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Lord Dholakia: My noble friend Lady Walmsley made an important point about the judgment given a year ago on an application for judicial review by the Howard League to which the Minister failed to reply. My noble friend mentioned the distinction between what the court decided about the welfare of the child and the responsibility of the agency to provide that welfare. This amendment misses that particular obligation. Nowhere in the Minister's explanations does he give any indication whether the judgment was considered by the Home Office and whether there is likely to be any appropriate legislation in the near future. If there is not, is it not right in this day and age that we have legislation that covers the duty and obligation of the agency, not just the welfare of the child?

Lord Bassam of Brighton: I apologise if I missed that point. I thought that I was making the general point throughout my reply. Of course, the welfare of the

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child is extremely important. It is at the core of our thinking and forms a part of the consultation documents that were published recently. I cannot comment specifically on whether the Home Office directly reflected its thinking on the particular case mentioned by the noble Lord when constructing the consultation documents, although I am sure that it will have done because that case clearly has an important bearing on the way in which these policy issues will develop in the future.

If there are particular points that I have missed, I would be happy to follow them up, perhaps in correspondence, which I would be happy to share with other noble Lords who have taken part in this debate and related debates.

6.30 p.m.

Baroness Walmsley: I thank the Minister for that response. I also thank the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Hylton, and my noble friend Lord Dholakia for their report. I am delighted to see that the noble Baroness, Lady Massey of Darwen, is in her place and that her other responsibilities have allowed her to be present for the Minister's response. I add my warm compliments to the noble Lord, Lord Warner, who is now a health Minister in your Lordships' House, on the sterling work that he did when he was chairman of the Youth Justice Board. It was at that time that he made the comments that I quoted.

The Minister said that he felt that we had the same objectives: I agree. However, he said the objective was to prevent offending and reoffending by children. He said that that should be the primary objective of the youth justice system, not the welfare of the child. Offending behaviour often occurs because the child's welfare has been compromised. Addressing the child's welfare would help to meet the Government's objectives for the youth justice system. I pointed out the shortcomings of existing law in that regard. I am not satisfied that the Minister has given an explanation that covers the reasons why we feel that the new clause is required.

I add my praise to that for the Green Paper Every Child Matters. It has the potential to make many improvements to the life chances of children in this country. I look forward to giving my response to it in the fulness of time. However, as I said, its weakness is that it covers only the sentencing system, not the whole system. With due respect, I do not believe that the Minister covered that point.

I was delighted to hear the Minister's restatement of the principle that custody should be the last resort for young people and for all offenders. However, the fact remains that numbers in custody are rising. Nobody is suggesting that custody should never be available for those who need to be taken away from the public because they are a danger. The fact that the number of young people in custody is rising must be recognised, and something must be done about it. I welcome the indication that the Minister gave that the principle is

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likely to be built into future legislation more clearly than it is at the moment. I look forward to seeing the Bill—I presume that that is what the Minister meant—that will follow the Green Paper in the fulness of time during the next Session of Parliament. We will have many conversations on the subject in the next 12 months.

I shall read with great care what the Minister said. On behalf of the noble Baroness, Lady Massey of Darwen, and myself, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dholakia moved Amendment No. 233A:

    After Clause 294, insert the following new clause—

No prison shall hold more prisoners than is provided for in its certified normal level of accommodation without Parliament being informed and then only when it is deemed safe to do so by the responsible authority."

The noble Lord said: One area of concern that was repeatedly reflected in the House, particularly at Second Reading and in several amendments, is the substantial increase in the prison population that will result from the Bill. We have an unacceptably high prison population. In many cases, it exceeds the CNA—the certified normal level of accommodation. Almost all disturbances in prisons are a direct result of overcrowding. In almost all cases of treatment or rehabilitation, we fail because of the unacceptably high prison population. Over 60 per cent of people reoffend within two years of discharge because the size of the prison population is not conducive to a rehabilitation or resettlement programme.

I do not wish to sound alarmist, but it is clear that there is a serious danger that control and discipline in our penal institutions will be a matter of serious concern, if we do not control the prison population. The purpose of our amendment is to prevent overcrowding in prisons.

Custodial sentencing is carried out with no regard to the facilities available to accommodate prisoners. It leads to the overcrowding of facilities, with serious consequences for the ability of the Prison Service to provide regimes of a sufficient standard. It also means that the activities of prisoners are reduced and that it becomes less possible to accommodate prisoners safely and humanely. In turn, those factors limit the capacity of the prison system to reduce the risk that prisoners will reoffend on release.

By legislating to prevent capacity in prisons being exceeded without parliamentary oversight and to allow it only when the Prison Service deems it to be safe, we will help to focus attention on the need to reduce unnecessary custodial sentencing. I beg to move.

Lord Renton: The noble Lord, Lord Dholakia, has raised an important matter, but it is not a new one. We must go back many years—to 1940. During World War II, no more prisons were built, and the Home Secretary—a Labour Home Secretary, I think—gave a

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ruling to those responsible for looking after the prisons that there should be three prisoners to a cell, not two, if more than one prisoner were admitted. That was a sound principle. It prevented homosexuality and has worked pretty smoothly.

In the years since, more prisons, especially open prisons, have been built, and the prison population has remained high. If the amendment moved by the noble Lord, Lord Dholakia, were made and the principle behind it put strictly into operation, some problem or other might arise. However, the noble Lord has made it easy for the matter to be dealt with by asking merely that Parliament should be informed. It is a matter that we should have in mind, and the Government should welcome the requirement to inform Parliament as a moderate solution to the problem.

Lord Hunt of Wirral: I support my noble friend Lord Renton and the noble Lord, Lord Dholakia. My noble friend is right to say that it is an important matter. He speaks from the position of having had a distinguished career as a Minister, particularly at the Home Office. The noble Lord, Lord Dholakia, speaks with the authority of the chairman of the National Association for the Care and Resettlement of Offenders. He has served on the councils for nearly 20 years and has been chairman since 1998. We have had an important discussion about a pressing issue, and I shall add my own concerns about the situation.

The Prison Reform Trust study, which was based on the Prison Service's data for England and Wales, was published recently—in July, I think. It showed that a serious situation was developing. For instance, the rate of positive drug tests rose to 11.7 per cent last year. The trust made it clear that that was happening in a range of areas as the system struggles to cope against a background of overcrowded gaols, leading to poor performance.

In 2002–03, we saw the highest number of suicides on record, with 105 gaol inmates taking their lives. Prisons in England and Wales also failed to meet their overcrowding target, with 20.4 per cent of the average population doubling up in single cells, against a Prison Service target of 18 per cent. In Shrewsbury, the most overcrowded gaol in England and Wales, there was an average of 91.1 per cent of prisoners doubling up. That situation cannot be allowed to continue, nor can it be allowed to deteriorate.

The report reveals a Prison Service in which performance is very seriously hampered by a record prison population. Far too many prisons are overcrowded, provide inadequate levels of purposeful activity and experience high levels of recorded drug use. The only way to improve the situation is to reduce the prison population and to extend facilities immediately. The noble Lord cleverly highlighted the problem by proposing that if a prison must be overcrowded, Parliament should be informed. We must have a safe environment in our prisons. I support my honourable friend and the noble Lord.

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