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The key to the amendment is the duty to ensure that a child’s well-being is considered. We know from a great deal of research that a large proportion of young children who receive detention and training orders have themselves suffered maltreatment and have a range of psychological and other vulnerabilities. We therefore wish to make sure that those are picked up at an early stage. We know very well that investment at this stage which may help to break the downwards spiral into adult offending is extremely important. We are concerned that suicide or harm to others is also a high risk for young people in safe accommodation and we are uncomfortably aware that problems with young offenders are a gift to the tabloid press and therefore the mix of accommodation provided, not too strong but not too weak, requires careful assessment as they come in.

The amendment’s purpose is to place as strong a duty as possible on those at an early stage of dealing with young offenders to look beneath the surface of the immediate problem, to look at a special educational needs assessment and a mental or physical health assessment to make sure as far as possible that we can pick up some of the underlying causes before it becomes too late. I beg to move.

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Baroness Anelay of St Johns: My Lords, I arise briefly simply to say that it is right that the matter is raised in the Bill’s context. I know that it is a matter that we have discussed on several occasions on Criminal Justice Bills in the past. That does not mean that it should not be raised again because it reflects the proper concern that noble Lords have with regard to the welfare of children.

The noble Lord, Lord Bassam of Brighton, will be all too aware that yesterday in the context of the UK Borders Bill I raised an amendment that would impose within the immigration system the duty to promote the welfare of children as under Section 11 of the Children Act 2004. I welcome the way in which the noble Lord, Lord Wallace of Saltaire, has moved the amendment, because it is right that we should continue to press the Government to try to work out the ways in which the needs of children and promoting the safety of children within the criminal justice system can be balanced against what we all want, which is maintaining the safety of the public. That is a theme of the later amendments to which the noble Lord, Lord Wallace, referred. This matter cannot be resolved at present, but we must continue to press it until we are able to find a solution.

I approach the matter from the point of view that children are children first and that at some stage they must come out of the criminal justice system and be responsible adults. If they come out in such a damaged way that they have no opportunity to act as

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a responsible adult, that is to the disadvantage of the whole of society. That is a glib thing to say, but it lies at the heart of what we are trying to achieve. Having made that point, I will not take part in the debates on the later amendments because that reflects my concern. I am going to try to pursue the matter, particularly through the UK Borders Bill, because there is a discrete matter there to which I hope we may be able to find a resolution. Within the context of this Bill, we will not find the answer.

Lord Ramsbotham: My Lords, I, too, support the amendment. I am extremely glad that the noble Baroness, Lady Anelay, has made those points because their great importance is having them in the Bill to remind people that our children must be treated as children. I say that bearing in mind my experience in trying to make this point as chief inspector when the provisions of the Children Act did not apply and it was alleged that they would be added to be applied in principle. That was not good enough and time and again one found that it was not happening. Therefore it is hugely important that it should be in the Bill and as the noble Baroness said it is right that things will flow from that if it is there, so I would like to see the amendment included.

Lord Judd: My Lords, I shall try to put this very important subject into a human context. I well recall the late Lady Lester telling me how she had visited a child in prison who had been involved in one of the most hideous crimes that had happened in many years. It was a really horrible story. She said that what really distressed her as she got to know the child through visiting her in prison was the discovery that that child had never been loved.

Baroness Howe of Idlicote: My Lords, I endorse the amendment. Children’s well-being is still not stressed as much as it ought to be even though we know increasingly that the child’s well-being and involvement in their own process needs to be taken much more seriously. Other points will be raised later, but I make that one now.

Baroness Scotland of Asthal: My Lords, I say to the noble Lord, Lord Wallace of Saltaire, that I think that the noble Baroness, Lady Linklater, will be very pleased with him for having represented her so well. We send her our best wishes because we know that she has difficulties with which to deal.

I very much agree with the comments of the noble Baroness, Lady Anelay, about the difficulties that we have in relation to children. They are children first but on occasion we have to deal with some of the most heinous offences which one or two of them commit. My noble friend Lord Judd is right to say that many of these children have never been loved by anybody. That is a tragedy for them. Therefore, we should pay the most acute attention to their welfare.

Courts dealing with children and young people are required to have regard to their welfare. That is provided for by Section 44 of the Children and Young

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Persons Act 1933. This amendment would additionally require them to have regard to the young person’s well-being, in the light of the factors listed in Section 10(2) of the Children Act 2004.

