamentally dishonest, its order would dismiss any such related elements, as well as the claim for personal injury—when, for example, a claim for personal injury is used as a vehicle for other fraud.

I understand precisely what my noble friend says, and I have considerable sympathy for what lies behind the amendment, which is to make the clause as strong a deterrent as possible. However, after careful consideration by my officials and myself, I believe, on balance, that it would unnecessarily complicate the clause, and could have unintended consequences that would not be desirable.

The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the claimant’s insurer, and are then recovered by them from the defendant’s insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the claimant’s insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.

The complexity of the law on subrogated rights means that the potential for this type of unintended consequence would be high. In any event, I do not consider the amendment necessary. The existing focus of the clause on personal injury claims avoids complexities of this nature, and ensures that the core matter in relation to which the claimant has actually been dishonest, and where the main scope for dishonest behaviour arises—the personal injury claim—will be dismissed whenever the court considers it appropriate. We are

confident that this should provide a sufficiently powerful deterrent to discourage claimants from seeking to bring fraudulent and exaggerated claims, and believe that the amendment could on balance run the risk of creating uncertainty in the law and would make the clause unnecessarily complex in practice.

On Amendment 128A, the noble Lord, Lord Beecham, said that it would be more appropriate to have not the civil standard of proof but the criminal standard of proof. I think that he refers—if not explicitly, implicitly—to a recommendation of the Joint Committee on Human Rights on this, which based its recommendation on the view that the inclusion of the relevant measure is indicative of the quasi-criminal nature of the sanction imposed by the dismissal of the claim. The Government strongly disagree that that is the case. Subsection (7) simply ensures that the order for dismissal can be taken into account by a court hearing any proceedings against the claimant in relation to the same dishonest behaviour, whether they be civil or criminal proceedings for contempt or a criminal prosecution. This is to ensure that the claimant is dealt with fairly and that any punishment imposed in those proceedings is proportionate given the overall effect of the consequences of the claimant’s dishonest behaviour upon him or her. This approach is also reflected in other aspects of the clause—in particular, subsection (5) in relation to costs sanctions.

As we have set out in the ECHR memorandum accompanying the Bill, we consider that the adoption of a civil standard of proof can be fully justified. The sanction of deprivation of property involved in the dismissal of the claim would occur in the context of civil proceedings in relation to civil compensation, proceedings which are brought by the claimant, not the state. No criminal conviction could arise from the dismissal process itself, and it does not involve anything that could be said to be a criminal charge. We consider that the analogy drawn in the ECHR memorandum with the approach of the European Court of Human Rights and the domestic courts to confiscation proceedings under the Proceeds of Crime Act 2002, in which a civil standard of proof has been upheld, is a valid one, and that the adoption of the civil standard of proof in Clause 49 is both fair and appropriate.

Amendments 128B, 128C, 128D, 128E, 130A and 130B tabled by my noble friend Lord Marks are similar but not identical to those tabled by him in Committee, save that the court is given a discretion to reduce the award of damages rather than dismiss the claim entirely, or, it would seem, take no action at all, in circumstances where the genuine part of the award is £25,000 or more. We do not believe that it is appropriate to impose a financial limit of this nature. I endorse what the noble Lord, Lord Beecham, said about this. Although the widening of the court’s discretion not to dismiss the claim is of a lesser extent to that which the noble Lord previously suggested, the amendments would still weaken the effect of the clause and interfere with its effective operation by imposing what is inevitably an arbitrary dividing line.

As I explained in Committee, the sanction imposed by this clause—the denial of compensation—is a serious one, and will be imposed only where the claimant’s dishonest behaviour goes to the heart of the claim.

If the court, having heard all the evidence, is satisfied that that is the case, I believe that it is right that it should be required to dismiss the entire claim unless doing so would cause substantial injustice to the claimant. People who behave in such a way should not be able to get compensation regardless, whatever the amount involved.

The amount of compensation which the claimant would otherwise have been awarded, and the proportion of the overall claim which that represents, will, of course, be matters that the court may wish to take into consideration in deciding whether the claimant has been fundamentally dishonest and, if so, whether its discretion not to dismiss the claim should be exercised. Where the effect on the claimant might be particularly harsh or unfair on the facts of the case, the substantial injustice test will provide sufficient protection. The addition of a further discretion simply waters down the deterrent effect of this provision.

On Amendment 129, during the debate in Committee some uncertainty was expressed about the policy intention underlying subsection (5) of Clause 49, and whether the existing drafting of the subsection clearly and accurately captured that intention. In the light of those concerns, we have tabled government Amendment 129, which clarifies the position by replacing the existing subsection with a new subsection. This provides that when assessing costs in the proceedings, a court which dismisses a claim because of the claimant’s fundamental dishonesty must deduct the amount of damages that it would have awarded to the claimant from the amount of costs which it would otherwise order the claimant to pay in respect of the defendant’s costs. The intention underlying this provision is, as I have previously explained, to ensure that claimants are not excessively sanctioned by both losing the genuine element of the award of damages and having to pay the defendant’s costs without any credit for what the defendant has saved by avoiding payment of the genuine element of the award. I should add that one of the main intentions behind this provision is to deter people from bringing these claims at all, or at least deter them from being dishonest when advancing them.

