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The YOIs clearly are not settings specifically applicable to children and their use for custody for children should be stopped. It is a goal that will be hard to achieve with the currently unjustifiable high level of children’s custody and there should be a drive to reduce the child custodial population. We hope that this amendment will find favour with your Lordships and that, as a result, no person under 18 shall be detained any longer in a young offender institution. I beg to move.
The Earl of Onslow: My Lords, it seems to me mad that we are not much more careful about sending young people aged under 18 to prison. I know that I said this on the previous amendment, but I shall probably say it again and again, because it is mad. It is counterproductive and does not do any good. The only way anything can be done for these wretched children is through education and care, with attention to their mental health, their drug problems and so on. They should not be banged up in adult prisons under any circumstances whatever. In the 21st century, we should not be doing that and we are not a civilised country if we go on doing it. For those reasons, I support the Liberal Democrats. The less we do it, the cheaper it will be. Possibly, we would keep a few more out of permanent trouble, which is what we should always be trying to do.
Baroness Howe of Idlicote: My Lords, I supported this amendment on the previous occasion and of course I do so now. It is absurd that 18 should be thought to be the right age for this. Some 18 year-olds are really childish, while others may only think that they are big guys. To place them in accommodation with hardened criminals does not make any sense.
The other point made by the noble Lord, Lord Thomas of Gresford, concerned the background of these children. It has taken a long time to get the whole business of how they are treated and how they are restrained looked at, but even now it has been put
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Baroness Butler-Sloss: My Lords, I am one of those to whom my noble friend referred as having previously spoken on this. I do not think that it is necessary for me to say anything other than that I support the amendment.
Lord Elystan-Morgan: My Lords, I, too, support the amendment. As have so many Members of your Lordships’ House on so many occasions, I point out that we in England and Wales bear the legal shame so far as western Europe is concerned on the incarceration of children. I have said many times before, and I make no apology for repeating it, that on a pro rata basis we incarcerate more children than Germany, France, the Netherlands and Norway put together.
There are huge problems, of course. If these young people are not to be incarcerated in the institutions that exist at the moment, where are they to be put? In many cases local authorities do not have secure accommodation facilities for children and young persons, so if the only practical alternative is to place them in children’s homes, I can see the problem; indeed, it was articulated by the noble Lord, Lord Bach, in relation to the earlier amendment.
The question is therefore what might be called contaminatory influences. If a 17 year-old is placed in a children’s home with children of the age of 11 upwards, how much contamination is experienced and suffered by the younger ones through that person’s presence? If, on the other hand, that 17 year-old is placed with an 18 year-old in a different sort of institution and where the 18 year-old may well be a much more shell-backed criminal altogether, how do we gauge that level of contamination? I appreciate that it is a difficult issue. However, I applaud the general principle that we should use every possible artifice, exercise our imagination and expend all our energy to ensure that we send fewer children to prison.
Viscount Tenby: My Lords, I support strongly what my noble friend Lord Elystan-Morgan has just said. In fact, we are not talking about sending children aged 18 to adult prisons. As I understand it, the amendment concerns secure accommodation, young offender institutions and secure training centres. But what my noble friend has said is absolutely right: it is a question of the lack of resources at the local level for local secure accommodation. That is what is needed. One or two people have to be taken away from the community; there is no doubt about that. I do not know how many noble Lords have been, as I have, to young offender institutions and to secure training centres. I have been to both. They are not the dreadful places that they are made out to be. The standard of some of the staff is extremely high. However, the basic fact is that sufficient resources are not available at the local level for secure local authority places.
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5.30 pm
Lord Bach: My Lords, Amendment No. 81 is similar to the amendment moved by the noble Baroness, Lady Linklater, in Committee. We had a full and passionate debate then, as we have had this afternoon in perhaps a smaller way. A number of concerns were expressed, with the emphasis very much on what remains to be done.
Let me point out briefly what the Government have done over the past few years to ensure that young people under 18 are accommodated entirely separately from young adults and older prisoners. Perhaps the key development was the decision in April 2000 to give the Youth Justice Board responsibility for oversight of the secure estate for children and young people. The board immediately established a discrete estate for boys under 18—in other words, one in which they did not have contact with anyone in custody over that age. It was, and is, a diverse estate, comprising young offender institutions, secure training centres and secure children’s homes—three different types of accommodation catering for differing age groups and differing levels of vulnerability.
