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I am eager to hear the Minister’s reply to the amendment, because I wonder on what grounds he will resist it. Will he oppose it because the Government wish to take actions that are against the best interests of the child? I doubt it very much. It is clear that making the best interests of the child paramount does not mean that we cannot pay regard to public safety. Clearly it is not in the best interests of a child to be violent to others or to make the lives of everyone in the neighbourhood a misery, but when we take action to stop that, surely we should take actions that help the child to grow up healthy and non-criminal. That is
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Secondly, should we not try to keep children out of the system, and out of custody, as far as possible? Would the Minister not agree with that, too?
Thirdly, I cannot imagine that the Minister envisages any situation in which it would not be right to treat a child with humanity and respect for his or her human dignity. I look forward to debating the amendment, and I beg to move.
The Lord Bishop of Chelmsford: If no one else is going to speak, may I say how sympathetic I am to what the noble Baroness has said? Do we not need to say in this House and in Parliament that in this nation of ours we have far too many children and young people in custody? Surely the aim of legislation should be to assist us to turn that culture around and move in a new direction. The issue was raised in the report of the Joint Committee on Human Rights, which says:
“We note the Government’s statement that it strongly believes that custody for young people should only be used as a last resort. However, we note that in the Government’s response to our predecessor Committee’s recommendation, it said”—
“As presently drafted, however, there is nothing in the Bill to require that a YRO with ISS be the first resort, before custody, other than in exceptionally serious cases ... In our view, such a requirement would be an important additional safeguard to ensure that custody of children is only used as a last resort”.
That is why the amendment raises an issue that the Government need to address.
For a number of years, my wife had professional work in the field of children held in custody. We know that the behaviour of some children and young people is deeply challenging to society. The easy thing to do, dare one say, is to whisk them out of society rather than think of other means of addressing the issues. We also know that custody is the place in which the highest safeguards have to be set out if the interests of children who have been locked away are to be protected.
I shall be very interested to hear the Minister’s response to the amendment. It is important and it will be good to hear about the Government’s commitment to moving in these directions.
Lord Judd: I rise warmly to support this amendment. In doing so, I hope that the Committee will forgive me if I make a personal observation. We are fortunate to have in our midst someone with the experience of the noble Baroness, Lady Stern. She has unrivalled experience in her leadership of Nacro and her work since. I usually sat next to her when we both served on the Joint Committee on Human Rights and she always struck me as one of those people who has learnt so much from life that she goes on learning and responding to what she learns. She often helped the committee to reach its conclusions because of the wise way in which she approached matters. For that reason, it is terribly important to take anything she says in our deliberations very seriously indeed.
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I want to make a couple of points. First, either we believe that the principal and overriding objective of our penal system should be rehabilitation, or we do not. Of course the public must be protected, and the way some of the more irresponsible press suggests that if you are emphasising rehabilitation you are somehow not taking the job of protecting the public seriously is really quite iniquitous. Those of us who emphasise rehabilitation take the protection of the public very seriously—not only in the immediate situation but in the long term, which lies in the realm of successful rehabilitation. What disturbs me is that there is a great deal of evidence that children and—dare I say it without diverting too much attention?—young people caught up in the system as it is at the moment begin a life of criminality. The system institutionalises their exclusion from society and their criminalisation. That is not the case for all, but for a very considerable number. That is not only wrong, but stupid because it works against the interests of society and its protection. This amendment is timely in the sense that it gives us an opportunity to think about all this. I say that because for no one is it more important to make rehabilitation a priority than it is for the young.
The second point is that I do not for a moment doubt the good intentions of Ministers to make imprisonment a last resort, as the right reverend Prelate has just said, but I suggest that it is important always in public policy to examine the difference between intention and what actually happens. If we are going to make intention a success, it has to be explicit from the outset and it has to be spelled out whenever the opportunity presents itself over and again.
Perhaps I may conclude with just two anecdotal examples. It can be dangerous to use anecdotal evidence because it can be very untypical, but sometimes such evidence enables us to see more clearly the underlying issues we are facing. I have mentioned the first in Joint Committee and at Second Reading. In my nine years as president of the YMCA, I became particularly interested in the first-rate work it was doing in detention centres and prisons. I do not believe in being only theoretically informed so I went to see this work in several prisons and detention centres. The stories that the staff were telling me over and again of the young people with whom they were dealing, which were beginning to come out in the context of the real and deep relationships that had been formed, were a terrible reflection on society. It was difficult not to come to the conclusion that many of the children caught up in the system were victims themselves. Their anti-social behaviour of course cannot be tolerated—the noble Baroness made this point—because it can create mayhem and absolute hell on earth for some of the communities in which the delinquency takes place. No one wants to sideline that, but it would have been quite extraordinary if they had not started to behave in that way because of the reality of their lives.
My second anecdotal story and my final point relates to a dear friend of my family and a close colleague in my political life, the late Baroness Lester. She was a very close friend of us all in my family and godmother to one of my children, and if I refer to her as “Joan” it brings her alive for me. When Joan was a
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Just as I have said that we either believe in rehabilitation or we do not, we either understand that children are children—wherever they are, whatever they have done—or we do not. If we understand that, we need to spell out, not only by exhortations and undertakings but in the detail of our legislation, that they shall at all times be treated as children, and that paramount in our considerations should be the best interests of the child. As the noble Baroness brilliantly put it, by having the best interests of the child in mind one will be serving the best interests of society.