Beyond that, it is not our intention to interfere more generally with the court’s discretion on whether to make a costs order and, if so, in what terms. We believe that the court should be able to make whatever orders it considers appropriate. In many cases the court will doubtless decide to award the defendant’s costs in full, apart from the sum deducted under this subsection. However, in some cases, it may decide only to award the defendant some of its costs in circumstances where it considers that certain costs have been unnecessarily incurred—for example, where the defendant had spent money pursuing an irrelevant issue.

Amendment 129 preserves the court’s discretion to do this, or indeed to decide, in the circumstances of a particular case, to make no award of costs at all. We believe that it is important for a provision on this issue to remain in the clause to ensure that it operates in a fair and proportionate way, and I am therefore—although I do not think my noble friend is pursuing it with any vigour—unable to accept Amendment 128F, which would remove it altogether.

My noble friend Lord Hunt has indicated that he remains concerned that Amendment 129, the government amendment, may still create some confusion, and has proposed Amendment 130 instead. While I share my noble friend’s concern to ensure that the provision is as clear as possible, on careful consideration, we do not believe that his fears about our amendment are justified.

In particular, I should point out that, even if the actual assessment of the amount of costs payable is undertaken by a different judge or officer at a later date, as would normally be the case in a detailed assessment of costs, assessment is still being undertaken by the same court that has dismissed the claim, and so the requirement to deduct the amount recorded in subsection (4) from the ultimate costs “bill” that the claimant may have to pay applies regardless of the point of time at which, or judge by which, the costs payable are determined. I am also concerned that my noble friend’s amendment simply restates the existing law confirming the discretion of the court to award costs. On balance, we feel that it is unnecessary to restate this in legislation, and it might be taken to imply that this was not already the position, or that special rules regarding the court’s discretion as to costs are required in these cases. That would be contrary to the policy, which is not intended to make any changes to the rules on costs themselves.

On reflection, I consider that government Amendment 129 makes it amply clear that if the court decides to order costs against the claimant, it must deduct the amount of the damages it would have awarded but for the effect of Clause 49, so that the claimant has to pay whatever costs, if any, that are ordered net of that amount. I believe that the Government’s amendment clarifies this policy intention in a way that removes any ambiguity that might have arisen from the previous text of the subsection. However, I remain extremely grateful to my noble friend for drawing that to the attention of the House. I am sorry that I detained the House a little longer than might be desirable at this time but these are complex provisions, and it may be helpful if I provide a little detail about this.

I conclude by dealing with the question of where parts of a claim may be involved. The noble and learned Lord, Lord Hope, pointed out a possible ambiguity. It may be that this is what he has in mind. I shall answer the question: why does the court have a discretion not to dismiss the claim when the claimant would suffer a substantial injustice? We believe that an element of discretion is necessary because difficult cases may arise where depriving the claimant entirely of damages may cause substantial injustice. This might be the case, for example, where a claimant had genuinely been very seriously injured through another person’s negligence, perhaps requiring substantial ongoing future care and support as a result, but stupidly colluded in a bogus minor injury claim by a family member in relation to the same accident. We do not, however, think there is any need to amend the provisions. We think that judges will be able to work with these provisions and that the Government’s intention and, I hope, that of noble Lords from all around the House,

will be achieved by these important provisions. I hope that all noble Lords who have tabled amendments will agree to withdraw or not move them.

Lord Hunt of Wirral (Conservative)

My Lords, I first remind the House of my interests as declared in the register. Secondly, I thank my noble friend the Minister for his very careful consideration of all the points which have been raised, and for his recognition that these are genuine attempts to eradicate a practice which has arisen and which must be stopped. I will of course very carefully consider all the points he has made, and in the mean time I beg leave to withdraw my amendment.

Amendment 128 withdrawn.

Amendments 128A to 128F not moved.

Amendment 129

Moved by Lord Faulks

129: Clause 49, page 48, line 26, leave out subsection (5) and insert—

“( ) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.”

Amendment 129 agreed.

Amendments 130 to 130B not moved.

Clause 50: Rules against inducements to make personal injury claims

Amendment 131

Moved by Lord Faulks

131: Clause 50, page 49, line 10, at end insert “or is treated as doing so under subsection (3A)”

Lord Faulks (Conservative)

My Lords, I am grateful once again to my noble friend Lord Hunt of Wirral for raising this issue in Committee. During that debate, I indicated that we would consider his amendment further. There has been widespread support for the ban on offering inducements to bring personal injury claims in Clauses 50 to 52, but I am concerned to make this as effective as possible. Having reflected over the summer—I have been given a great deal on which to reflect over the course of the Bill—I agree with my noble friend that we should seek to prevent regulated persons avoiding the ban by offering an inducement through third parties.

