Introduction

1.  The state has a duty to ensure that detained young people and STC staff are protected from abuse or violence. It is therefore incumbent on the state to take positive steps to ensure that detainees and staff are not injured by other detainees, and conversely that detainees are not injured by staff. (Paragraph 29)

2.  We are dissatisfied by the Minister's explanation of how current policy and practice comply with human right standards. The Minister appears to be suggesting, first of all, that the state is not required to comply with General Comments of the UN Committee on the Rights of the Child, and simply with the Convention itself. While this may be strictly correct as a matter of international legal obligation, we are very disappointed by the Government's apparent lack of respect for the interpretations of the UNCRC by the UN Committee in its General Comments. We regard these comments as being fundamental to an understanding of the State's obligations under the UNCRC. (Paragraph 30)

3.  The Minister also appears to distinguish between the use of force or restraint and the application of violence. Such a distinction does not feature in human rights law. The key question is whether the use of restraint can be justified in the circumstances. Whilst the Minister robustly states that the Government does not sanction violence against children, this is exactly what current legislation permits, albeit using the terminology of "force" rather than violence. We start from the premise that violence against children should be avoided unless absolutely necessary and that very weighty justifications are required to demonstrate the need for force in individual cases. (Paragraph 31)

4.  On average, restraint is used on ten occasions per child per year. (Paragraph 32)

5.  We have not been able to establish conclusively why the phrase "good order and discipline" was not included in the original STC Rules, but we think it is entirely reasonable to infer from its absence that it was deliberately omitted, and that the reason for that omission was that it is inappropriate in the context of detention of children. Children and young people in detention are in a uniquely vulnerable position. Whilst everyone in detention must be treated with dignity and respect, children in detention have particular needs, distinct from the adult prison population, given their age and stage of development. The use of violence on vulnerable children and young people in detention can rarely be acceptable and risks breaching international human rights standards. (Paragraph 42)

6.  Whilst we accept that the Human Rights Act 1998 does not require the Government to make a formal Section 19 statement of compatibility for statutory instruments, we consider it to be a matter of good practice for human rights considerations to be addressed in Explanatory Notes and Memoranda where necessary. This should not be an onerous requirement since the Government ought to have conducted an assessment of the human rights impact of the statutory instrument before introducing it. In areas where fundamental human rights are engaged (as they are here), we take the view that secondary legislation should always be accompanied by a statement as to compatibility with the ECHR setting out the reasons why the Government considers the instrument to be compatible. Where secondary legislation raises significant human rights implications, we would expect to see sufficient analysis to facilitate effective parliamentary scrutiny. (Paragraph 45)

7.  In our view, the Amendment Rules, rather than clarifying the position, have themselves created more confusion. It is clear from the evidence that we have received, and the strength of feeling expressed, that the Rules are potentially open to a wider interpretation than was previously the case. Given the fundamental rights that are at stake, this is unacceptable. (Paragraph 54)

8.  At face value, the Amendment Rules introduce a new concept, that of "good order and discipline," into the circumstances in which STC staff can use restraint. We agree with the High Court that the Amendment Rules are more than a simple clarification of pre-existing law. Indeed, the contracts we have seen with two of the STCs make this plain. In our view, the Amendment Rules now appear to permit staff a very wide discretion to determine the extent to which the use of force is necessary for "good order and discipline" and give detained young people less certainty as to the circumstances in which force may be used against them. There is a very real possibility that the Amendment Rules will lead to the use of restraint, not only when staff must take steps to protect others (whether other staff or young people), but where there is no danger to others or risk of escape. Indeed, this was demonstrated by the actual example given to us in evidence by the YJB, in which restraint was used on four boys who were not causing or threatening harm to themselves or others but were refusing an instruction to go to bed. In our view, the use of force in such widened circumstances is unacceptable and unlawful, and in breach of both ECHR standards given domestic effect by the HRA and international human rights standards contained in the UNCRC. (Paragraph 55)

9.  Even if the Government's intention was merely to clarify the law, in our view there is a very serious risk that frontline staff will regard the change as either extending the circumstances in which they can use restraint or introducing considerable uncertainty about the circumstances in which they can do so. (Paragraph 56)

10.  The Amendment Rules pose the very real danger of entrenching in legislation ambiguity for staff and detained young people, the problem which both coroners sought to address. The phrase "good order and discipline" is imprecise, over-broad and inherently subjective. Far from achieving clarity about the circumstances in which physical restraint can be used on a child, as recommended by the coroner in the Rickwood case, instead it brings confusion. Recent events show that the use of force can lead to tragic results. It is therefore of paramount importance that the Rules governing its application leave no room for doubt. The Rules, as amended, do not achieve this. (Paragraph 62)