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Lord Elystan-Morgan: I, too, totally support the amendment and the powerful way in which it was moved by the noble Baroness, Lady Stern. When she says that children are not adults, it goes to the core of the situation. They are not truncated adults; they are a totally different species and, in their own right, deserve to be treated in a wholly specific way.
My submission is that nothing in the amendment would in any way frustrate or embarrass the administration of justice to young people. For example, the words,
echo those in Section 1 of the Children Act 1989 that when dealing with young people—and a young person, for that matter—the “paramount consideration” shall be the interests of the child. Regarding the attitude of the courts towards young people, I cannot remember who the learned judge was, but he was a figure of immense distinction, who said, in giving a judgment of the Court of Appeal in a youth case some 30 years ago: “Society has no higher interest than the reformation of a young man”.
There are young men—and indeed children—who are very dangerous and have to be in custody, but they are a small minority. I make no apology for reiterating what I have referred to on more than one occasion in this House over the past few months: we incarcerate more children and young people that any other country in western Europe. I do not have the exact figures with me but I have previously given them to the House. I remember that we incarcerate more than Germany, France, the Netherlands and Norway all put together. It has been said about our rates of incarceration of adults that we are catching more of them, but there can be no question of saying that in this regard. That is not the reason for these figures. The reality of the situation is that we have an attitude that is harsher, less realistic and less humane than those of judges in other countries.
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The noble Baroness, Lady Stern, raised the question of how high the limit should be with regard to criminal responsibility. I make the point, with some pride, that we already went partly down this path 40 years ago when the Children and Young Persons Act 1969 came into force. There was provision in that Act for the age of criminal responsibility to be raised as high as 14 by Order in Council. Exactly when that was removed I do not know, but I think it was some six or seven years thereafter.
The amendment is practical, humane, intelligent and entirely justified. In essence, it says nothing more than what has already been said by Parliament and the courts in this context.
Lord Hylton: When the Minister comes to reply, will he take the opportunity to state the Government’s intentions regarding the extension of restorative justice to children and young people? At the moment we have restorative cautions, which work reasonably well on the whole, but will the proposed youth rehabilitation orders, which we are coming to in the Bill shortly, be able to include restorative provisions? To stimulate the Minister’s imagination, if I can, I tell him that most children most of the time want to be useful. Pretty well all children easily understand what it means to put right the harm or damage that they have done.
Baroness Linklater of Butterstone: I gladly added my name to the amendment alongside those of the noble Baroness, Lady Stern, and the noble Lord, Lord Judd, who always have important things to say to us. I add my voice to theirs, for this is a very important issue for us to discuss at the outset of the Bill. It should help to clarify the overarching principles which inform the shape of the Bill and Government’s vision for the way in which we deal with children who offend in this country.
It was widely commented on all sides of the House at Second Reading that the Bill seemed to lack a theme or any such overarching vision, so this is perhaps the moment to try to tease out what should guide our thinking and practice when we legislate for those children we are so concerned about, in the interests of justice, the children and our society.
The distinction between principles and purposes means that the former are philosophical and the latter more practical, but they are closely intertwined. The Bill refers to purposes but nowhere to principles. It is clear that at every international level where principles are laid down—I have in mind the UNCRC and the Beijing Rules, in particular—the one overriding principle is that the welfare and best interests of the child must be the primary consideration. Indeed, Article 3 of the UNCRC states that it is an obligation.
When the Bill considers the purposes in sentencing, the fact that this principle is not explicitly stated as being at the heart of the youth justice system gives real cause for concern, particularly because so much flows from it in terms of decisions to be made in youth justice and children in trouble. It is a glaring omission. It should not be an add-on, nor a purpose along with others, but the overarching principle.
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Public attitudes to children are in large measure influenced by our sentencing policy, particularly when we are dealing with children in trouble. We have worked very hard in this country during the past few years on provisions for children and families, and I commend the Government for that. However, something seems to happen when troubled children become children in trouble—and attitudes do change. We then become, through many of the agencies which deal with children and young people, far more punitive, retributive and demonising of young people, which is reflected in particular in our attitudes to policing, sentencing and even schooling in the management of our difficult, disruptive, disturbed and disturbing youngsters. The result is that we are developing a far more alienated, demonised and difficult population of young people, who we then forget are still children like our own.
Children, as has already been affirmed today, must be treated differently from adults. They are so physically, psychologically and experientially. The Beijing Rules require that the juvenile justice system emphasise the well-being of the juvenile. The Children Act 1989 can show us the way, with, for example, the child-in-need assessments, a welfare checklist and a common assessment of each young person. When we talk generally about custody being a sanction of last resort for all offenders, it is even more acutely true for children and must be for the shortest possible time. We will discuss in detail during the passage of the Bill how this is not, in reality, the case in Britain today, but we must start by at least affirming this principle in the Bill. Ultimately, we are talking about a profound shift, not simply in processes and procedures, but in the attitudes of all of us, including the authorities and the courts.