The noble Lord’s amendment was prompted by a concern that it is now increasingly common for solicitors to operate as part of larger groups of companies, or to have subsidiary or linked companies offering services alongside them. Those subsidiary or linked companies are not always regulated, and it would be relative easy

for, say, a solicitor simply to route an inducement through an unregulated company, thus avoiding the ban.

For the avoidance of doubt, I add that we do not wish to regulate third parties, only to prevent regulated persons from avoiding the ban by offering an inducement via an unregulated subsidiary or a linked business or individual. I believe that this amendment is a proportionate means of making the necessary ban on inducements more effective, and I beg to move.

Lord Hunt of Wirral (Conservative)

I am very grateful to my noble friend the Minister.

Lord Beecham (Labour)

I am afraid I cannot beat the brevity of that. I would like a little guidance from the Minister about the nature of the regulation. Can he give any indication of how effective whatever the regulatory body is—I confess that I do not know which it is—in overseeing this practice? I am entirely with the Government in wishing to ensure that such practices are limited as much as possible, for precisely the reasons that were mentioned by the noble Lord, Lord Hunt, and with which we all concur: the promulgation of false claims, which is wrong in itself and, of course, a drain on the economy generally. I am not clear what the regulatory system currently is, or how effective it is. While supporting the Government’s intentions in the amendment, it would be helpful to have an impression of that.

Lord Faulks (Conservative)

I am happy to write to the noble Lord with as much detail as we have. In the mean time, I can tell him and the House that anecdotal evidence shows that the practice is more prevalent among solicitors than non-regulated persons. However, once there is a ban in place preventing legal services providers from offering an incentive to issue claims, there is a possibility that non-regulated persons offering inducements to issue claims with legal services providers will be used as a way around the ban.

As to what types of third party rather than regulated persons might offer a benefit, these are likely to be but not restricted to those working in what are described as “first notification of loss teams”. The teams are used by insurers and are the central point that clients contact when they wish to make a claim on their insurance policy. The intention is to ban any inducement which encourages or might have the effect of encouraging a person to make a claim or seek advice about making a claim, including so-called welcome payments, free gifts and cash advances.

The noble Lord will know that there is far too much by way of unsolicited phone calls going on in relation to personal injury claims, which is another matter we take seriously. It is a complex issue that requires action on a number of fronts, both legislative and non-legislative. We have taken a number of measures as set out in our nuisance calls action plan of 30 March. I can give the website address if necessary. It includes increasing the fines that Ofcom can issue from £50,000 to £2 million, enabling the Information Commissioner’s Office to issue fines of up to £500,000, and providing simple and consistent information to consumers on preventive action that they can take and how they can complain about unsolicited phone calls via Ofcom.

If the noble Lord is having particular difficulty with being asked to make fraudulent claims, which I am sure we have all encountered, he may wish to know that he can register with the Telephone Preference Service, which should result in his avoiding such claims. I hope that that provides some further information, but I undertake to give more information in due course.

Lord Beecham (Labour)

I thank the noble Lord for providing further information, but it is not terribly helpful because the Telephone Preference Service seems to be totally useless. Apart from anything else, it does not seem to work with a BlackBerry these days. It is quite extraordinary. Having appreciated that regulated persons include members of my profession and that of the noble Lord, Lord Hunt, I am sure that he will agree that it is a very sad commentary on the current state of what was a profession and is now increasingly descending, if I may put it that way, into a rather unscrupulous business —which is a matter I think we would both deplore.

Amendment 131 agreed.

Amendments 132 to 135

Moved by Lord Faulks

132: Clause 50, page 49, line 18, leave out “by a regulated person”

133: Clause 50, page 49, line 23, leave out “A benefit offered by a regulated person” and insert “An offer of a benefit”

134: Clause 50, page 49, line 30, at end insert—

“(3A) If a person other than a regulated person offers a benefit in accordance with arrangements made by or on behalf of a regulated person—

(a) the regulated person is to be treated as offering the benefit, and

(b) the offer of the benefit is to be treated as satisfying subsection (2)(a) if the arrangements were intended to encourage people to make claims or seek advice from a regulated person with a view to making a claim.”

135: Clause 50, page 49, line 32, leave out “offered by a regulated person”

Amendments 132 to 135 agreed.

Clause 51: Effect of rules against inducements

Amendment 136

Moved by Lord Faulks

136: Clause 51, page 50, line 9, after second “person” insert “or is treated as having done so under section 50(3A)”

Amendment 136 agreed.

Clause 52: Inducements: interpretation

Amendment 137

Moved by Lord Faulks

137: Clause 52, page 50, line 33, after “The” insert “Chartered”

Amendment 137 agreed.