The distinction between welfare and well-being is an interesting, important and rather subtle one. The House will have extensive opportunities to reflect on it during consideration of Clause 9 of the Criminal Justice and Immigration Bill, to which the noble Baroness, Lady Anelay, referred, which was recently introduced in another place. I agree with her that that is probably the better place for these issues to be more fully debated. Clause 9 seeks to define the purposes of sentencing as regards young people under 18. It covers not only detention and training orders but all other forms of sentence for under-18s and therefore provides a more appropriate opportunity for consideration of this issue than the Bill we are considering today.

The amendment would also apply the duty to the provider of the establishment in which the young person was to be accommodated. Under Section 11 of the Children Act 2004, governors of young offender institutions, directors of secure training centres and local authorities are already required to have regard to the need to safeguard and promote the welfare of children. We consider that this clear duty, which covers all young people in custody and not only those who receive detention and training orders, is sufficient in itself. There is no case for a separate duty covering a less extensive range of young people in custody.

Therefore, I hope that the noble Lord will feel able to withdraw the amendment. However, I commend him and the noble Baroness, Lady Linklater, for always ensuring that this children’s issue—as the noble Baroness, Lady Anelay, said—is raised because it is important for us never to forget the importance of these issues. We shall deal with the other age groups on later amendments.

Lord Wallace of Saltaire: My Lords, I thank the Minister for that response. Perhaps we can discuss between now and Third Reading whether any small adjustments in the language of the Bill can meet some of these points. In the interests of not delaying the House on the next three amendments, I simply say that we must remember, with regard to this amendment and the three that follow, that the underlying purpose of the Bill is not just more effective offender management but also the reduction of reoffending and the size of the prison population. This applies in particular to the various special categories that we are dealing with and most to children coming into the offender management system for the first time. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ramsbotham moved Amendment No. 35:

(a) “, if the court has been notified by the Secretary of State that a remand centre is available for the reception from the court of persons or his class or description,”, and

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(b) “and, if it has not been so notified, it shall commit him to a prison.”(a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.(a) if the offender has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.(a) to a detention and training order, and(b) to a sentence of detention in a young offender institution,

The noble Lord said: My Lords, I make no apology for bringing back the amendment, which was discussed in detail last time. I was not present then and I read with considerable care the comments of the noble and learned Baroness the Attorney-General. I fully understand that there will not yet be a full examination of how 18 to 24 year-olds as an age-group might be considered because that will need establishments for 18 to 24 year-olds only, which will obviously take time and expense.

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In the mean time we have the problem of 18 to 20 year-olds. I accept that there are possible emergencies —something may happen and somebody has to act—but, bearing in mind that they are young offenders, it is not good enough to suggest that they may still go to prison without special provisions being made. I suggest that the Minister should consider requiring that no 18 to 20 year-old may be committed to an adult prison unless ministerial clearance has been given. In other words, if the Prison Service wishes for a particular purpose to put an 18 to 20 year-old in prison, it should do so only for a minimum period and must explain to the Minister why, and must seek ministerial permission to do so. That is one way of controlling the situation.

I say that because I will never forget my first visit to Holloway when the governor told me that there were four 15 year-olds in there but that they did not know where they were and that there were no provisions for them. Every time I went into Holloway I saw that there were children there who should not have been there and we have to prevent that. Such a suggestion, which might not be included in the Bill, could be considered within the Ministry of Justice. It is worth considering. In view of the amendment on which we voted earlier this afternoon, I am glad this amendment has been tabled again. I beg to move.

Lord Judd: My Lords, I very warmly support the amendment. My noble and learned friend has repeatedly reassured us—and it is good to have heard her say it—that the whole task of everyone involved in the legislation is rehabilitation. We know that there are too many examples where young people in the age group referred to have been sent to prison and that no progress with them is possible—in fact, there is a negative effect. I need not go into all those arguments now because my noble and learned friend knows them better than I do and I am sure that she shares the concern. Sometimes in public policy, if it becomes clear that something should not happen, so long as there are arrangements in place which say that in exceptional circumstances it can happen, a process of rationalisation can begin and that approach becomes the easy option. Sometimes one just has to say, “It will not happen”. The amendment does not say that; as the noble Lord has explained, prison could still happen in extremis, with ministerial approval. This is a desperately needed and long overdue measure. I support him completely.