11.  Structural mechanisms need to be in place to ensure that high level commitments [not to permit the use of restraint as punishment or to secure compliance] translate into action on the ground. (Paragraph 66)

12.  Given the arguments which have arisen as to the purpose and effect of the Amendment Rules and the judgment of the High Court, we do not accept that consultation about the change was unnecessary or impossible. At the very least, a short period of consultation with specialist professionals working in this area should have taken place. This could have prevented some of the anxieties which have been expressed since the Rules came into force, and ensured that the Rules met the coroner's objectives and protect children's rights. (Paragraph 70)

13.  We were pleased to note that as at the date of our oral evidence session, there had been no instances of the use of restraint for good order and discipline since the Amendment Rules came into force. We urge the Government and the YJB to continue carefully to monitor the effect of the Amendment Rules; and in particular, to ensure that there is no increase in the number of restraints, and that the use of restraint for the purposes of "good order and discipline" is always strictly necessary and proportionate. (Paragraph 71)

14.  We recommend that the Government reports on a six monthly basis to Parliament on the number of restraint incidents, broken down by the specific purposes for which restraint was necessary. (Paragraph 72)

15.  The STC Rules need to be clear, so that staff know what they may lawfully do; detained young people and their families know how they may be treated; and resort to physical force only takes place when it is absolutely necessary to avert a risk of serious harm to others. For the reasons we have given above, we do not consider that the current Rules are sufficiently clear about when force can be used and, for that reason, they are both potentially in breach of the UK's human rights obligations on their face, and likely to lead to such breaches in practice when force is used in circumstances when it is not strictly necessary. (Paragraph 73)

16.  We recommend that the Amendment Rules be repealed and the scope of the current STC Rules clarified by Amendment Rules which make it explicitly clear that the use of physical restraint is not permissible for the purposes of good order and discipline. In our view, this would provide a more humane and transparent framework for the effective operation of STCs, which meets the coroner's objectives and protects appropriately the safety of all children in STCs. Any further amendment to the Rules should this time be preceded by a short period of consultation with the YJB, STCs, Children's Commissioner and expert NGOs, amongst others. It should also take account of up to date medical advice on the effect of restraint on the physical and mental integrity of detained children and young people. (Paragraph 74)

17.  We are pleased to note the establishment of a joint unit, which we hope will go some way to dealing with the coroner's concerns. We urge the unit to ensure that there is greater focus on child protection and the needs and rights of vulnerable children within the criminal justice system. The proposed Memorandum of Understanding should clarify the mutual roles and responsibilities of each of the bodies, to ensure that vulnerable children do not fall between them. We also hope that the new Unit will lead to better monitoring of the YJB and its performance, particularly during this period of transition as a new Chair comes into post. (Paragraph 80)

18.  We would encourage the widest possible review of the use of restraint against children and young people in a variety of settings and urge the Government and the YJB to consider the results of the review carefully and promptly and to publish the review's findings and the Government's response in a timely manner. (Paragraph 83)

19.  We welcome the re-establishment of the Medical Review Panel and seek the Government's assurance that it will now meet regularly and frequently, in order to keep the full range of PCC techniques under careful scrutiny. Following its current deliberations, we recommend that the Review Panel reports annually, at a minimum, on the medical safety of current PCC techniques. (Paragraph 84)

20.  We urge the Government to ensure that, as part of the medical review, the views of STCs and specialist organisations are considered, in particular to address any concerns from those being subjected to the use of force or implementing restraint techniques. (Paragraph 85)

21.  We are pleased to note that two techniques were suspended in December 2007, on the basis of medical advice. We recommend that the Government seriously consider the necessity and proportionality of restraint holds or techniques carrying a risk of death or serious injury. There can be no justification for practices which involve the deliberate infliction of pain, such as the so-called "distraction techniques", and we therefore recommend their abolition without delay. (Paragraph 86)

22.  We agree with [the Coroner's] recommendation [that every Statutory Incident Report involving the use of PCC should contain full details of what happened, statements by those involved, any injury to a trainee or to staff, reasons for the use of PCC and reasons why other means of dealing with the situation were not used or had proved unsuccessful. Such Reports should also include a statement by the trainee, and provide the opportunity for the trainee to report any injury]. (Paragraph 88)