Amendment 138

Moved by Lord Faulks

138: Before Clause 54, insert the following new Clause—

“Appeals from the Court of Protection

(1) Section 53 of the Mental Capacity Act 2005 (rights of appeal from the Court of Protection) is amended as follows.

(2) For subsection (2) substitute—

“(2) Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.”

(3) Omit subsection (3).

(4) In subsection (4)(d), omit “higher”.”

Lord Faulks (Conservative)

My Lords, I shall speak to three amendments tabled in my name on behalf of the Government. We have the pleasure of the noble and learned Lord, Lord Hope, in the Chamber in respect of these amendments and I thank him for his patience for remaining for so long. Amendments 138 and 181 seek to rectify an omission in relation to appeals from decisions at lower levels in the Court of Protection, which was not addressed when the range of judicial officeholders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013.

The need for the amendment does not only arise from, but has been starkly highlighted by, the decision of the Supreme Court in what has become known as the Cheshire West case. That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required for such a deprivation of liberty.

As a result, it is predicted that there will be a significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty in cases where, prior to Cheshire West, no such authorisation was considered necessary. It is considered that the figure may well be in excess of 28,000 additional applications annually. To deal with this increase in workload, deputy district judges and judges from other jurisdictions are being deployed to the Court of Protection for the first time. The Crime and Courts Act 2013 allowed for this wider range of judges to deal with Court of Protection cases but did not address the question of appeals.

The current provision in the Mental Capacity Act 2005 governing the route of appeal from decisions in the Court of Protection allows for decisions of specified judges to lie to a higher judge in the Court of Protection rather than directly to the Court of Appeal. However, the judges specified are limited to district judges and circuit judges, and the provision does not cover decisions of any of the wider range of judicial officeholders now able to sit as judges of the Court of Protection. The Crime and Courts Act omitted to amend it to align with that wider range. Without this amendment, appeals from decisions of judges in that wider range—even though they are decisions of the same sort as those of a district judge at present, for example—would have to go to the Court of Appeal, thereby increasing workload in the appeal court. This amendment makes good the omission.

The judges whose decisions may be appealed within the Court of Protection and the higher judges to whom appeal against those decisions will lie within the Court of Protection will, as now, be specified in Rules of Court, namely the Court of Protection Rules. This

will prevent the Court of Appeal being unnecessarily burdened by a significant increase in cases and allow the Court of Protection the flexibility to deal with resources efficiently. This, in turn, will reduce delays and the need for cases to be transferred to a different court. It will also provide greater consistency in how appeals are managed across other jurisdictions.

Members of the House of Lords Select Committee on the Mental Capacity Act 2005—I should declare an interest as having been a member of that committee for some time—were given written notice of this proposed amendment which was made available in early August to allow time for consideration.

Amendment 142 would have the effect of allowing the President of the Supreme Court of the United Kingdom to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom can do already under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales. This amendment would give the President of the Supreme Court the same avenue to raise similar matters to Parliament. The proposed amendments were initially tabled by the noble and learned Lord, Lord Hope of Craighead, and I am grateful to him for bringing this matter to our attention. The Government have considered and reflected further on the implications of this proposal and agree that the change is justified,

Amendment 143 was also tabled in Committee by the noble Lord. This amendment would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the Supplementary Panel within two years of their retirement, provided that they are under the age of 75. At present, it is impossible for the Supreme Court to identify particular skills or expertise which might be of use in the future—particularly without knowledge of future workloads. This makes it difficult to identify which qualifying judges should be added to the Supplementary Panel before they retire from full-time judicial office. The amendment provides greater flexibility in this respect.

These are minor but sensible amendments which I hope the House will agree to. I beg to move.

Lord Hardie (Judge)

My Lords, I apologise for speaking at this late hour and detaining your Lordships but Amendment 138 is important for the application of the safeguards in the Mental Capacity Act against depriving people of their liberty without justification and for the need to provide proper judicial supervision of such actions. I declare an interest in that I was chairman of the Select Committee on the post-legislative scrutiny of the Act.

The consequence of the need to ensure that these safeguards are in place is that there should be adequate resources to decide cases at first instance and on appeal within the Court of Protection. These cases should be decided by the appropriate level of judges. I am grateful to the Minister for explaining the reasoning

behind this amendment. I understand that the decision in the Cheshire West case, in which the Supreme Court concluded that each of the three appellants who had mental or physical disabilities or had suffered deprivation of their liberty within the meaning of Section 64(5) of the Mental Capacity Act 2005, had the effect of increasing the workload of the system.

I should advise the House that I have been told that the number of cases involving an alleged deprivation of liberty referred to local authorities for assessment, which is the first stage, has increased dramatically. There has been a ninefold increase in monthly referrals. The total number since April this year is almost 33,000, compared with 8,455 for the whole of 2012-13. This will not come as a surprise to the members of the Select Committee on post-legislative scrutiny of the Act, which I had the honour to chair and of which the Minister was a distinguished member before his justifiable appointment to ministerial office.