Achieving similar separation for girls was much more difficult. Compared with the number of boys in custody, the number of girls is low. That presented problems if we were to succeed in providing establishments of adequate size in reasonably distributed locations. Anyone who was there will not forget hearing the noble Lord, Lord Ramsbotham, who is not in his place today, speaking to the equivalent amendment in Committee and recalling his horror at finding 15 year-old girls in Holloway prison when he inspected it in 1995 in his role as Her Majesty’s Chief Inspector of Prisons. The Committee agreed that that was not acceptable. Claiming a small amount of credit for the present Government, I should say that they are to be congratulated in small part on taking the steps necessary to ensure that that does not happen now. That was done by means of a phased programme, first removing all girls under 16 from Prison Service accommodation, then removing all girls under 17 and finally building a series of new special units for 17 year-old girls. Those units have a particular focus on the needs of the young women whom they accommodate and have been favourably reported on by Her Majesty’s inspectors.
The current amendment proposes a single type of establishment for all young people under 18. The Government do not believe that that is either workable or desirable. Just as it was right to separate under-18s from over-18s, it is necessary to keep older teenagers apart from younger ones—indeed, in some ways, the difference between the average 14 year-old and the average 17 year-old is far greater than that between many 17 and 18 year-olds. We do not believe that appropriate separation is possible without a range of types of establishment.
The diversity of the under-18s estate is a strength and not a weakness. That is not to say that the present arrangements are the last word; clearly there is scope for continued development in the field. For example, ministerial colleagues and I have referred to the work that is being done at Wetherby to build a new special
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I am advised that it is arguable—no more than that—that, because of a drafting error, the new clause that is this amendment would not achieve its intended effect of removing the Secretary of State’s power to specify by order additional types of custodial establishment in which a detention and training order could be served, a power that, if it still remained, could be used to reinstate young offender institutions and secure training centres. I mention that because it would be wrong of me not to say that I had received that advice. Because of the general arguments that I have employed this afternoon, I ask the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: My Lords, I am grateful to the Minister for his reply. However, we think that there is a basic principle involved and that the provision put forward by the Government is not sufficient. I am grateful to all noble Lords who have spoken on the amendment. I particularly recall the noble Lord, Lord Elystan-Morgan, referring to our position in the league of shame in Europe. It is important that we should mark our disquiet and our feeling that what is happening at the moment is unacceptable, whether it relates to young offender institutions or secure training centres. No doubt those institutions contain people who are concerned and who work hard to achieve results with young people, but one of the problems is that, as those staff are within the Prison Service, they look for promotion upwards into the adult Prison Service. Some of the specialisation and talents that they develop within the YOIs and STCs are lost. For those reasons, we feel that it is necessary to test the opinion of the House on the issue.
5.37 pm
On Question, Whether the said amendment (No. 81) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 124.
Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ashdown of Norton-sub-Hamdon, L.
Barker, B.
Bledisloe, V.
Bradshaw, L.
Butler-Sloss, B.
Carey of Clifton, L.
Chidgey, L.
Chorley, L.
Cobbold, L.
Cotter, L.
Craigavon, V.
Dholakia, L.
D'Souza, B.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Finlay of Llandaff, B.
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Glasgow, E.
Goodhart, L.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Hooson, L.
Howarth of Breckland, B.
Howe of Idlicote, B.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lloyd of Berwick, L.
Low of Dalston, L.
Luce, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Meacher, B.
Miller of Chilthorne Domer, B.
Neuberger, B.
Onslow, E.
Ramsbotham, L.
Redesdale, L.
Roberts of Llandudno, L. [Teller]
Roper, L.
Russell-Johnston, L.
Shutt of Greetland, L. [Teller]
Slynn of Hadley, L.
Smith of Clifton, L.
Southwark, Bp.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Williams of Crosby, B.
Williamson of Horton, L.
Young of Hornsey, B.
Acton, L.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Craig of Radley, L.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Dubs, L.
Evans of Parkside, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Malloch-Brown, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Newcastle, Bp.
Palmer, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
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Rogan, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Gilmorehill, B.
Snape, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Vadera, B.
Wall of New Barnet, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Young of Norwood Green, L.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
5.48 pm
Clause 55 [Extension of powers of non-legal staff]:
Lord Kingsland moved Amendment No. 82:
“(1A) A person designated under subsection (1) shall only be permitted to carry out any legal activity as defined by section 12 of the Legal Services Act 2007 (c. 29) if he has been authorised so to do by a body which is designated as an approved regulator by Part 1 of Schedule 4 of that Act or under Part 2 of that Schedule (or both) and whose regulatory arrangements are approved for the purposes of that Act.””
The noble Lord said: My Lords, I move Amendment No. 82 and speak to the other amendments in the group. The general issue raised by these amendments is under what circumstances non-legally qualified CPS employees could appear in certain classes of contested summary cases in magistrates’ courts.