23.  We find it astonishing that YJB Monitors, one of the safeguards relied on by the Government and the YJB for the safe use of restraint, have not until now routinely been trained on restraint procedures themselves. We recommend that this omission be urgently rectified. All YJB Monitors should receive initial training in restraint techniques and any YJB Monitors who have been trained previously should receive regular refresher training. There should be specific monitoring of the effect of the Amendment Rules both in quantitative (i.e. the number of restraints) and qualitative terms, with the reporting of results to this Committee and Parliament. (Paragraph 89)

24.  We recommend that human rights obligations be included in the body of any future contracts with STC providers and that Schedule H include compliance with human rights obligations within the performance measures under the contract. In addition, the YJB should write to existing STC providers to explain their human rights obligations and reiterate the expectations of the Secretary of State. (Paragraph 91)

25.  It is vitally important that operating instructions are clear, accessible, and provide worked examples of different situations, to demonstrate to staff how to determine if the force is or is not an action of last resort, and how to decide whether an action is necessary and proportionate. We recommend that the YJB actively monitor the local operating instructions, to ensure that they meet STCs' human rights obligations and accurately reflect the legal position. (Paragraph 93)

26.  We were pleased to hear the Minister's assurance that restraint is not permitted to enable STCs to meet educational or other targets. We urge the YJB to continue to pay close attention to any correlation between targets and restraint. (Paragraph 96)

27.  Requiring STCs to provide affected individuals with their restraint policies may assist staff and detained young people and their families and carers to understand when restraint may be used. In the absence of any countervailing argument (which we cannot discern), we see no good reason for keeping such policies secret. Indeed, it seems to us that Section 7 of the Rules already requires information on restraint to be provided to detainees and their families and carers. We recommend that this provision should be immediately implemented by STC operators. (Paragraph 99)

28.  Ensuring that staff are appropriately trained is vital in the protection of the rights of detained young people and children, particularly where restraint is permitted. This requires both frontline staff and their instructors to be absolutely clear on the circumstances in which restraint is permitted. We are concerned to hear that staff considered that there might be circumstances in which guidance need not be followed. We recommend that all staff working in STCs receive targeted and regular training in human rights principles and how they apply to their work, including the use of restraint. This should be included as a core training requirement in Appendix 7 of Schedule D to the standard contract with STCs. Further, all staff, whether or not they are already trained, should receive training, as a matter of urgency, on the effect of the Amendment Rules. Standard training should be regularly reviewed, to ensure that it remains accurate and up to date. Training of STC staff should be subject to supervision and monitoring by the Ministry of Justice. (Paragraph 103)

29.  Whilst we welcome the Government's commitment to amending the Code in the light of the review, we consider that it should have amended the Code when the Amendment Rules came into force, given the different ways in which the Rules can be interpreted and, therefore, the potential for ambiguity they create. We recommend that there be a presumption that the Code be amended whenever the Rules are amended, in order to ensure that there is no confusion in the minds of staff about the effect of any Amendments on what they are and are not permitted to do. As part of, or in addition to the Code, very detailed guidance needs to be provided to staff on the precise circumstances in which restraint may lawfully be used. (Paragraph 107)

30.  We recommend that the training manual (which should be disseminated to all STC staff who are authorised to use PCC, and all instructors and monitors) be regularly reviewed and, if necessary, updated to ensure that it remains current and accurate. Staff need to be absolutely clear about the circumstances in which restraint is lawfully permitted. The manual should make clear that violence is allowed only in narrowly construed circumstances. Furthermore, the manual needs to provide greater guidance to instructors about the core elements of which staff using restraint need to be aware and to follow, in order to ensure consistency and clarity across the STC estate. Finally, the manual should be updated as a matter of urgency to remove reference to the two suspended techniques. (Paragraph 112)

31.  We have examined the rationale for not publishing the manual in its entirety. We do not consider that the Minister or the YJB have made a convincing case for continuing confidentiality. We are also very concerned by the impossibility of scrutinising for human rights compatibility techniques of physical restraint which remain secret. We therefore recommend that the entire manual be made publicly available, including on the websites of the Ministry of Justice, the Department for Children, Schools and Families, the Youth Justice Board and the Prison Service. A full copy should also be placed in the libraries of both Houses. (Paragraph 113)

32.  Accessible guidance is needed for staff, so that they understand clearly the actions that they need to consider before they use force. This should not be a "tick box" exercise, but should enable staff to be confident that they are carrying out their work lawfully and with full respect for the rights of all those in their care. (Paragraph 117)

33.  We are concerned that the focus of the manual is on justifying staff action, rather than on explaining what happened, justifying the use of force as lawful and that, where it was not, ensuring appropriate action is taken and lessons learnt for the future. The manual appears to prioritise the needs of staff over the needs of detainees. We recommend that the YJB review the PCC manual to address these concerns. (Paragraph 118)