Our report predated the decision in Cheshire West by, I think, about a week. We heard evidence over a number of months suggesting that the then available figures did not accurately reflect the number of people who were actually subject to deprivation of liberty. Perhaps I may quote from paragraph 270 of the report, where we record our conclusion on that evidence:

“We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge”.

Against that background, it is not surprising that the Government are anxious to take a more flexible approach to appeals, but it is equally important that these appeals are held by judges of higher authority than first-instance judges. The existing provisions in the Act have a hierarchy where the first-instance judges are set out as people who are drafted in—district court judges or circuit judges—and there is a hierarchy of appeals. From those who are drafted in, there is a right of appeal to the district court judge or the circuit judge. From the district court judge there is a right of appeal to the circuit judge, and from any of the three of them there is an appeal to the senior judges who are nominated to serve in the Court of Appeal.

In Scotland, England and Wales appeals are generally heard by an appeal court that is comprised of more than one judge, but there are exceptions where appeals may be heard by a single judge. In Scotland, for example, one might appeal against a decision of a sheriff to the sheriff principal. We have seen that in England and Wales there is the possibility of an appeal to a single judge in the Court of Protection. But where it is an appeal to a single judge, it is always an appeal to a single judge of a higher status and legal authority. That is preserved in the original provision, but in the amendment being proposed no reference is made to it. I appreciate that the likelihood is that the rules council would not permit an appeal to someone of equal or lower status, but I am concerned that it should be put on the record that that would not happen, because otherwise there might be a suggestion to the more vulnerable members of society that their appeals were not being treated with equal concern and consideration as those of the more able.

Lord Hope of Craighead (Judge)

My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.

I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.

Lord Faulks (Conservative)

I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.

Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.

Amendment 138 agreed.

Amendments 139 to 143

Moved by Lord Faulks

139: After Clause 68, insert the following new Clause—

“Reporting restrictions

Lifetime reporting restrictions in criminal proceedings for witnesses and victims under 18

(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—

“45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18

(1) This section applies in relation to—

(a) any criminal proceedings in any court (other than a service court) in England and Wales, and

(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.

(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.

(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—

(a) a witness, other than an accused, in the proceedings;

(b) a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.

(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—

(a) the person’s name,

(b) the person’s address,

(c) the identity of any school or other educational establishment attended by the person,

(d) the identity of any place of work of the person, and

(e) any still or moving picture of the person.

(5) The court may make a reporting direction in respect of a person only if it is satisfied that—

(a) the quality of any evidence given by the person, or

(b) the level of co-operation given by the person to any party to the proceedings in connection with that party’s preparation of its case,

is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.

(6) In determining whether subsection (5) is satisfied, the court must in particular take into account—

(a) the nature and alleged circumstances of the offence to which the proceedings relate;

(b) the age of the person;

(c) such of the following as appear to the court to be relevant—

(i) the social and cultural background and ethnic origins of the person,

(ii) the domestic, educational and employment circumstances of the person, and

(iii) any religious beliefs or political opinions of the person;

(d) any behaviour towards the person on the part of—

(i) an accused,

(ii) members of the family or associates of an accused, or

(iii) any other person who is likely to be an accused or a witness in the proceedings.

(7) In determining that question the court must in addition consider any views expressed—

(a) by the person in respect of whom the reporting restriction may be made, and

(b) where that person is under the age of 16, by an appropriate person other than an accused.

(8) In determining whether to make a reporting direction in respect of a person, the court must have regard to—

(a) the welfare of that person,

(b) whether it would be in the interests of justice to make the direction, and

(c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.

(9) A reporting direction may be revoked by the court or an appellate court.

(10) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.

(11) The court or an appellate court may only make an excepting direction if—

(a) it is satisfied that it is necessary in the interests of justice to do so, or

(b) it is satisfied that—

(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and

(ii) it is in the public interest to remove or relax that restriction.

(12) No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.

(13) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.

(14) An excepting direction—

(a) may be given at the time the reporting direction is given or subsequently, and

(b) may be varied or revoked by the court or an appellate court.

(15) For the purposes of this section—

(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;

(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006.

(16) In this section—

(a) “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;

(b) “appropriate person” has the same meaning as in section 50;

(c) references to the quality of evidence given by a person are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a person’s ability in giving evidence to give answers which address the questions put to the person and can be understood both individually and collectively);

(d) references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.”

(3) In section 49 (offences under Chapter 4)—

(a) after subsection (1) insert—

“(1A) This section also applies—

(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;

(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court.”, and

(b) at the end insert—

“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication

that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”

(4) In section 50 (defences)—

(a) after subsection (6) insert—

“(6A) Where—

(a) a person is charged with an offence under section 49, and

(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),

it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.