Two issues divide the Opposition from the Government. First, what provision is needed in the Bill to ensure that the summary cases dealt with by non-legally qualified CPS employees should not carry with them a term of imprisonment? Secondly, as a consequence of getting this new power, should these non-legally qualified CPS workers fall within the full purview of the Legal Services Act 2007, passed less than a year ago? This matter was fairly fully debated in Committee, and since then the noble and learned Baroness the Attorney-General very kindly met the noble Lord, Lord Thomas, and me to see whether some resolution could be found to these two issues. Subsequently the noble and learned Baroness has also written to me explaining why that was not possible. I believe that she has copied this letter to the noble Lord, Lord Thomas.
The first issue is the question of limiting the powers of these non-qualified CPS employees to summary offences which do not carry a term of imprisonment. Our view is that this should be firmly on the face of the Bill. The noble and learned Baroness says that this is not necessary; that if the scheme worked satisfactorily, it would in effect petrify the Government’s opportunity to elide summary offences which did indeed carry a term of imprisonment. She believes—and this is no disrespect to her rigorous analysis of any situation before she makes a decision—that if the CPS makes the proposal that now is the time, the fact that she would have to give her imprimatur, or that her successor would have to give the imprimatur, would be enough.
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Had that undertaking been given to me 10 years ago, I might have been more sanguine about the scheme. However, I recall that the Government proposed in the Access to Justice Act 1999 that qualified CPS lawyers should be able to become advocates in the Crown Court. I recall the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, saying that there was no need to worry because CPS lawyers would be advocates only in circumstances where there was a shortage of members of the Bar, and that these would be only very minor cases.
What do we see today? We see the CPS advertising for experienced advocates to carry cases through from their initiation right to the moment when they make speeches to the jury. I have read recently the director of the CPS saying that in some parts of the United Kingdom he would expect, over a period of time, 25 per cent of criminal cases to be prosecuted in the Crown Court by CPS employees. This was never intended to be under the Access to Justice Act. I know that the noble and learned Baroness always strives to meet her undertakings; but with the best will in the world, I simply do not believe in an undertaking of the sort that she suggests.
This limitation must be in the Bill. If in five years’ time the scheme works so well that we are convinced that we can move on, then there will be plenty of opportunities to change matters in a future criminal justice Bill. After all, I shall be amazed if there is not one such Bill every year for the next five years and probably for the next 10 years. I do not think it depends on which Government are in power. Just as night follows day, I think it is close to being that predictable. So that is the first issue.
Secondly, if we are going to extend this right to non-qualified CPS workers, should they be regulated, as are all qualified lawyers, under the Legal Services Act, and in particular, should they be regulated by an approved regulator? The noble and learned Baroness, when we had our meeting with the noble Lord, Lord Thomas, explained how she was developing a scheme with ILEX—the organisation which looks after legal executives—so that non-qualified CPS employees should be able to sign up to the principles of ILEX. I do not think that the negotiations are yet complete, but the idea is that they would slot into the Legal Services Act at that point. I came away from the meeting with the impression—I cannot speak for the noble Lord, Lord Thomas—that once that deal was done with ILEX, the CPS employees themselves would then be regulated by the approved ILEX regulator.
It turns out from the noble and learned Baroness’s letter that that is not so. She reminded us that this class of employee’s rights of audience at the court are granted under Section 77A of the Prosecution of Offences Act 1985, and she went on to remind me that, as such, they are specifically excluded from the Legal Services Act 2007 by virtue of paragraph 1(3)(b) of Schedule 3.
I simply do not regard this as satisfactory. If this class of CPS employee is effectively to perform to the same standards as ILEX, why on earth should they not be regulated by the same person who regulates
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I believe that for both those compelling reasons—a limitation to non-imprisonable offences in the Bill, and the requirement that non-qualified CPS employees should be subject to an approved regulator under the Legal Services Act—our amendment should be supported. I beg to move.
Lord Thomas of Gresford: My Lords, we on these Benches support this amendment. The noble Lord, Lord Kingsland, referred to the meeting that we had with the noble and learned Baroness the Attorney-General. She was good enough to write to me on 14 March. I assume that she sent a copy to the noble Lord, Lord Kingsland. She set out in her letter the way in which designated caseworkers are trained at the present time. That training involves training courses, e-learning—which I take to mean dealing with various questionnaires put on the internet—observation of court procedures and a comprehensive resource pack.
The candidates have a five-day foundation course, after which they are expected to take the e-learning module and attend a further one-day, face-to-face training course. Thereafter they have to do 16 CPD—continuing professional development—hours a year. Very properly, I have to do 12 hours of continuing professional development each year. I know nothing about the legislation that goes through this House, of course. That is about it: a five-day foundation course, a certain amount of experience in court watching what goes on for a period of time and a one-day further course. On that basis they are to be entitled to appear in court to carry out contested cases.
6 pm
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