I remind the House once again that, in another part of the United Kingdom, with another legal system, no child prisons exist as they do in England, and children do not enter the criminal justice system until they are 16. In Scotland, we have the children’s hearings systems and the children’s panels, which see and seek to meet the needs of any child in trouble as they address their deeds. Here I declare an interest; I was a children’s panel member for eight years and participated in a system of which we are very proud. There are also some very impressive, welfare-oriented, secure children’s homes, all of which we can learn from. The records in England show that in the STCs—our child prisons—children have died from restraint-related incidents; one has even died in the course of being restrained. These children are, as we constantly remind each other, the most deprived in our society and their reoffending rate is the highest of all.
We have already heard from the noble Baroness, Lady Stern, how shamefully we compare with other countries in our treatment of young offenders; but we do not need comparisons to know that this record is totally unacceptable and is a million miles from treating children
the last principle in the amendment.
Finally, I add my concerns about what I call the principle of probity. If we indeed legislate for a real shift from prison to an expansion of community-based
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The Earl of Onslow: I shall refer to this excellent brief from the Standing Committee for Youth Justice, which shows that rehabilitation cannot be what the Government are achieving. Eight out of 10 children reoffend. We lock up 23 per 100,000; the Finns lock up one-fifth of one child per 100,000. Clear-up rates have been stable since 1995 and 42 per cent fewer people report being victims of crime. However, while 100 under-15s were convicted and sent to prison in 2002, that number has increased to more than 800, only 50 of whom were serious offenders.
What on earth is the point of sending another 650 children to the nick, when it seems to have had no effect whatever on recidivism rates and has made absolutely certain that, of those 650, only 120 will not reoffend. This cannot put the interests of the children at heart but those of tabloid headline writers. Of course one concedes that children can be toerags and disgusting. My late mother said that when I was 15 I entered the “awkward age”—or rather, as she had some pretension, “l’age bête”—and until the day she died aged 75 she never conceded that I had left it. We cannot leave the point that there are little horrors about, but they need more care and attention to try to stop them being little horrors. This should be put in the Bill and with a glad heart, I support my noble friend—I say that advisedly—Lady Stern.
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Baroness Howe of Idlicote: I wholeheartedly support this amendment. It has been moved brilliantly by my noble friend Lady Stern, and all the contributions have underlined different aspects of why it is so crucial. I have been involved with children and courts for a considerable period of my life and know how effective some methods can be—and equally, how totally ineffective others can be. This Bill is an attempt—but a muddled attempt—to begin to make things better and to make it clearer that there could be a range of other activities and diversions. I suggest that what the Bill needs, above all, is an overriding, overarching principle. As the noble Baroness has just said, you need something through which you can interpret what you can do in the best interests of that child. The amendment mentions the best interests of the child and that
At a later stage, we shall look at the age threshold for a child to be sent to an adult prison. All that forms the background to what we are talking about.
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Community-based sentences are clearly the future. We have to admit that legislation passed by this Government has increased the number of people—women, children, men—who have been sent to prison. The system has become far more punitive than necessary and far harsher than the one that worked in the past. One understands the desire of all Governments to appear—and be—effective in preventing violent crime. Community-based sentences will help the Minister and the Government to achieve their aims, which are increasingly rehabilitative and aimed at trying to save so many children who, if worked with properly, can grow up and come out of offending, rather than fall into this horrendous reoffending pattern that we have seen, particularly with young offenders, where something like 96 per cent reoffend within a short period.
Lord Ramsbotham: It is always a privilege and an education to follow the noble Baroness, Lady Stern—as the noble Lord, Lord Judd, has said. It is also a privilege to listen to the wisdom and humanity of the speakers in this House on this important issue. I was very interested that the noble Lord, Lord Judd, mentioned one of the two boys involved in the Bulger case. I also went to see one of these boys and discovered, through talking to the psychologist and psychiatrist who had looked after him through the trial, that, although he was 10 at the time of the incident, his developmental age was four. In order to deal with him, she had to act as if he was four and take toys from her four year-old son to engage him. She said, “I have never stopped wondering how this country could put somebody with a developmental age of four into a High Court situation at the age of 10.” I am very glad that the issue of the age of criminal responsibility has been raised again, because I think that it is a disgrace that this country continues with that particular situation.
I strongly support the amendment because it reflects my experience as Chief Inspector of Prisons. I found that an awful lot of what was put out by government was prepared by officials who had absolutely no experience of what they were talking about and therefore no idea of the principles and standards that they needed to underpin what they said. As Chief Inspector of Prisons, I produced a document, which I called Expectations, setting out precisely what those principles and standards should be for all the prison rules. Having prepared one for adults, we then did another for children and young people, because they were very different. The guide and leader of that process was a remarkable man, who was my deputy at the time. He had governed a young offender institution and, before that, had been the housemaster at a borstal. He said that borstals were positive places, where those sentenced at Her Majesty’s pleasure had to earn their way out and the staff had to help them to do that. He clearly came away with the idea that there was a need for principles to govern the justice.
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