(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and

(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”

140: After Clause 68, insert the following new Clause—

“Reporting restrictions in proceedings other than criminal proceedings

(1) Section 39 of the Children and Young Persons Act 1933 (power to prohibit publication of certain matter in newspapers) is amended as follows.

(2) In subsection (1)—

(a) after “any proceedings” insert “, other than criminal proceedings,”, and

(b) after “direct that” insert “the following may not be included in a publication”.

(3) In subsection (1)(a)—

(a) omit “no newspaper report of the proceedings shall reveal”, and

(b) omit “, or include any particulars calculated to lead to the identification,”.

(4) In subsection (1), after paragraph (a) insert—

“(aa) any particulars calculated to lead to the identification of a child or young person so concerned in the proceedings;”.

(5) In subsection (1)(b)—

(a) for “no picture shall be published in any newspaper as being or including” substitute “a picture that is or includes”, and

(b) omit “as aforesaid”.

(6) In subsection (2), for “publishes any matter” substitute “includes matter in a publication”.

(7) After subsection (2) insert—

“(3) In this section—

“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include a document prepared for use in particular legal proceedings;

“relevant programme” means a programme included in a programme service within the meaning of the Broadcasting Act 1990.”

(8) In the heading of that section, omit “in newspapers”.

(9) After that section insert—

“39A Prohibition on publication of certain matters: providers of information society services

Schedule 1A makes special provision in connection with the operation of section 39 in relation to persons providing information society services.”

(10) In section 57(3) of the Children and Young Persons Act 1963 (extending section 39 of the Children and Young Persons Act 1933 to Scotland) after paragraph (a) (but before “and”) insert—

“(aa) as it extends to Scotland, the said section 39 has effect as if the references to a publication were references to a newspaper;”.

(11) In consequence of the amendment made by subsection (2)(a), omit paragraph 2 of Schedule 2 to the Youth Justice and Criminal Evidence Act 1999.

(12) Subsection (2)(a) does not affect the operation of section 39 of the Children and Young Persons Act 1933 in relation to criminal proceedings instituted before the day on which it comes into force.

(13) For the purposes of subsection (12)—

(a) proceedings other than proceedings on appeal are instituted when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;

(b) proceedings on appeal are instituted when the notice of appeal is given or the reference under section 9 or 11 of the Criminal Appeal Act 1995 is made.”

141: After Clause 68, insert the following new Clause—

“Reporting restrictions: information society services

Schedule (Reporting restrictions: providers of information society services) makes special provision in connection with the operation of the following in relation to persons providing information society services—

(a) section 39 of the Children and Young Persons Act 1933;

(b) section 49 of the Youth Justice and Criminal Evidence Act 1999 as it applies to a publication that includes matter in contravention of a direction under section 45A(2) of that Act.”

142: Before Clause 69, insert the following new Clause—

“Representations to Parliament by the President of the Supreme Court

(1) Section 5 of the Constitutional Reform Act 2005 (representations to Parliament) is amended as follows.

(2) At the beginning insert—

“(A1) The President of the Supreme Court may lay before Parliament written representations on matters that appear to the President to be matters of importance relating to the Supreme Court or to the jurisdiction it exercises.”

(3) In subsections (2) and (3), for “those matters” substitute “the matters mentioned in subsections (A1) and (1)”.”

143: Before Clause 69, insert the following new Clause—

“The supplementary panel of the Supreme Court

In section 39(4) of the Constitutional Reform Act 2005 (circumstances in which a judge of the Supreme Court becomes a member of the supplementary panel), after “while he holds such office” insert “or within 2 years of ceasing to hold such office”.”

Amendments 139 to 143 agreed.

Amendment 144

Moved by Baroness Howe of Idlicote

144: After Clause 69, insert the following new Clause—

“Giving evidence at remote sites

In the Youth Justice and Criminal Evidence Act 1999, after section 30 (aids to communcation) insert—

“30A Giving evidence at remote sites

(1) A special measures direction may provide for persons eligible for assistance under section 16 (witness eligible for assistance on grounds of age or incapacity) to give evidence at a remote site.

(2) For the purposes of this section, any facility may be designated as a remote site where the court is satisfied that all of the following criteria have been met—

(a) the facility must be suitable for hearing evidence;

(b) the facility must be absent from the court building;

(c) the location of the facility must be appropriate to meet the needs and promote the welfare of the witness; and

(d) the arrangement must not prevent the witness from being able to see, and to be seen by—

(i) the judge or justices (or both) and the jury (if there is one);

(ii) legal representatives acting in the proceedings; and

(iii) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.””

Baroness Howe of Idlicote (Crossbench)

My Lords, I will speak to Amendments 144 and 145 together, as they both concern the use and availability of special measures for child victims and witnesses during a criminal trial. The amendments relate specifically to remote live link sites, which allow children to give their evidence away from a court building and with registered intermediaries —communication professionals who help children communicate with the police, legal representatives and the court.