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Baroness Scotland of Asthal: My Lords, I certainly understand the concern expressed by my noble friend Lord Judd and the noble Lord, Lord Ramsbotham; I am pleased that the noble Lord referred to the extensive debate that we had on the last occasion. He would then have read my Written Ministerial Statement on 8 May, in which I set out the actions we are taking in relation to offenders aged 18 to 24, both in custody and in the community. I think that there is general acceptance that that is probably the right bracket for us to look at, not least because of the differing rates of maturity and the difficulties that young people, who become young adults, face in that situation.

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It is important for us to look at the consequences of removing the power to place such people in prison. They would be far-reaching and unacceptable. I know that the noble Lord, Lord Ramsbotham, understands those consequences, and that he very much wants us to have a workable system. At the moment, I do not think that this is workable. I entirely agree that we need to give proper consideration to the needs of young adults; that is obviously what lay behind my Statement on 8 May. However, just as there is not much difference between a 17 year-old and an 18 year-old—as the noble Baroness, Lady Linklater, who is not in her place, said in Committee—there is little to separate the 20 year-old from the 21 year-old. It is of course necessary to have thresholds distinguishing “children and young people” from “young adults” and “young adults” from “adults”. The points at which we draw those lines are a matter of judgment and may be subject to change. We should not regard the age of 21 as a perpetually fixed point. The measures that I announced on 8 May cover 18 to 24 year-olds, so it would be odd if I were now to say that under-21s should never come into contact with anyone aged 21, 22, 23 or 24. That would put in tension and conflict the concept that we have just agreed—that that bracket is sensible for us to look at.

Of course we have to take steps to safeguard vulnerable young adults but the amendment, if enacted, would do nothing to achieve that. It would simply make the whole system unworkable. That is because, in a technical sense, all young people over 17 who are remanded to custody are “in prison”, though in reality they are likely to be in part of a young offender institution that has been formally designated as a prison for the purposes of the law. While the House shares the noble Lord’s concern for the welfare of young adults in prison, I am sure that it would not wish to add to existing operational difficulties.

The noble Lord, Lord Ramsbotham, raises an interesting suggestion as to whether there could be some form of ministerial oversight. I do not have the numbers at my fingertips at the moment, but I think that they might make that unworkable. However, I shall raise that with the Ministry of Justice. I recall that I would often ask for certain categories of cases to be referred to me, so that I had an overview of what had happened. It was not necessarily a case-by-case basis, but a report on how many and when, so that I could get a flavour. Maybe that could be in the contemplation. At the moment, the noble Lord’s suggestion does not simpliciter seem workable, but maybe we could look at something from a practical point of view that might assist, to hone in and make sure that the eye is kept on this ball. I would be happy to convey that to the Ministry of Justice.

Lord Ramsbotham: My Lords, I thank the noble and learned Baroness for her answer, particularly for the last part of it. She mentioned that there is not much difference between 17 and 18 and between 20 and 21. In fact, there is sometimes very little difference between 15 and 24, and it is very much on a case-by-case basis. Bearing in mind that we are talking about individual offenders, this is an

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individual matter. It may be that when you look at it there are some fairly robust youngsters for whom this is not likely to do damage, but the Prison Service hopefully will know who those people are, and it is those special cases that one worries about.

I am grateful that the noble and learned Baroness is prepared to investigate that. The fact that it is being investigated may send a message round and stop people doing it unnecessarily. Sometimes it is done for convenience rather that thought of the person. Those cases used to worry me. When I found this happening, and asked why they were there, they had just been sent there. I am enormously grateful for the care that was taken with the answer. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Lord Ramsbotham moved Amendment No. 37:

“Mental health diversion schemes(a) crown courts;(b) magistrates’ courts; and(c) police stations.(a) assessment by a qualified mental health nurse; and(b) if in the opinion of the mental health nurse the person charged is suffering from a mental health disorder, diversion from the criminal justice system towards treatment in a mental health facility.

The noble Lord said: My Lords, I am sorry about the repetitiveness. This amendment was also discussed in Committee, when the noble Lord, Lord Bassam of Brighton, raising the question of court diversion schemes, said:

He went on to say:

It was therefore very difficult to find one way that might bring about the court diversion schemes and police diversion schemes for the mentally ill that this amendment seeks.

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