These new clauses are supported by the NSPCC, Barnardo’s and Victim Support. I am sure that noble Lords will agree with me that never before has such a stark spotlight been shone on child abuse, with increasing numbers of victims coming forward and arrests made. It is clearly important that we should be doing everything in our power to support child victims and witnesses to give their best evidence and minimise the trauma of their court experience. NSPCC research found that more than half of young witnesses experienced stress symptoms ranging from sleeping and eating problems, to depression, bed-wetting and self-harming. A child’s evidence can be crucial in deciding the outcome of a case. Where this involves sexual abuse, they are often the only witnesses. However, the current special measures designed to support children in these circumstances are being used too inconsistently.

The purpose of these new clauses is to highlight the urgent need to increase their use and availability. The new clause proposed in Amendment 144 requires the availability of a remote videolink site away from court for all young witnesses. I share the view of the NSPCC that a criminal court is not an appropriate place for a child and that no child should give evidence in a court building unless they expressly wish to do so. The hostility, unfamiliarity and alien nature of the court and the proximity of the defendants and their supporters all serve to make a child’s experience far more traumatic. This can increase the likelihood of a child failing to give their best evidence and justice not being served. Indeed, in some cases children are so upset by their time in court that they are unable to give their evidence at all.

It is now 25 years since the landmark Pigot report recommended that children should give evidence in surroundings and circumstances that do not intimidate or overawe them, and yet a recent FOI request by the NSPCC showed that there are currently only a handful of remote sites across England and Wales where children

can give evidence by videolink away from court. Judge Pigot’s recommendations were made in 1989, well before the dawn of the digital age. It does not seem right that in 2014, when people are able to make video calls to the other side of the world in a matter of seconds and prisoners routinely give evidence from their cells, that still only 1% of children have the option of giving evidence away from a court building. Establishing a remote link is not prohibitively complex and can cost as little as £10,000 to £12,000.

I welcome the Government’s recent commitment to ensuring that there is one remote site in each court region by March 2015. That is a welcome step in the right direction but there are only six court regions across England and Wales. This commitment is nowhere near the level of ambition we should expect for our most vulnerable victims. My amendment would ensure that remote sites are available to all children who require one. I would welcome clarity on the Government’s commitment to remote sites beyond establishing one in each court region.

In their recent package of measures for victims, the Government announced the rollout of pre-recorded evidence. This will undoubtedly make a huge difference to vulnerable children, reducing the delay and trauma involved in giving evidence during a live trial, but will the Minister give his assurance that children will be able to pre-record their evidence at a location away from a court building? I see no reason why remote sites should not be routinely used for this purpose, but this will require a concerted effort to increase their number.

The new clause proposed in Amendment 145 requires the availability of registered intermediaries for all children under 11 years of age—another valuable special measure which child witnesses are eligible for but which is used far too infrequently. Even bright, normally developing children find court communication methods and language challenging simply because of their age. Research has shown that 90% of children under the age of 10 reported being unable to understand the questions they were asked in court.

An intermediary is an officer of the court who facilitates communication between vulnerable witnesses and the criminal justice system. Unfortunately, just 3.8% of young witnesses in England and Wales have access to a registered intermediary to help them understand what is happening during a trial. This stems from a stark shortage in numbers and a low awareness of the benefits of the service within the criminal justice system. Judges widely agree that RIs provide enormous value to the handling of cases involving young witnesses. Yet, astonishingly, there are fewer than 75 in England and Wales to support the 21,000 children giving evidence each year. Even after accounting for a recent recruitment drive by the Ministry of Justice, we are still a very long way from a sustainable service which addresses the level of need.

I hope the Minister will commit to further recruitment of registered intermediaries and will clarify what steps the Government are taking to address the long-term challenges facing the service and ensure that every

child victim has access to it. I hope that in his reply the Minister will clarify the government vision for expanding the availability of both these special measures for children. Surely this is the moment for the Government to take a leading role in improving the treatment of young victims and witnesses. We cannot afford to wait another 25 years to ensure that the right support is in place for our most vulnerable children. I beg to move.

Lord Hope of Craighead (Judge)

My Lords, I want to make one or two points about Amendment 145, based upon my experience as a prosecutor taking evidence from very young children. One has to bear in mind that not every case in which a child is giving evidence is a case of child abuse. Some of them may be cases such as theft or something of that kind where the child is an essential witness but in no sense has been traumatised by the event about which they are speaking. One has to be a little careful about spreading the protection wider than is necessary.

The other point is that, speaking from my experience of prosecuting before juries, it is extremely important that juries should have an opportunity to assess the credibility of the child witness. I recall a particular case where I led evidence from a child aged six who was completely convincing and apparently unconcerned about the surroundings in which she was giving her evidence. The fact that she was so obviously credible made all the difference in securing a conviction against somebody who had in that case abducted her. I am a little nervous about intermediaries because that reduces the impact of the utter frankness which this little girl displayed when she was describing what happened to her. She could not, for obvious reasons, give a full account of all that was done to her because she did not have the language, but her account was absolutely gripping, and the jury, I could feel, sensed immediately that she was undoubtedly speaking the truth. It would not have been nearly so obvious if there had been some kind of protection around her.

There may be cases where the protection is essential; there may be others where it would be unwise if convictions are to be obtained. I am sure the Government will wish to think very carefully about the extremely important points that have been raised. It does require quite careful scrutiny.

Lord Ashton of Hyde (Conservative)

My Lords, I thank the noble Baroness, Lady Howe, for waiting so long to express her views on this issue to the House and her commitment to these issues. If I understand her intention correctly, she is seeking to introduce, through Amendment 144, a new clause which would provide for the use of remote sites for certain young witnesses and, through Amendment 145, to mandate the use of intermediaries for witnesses under the age of 11.

I first reassure the noble Baroness and this House that the Government take seriously the support of victims and witnesses across the criminal justice system. Indeed, special measures are already available to assist vulnerable and intimidated witnesses in court, including all witnesses under 18 years old. These measures can include screens round the witness box to shield the witness from the defendant, evidence by live link and

the use of a registered intermediary or communications specialist to ensure that the witness understands the questions being asked.

Children are automatically eligible for special measures to ensure that they are able to give their best evidence. The presumption is that in most cases children should give their evidence by video-recorded statement, which would be played during the trial as their evidence in chief. In addition, any further evidence or cross-examination will ordinarily be conducted via live link and the court may permit a supporter to be present. The aim is to minimise the number of times a child is questioned and to enable them to give evidence from outside the courtroom.

We fully support looking at other ways to help vulnerable and intimidated witnesses give their best evidence. We know that the court environment can be challenging for some witnesses and are exploring ways in which we can use remote links and developments in technology to help such witnesses give evidence from outside the court building.

On Amendment 144, I advise the House that a majority of Crown and magistrates’ courts already have the facilities that allow witnesses to appear by secure videolink from a different location to the trial court. The use of remote videolinks, and extending this to other non-court sites, will not require any new legislation. We have recently committed to establishing at least one non-court location in each court area for vulnerable witnesses to give their evidence, as the noble Baroness mentioned.

The noble Baroness asked what else we were doing in this regard. We are using live-link technology in piloting pre-trial cross-examination in Kingston, Leeds and Liverpool Crown Courts to help vulnerable witnesses give their best evidence. This has the advantage of sparing witnesses from the full courtroom atmosphere by allowing the cross-examination to take place before the trial, as well as allowing evidence to be given closer to the time of the event. The pilot will end this month, followed by an evaluation and decision early next year on any further rollout if the measure is successful.

On Amendment 145, I am afraid that the Government are not convinced that the mandatory provision of a registered intermediary is necessary or always helpful—this pertains to the point made by the noble and learned Lord, Lord Hope. Intermediaries and other special measures should be used based on a witness’s assessed needs rather than offering blanket provision to any group. Witnesses retain the right to decline the offer of assistance from an intermediary if they do not want this assistance. We must instead ensure that witnesses receive the right type of special measure and that they are fully informed and supported, especially young children.

We are working closely with our partners in the criminal justice system to ensure that a witness’s need for a registered intermediary is identified. We continue to assess regularly the capacity of the intermediary workforce to ensure that we can plan for and meet demand. This includes considering future plans to increase the number of intermediaries available. We know that the demand for registered intermediaries

is steadily increasing and is at its highest level since the start of the scheme 10 years ago, which is very encouraging. We are working with the police and the CPS to improve identification of the need for registered intermediaries for vulnerable witnesses in addition to assessing workforce capacity given the current demands for the scheme. This would include planning for future recruitment campaigns. On the details of Amendment 145, I can assure the noble Baroness that intermediaries must be screened by the Disclosure and Barring Service and meet a number of other criteria before joining the witness intermediary scheme.

I recognise and support the sentiments behind the amendments. However, in the light of our work in this area, the Government do not feel that either is necessary. In the light of my explanation, I hope that the noble Baroness will reconsider her position and not press her amendments.

Baroness Howe of Idlicote (Crossbench)

My Lords, I thank the Minister for the attention that he has given to both the amendments. I also thank the noble and learned Lord, Lord Hope, for what he said.

It is encouraging to hear that the Government are doing their best to increase the number of registered intermediaries, but one would need to know a little more about just how fast it is likely to happen. Obviously, I will read carefully what has been said by everyone in this debate. For the moment, I will withdraw my amendment, but it is possible that we will be back with another comment at a later stage.

Amendment 144 withdrawn.

Amendment 145 not moved.

Consideration on Report adjourned.