Criminal Justice and Immigration Bill

My Lords, there is a good deal to be welcomed in the Bill. However, it is clear that a full and considered response by the Minister to the observations of the Joint Committee on Human Rights is essential. I was struck by the observations of the right reverend Prelate the Bishop of Liverpool. Rehabilitation must surely remain a central, muscular objective of penal policy. Too often, it becomes a hollow refrain. Of course it may be necessary to register the unacceptability of criminal behaviour by some degree of punishment, and protection of the public is vital, but the worse the crime, the greater the challenge to a self-confident, civilised society tirelessly to strive for rehabilitation. To fail is a failure of civilisation; it is to fail the individual and it is usually an economic nonsense, with all the economic and social costs of reoffending. Our prisons have far too many people in them who should not be there at all. Too many prisoners are suffering from mental illness, learning difficulties and similar conditions. Prison, far from helping, frequently aggravates their condition. Concerned and highly professional prison staff, of whom there are many, will be the first to speak of this, yet we seem to be locked into an inadequate and self-defeating pattern of expenditure, as the plan for a huge expansion of prisons indicates. If we were to start from scratch, we could almost certainly have a purpose-built and secure rehabilitation-oriented system at no greater cost, thereby achieving substantial success in curbing reoffending with all its gravely adverse consequences. I declare an interest as until recently, for nine years, a president of the YMCA, which does significant work with young people in prisons and detention centres. Children in penal custody are among the most disadvantaged among our society. More than 25 per cent have a literacy or numeracy ability of only seven years or younger, while 85 per cent have symptoms of personality disorder. Ten per cent appear to have psychotic illness, while more than 50 per cent have been in care or involved with social services and 41 per cent have been excluded from school. The Youth Justice Board has indicated that up to nine out of 10 children in custody after having committed a serious offence have been previously abused or suffered severe traumatic experiences. But far too often they simply do not get the help that they need while detained. In secure training centres, which hold younger children, self-harm rose by 803 per cent between 2001 and 2004. Too many children still die in custody. So far, despite imaginative and highly effective work by NGOs and others, overall arrangements for rehabilitation have not been a success. Three-quarters of youngsters reoffend within a year of release. Too often the children involved in crime—even the worst cases—are first and foremost themselves victims, and what they need above all is help, not just punishment. To be candid, too often our society totally fails to grasp this. Children should never be in prison. If, but only if, for the protection of the public it is essential to detain them, such detention should invariably be in secure but also properly resourced, purposely designed and professionally staffed special accommodation. With the vast expenditure envisaged for the new prison-building programme, this is surely the time to start applying a more rational and appropriate approach. Future crime prevention and good economic logic demands this. The Standing Committee for Youth Justice brings together almost 20 organisations with extensive front-line experience of working with children and young people. It includes the Association of Youth Offending Team Managers, Nacro, the National Children’s Bureau, the NSPCC, the Children’s Society, Voice and others. The committee has assembled a succinct and powerful brief on the Bill, listing its principal remaining concerns. I hope that my noble friend will ensure that he and his colleagues personally read that brief—it is not in any way hostile—and take it fully into account. It would be good if today he would reassure us that they have or will. On youth rehabilitation orders, while the standing committee welcomes the principle of generic community sentences, it is concerned about too much subjectivity in the court’s approach, which may be difficult to counter in cases towards the higher end of the community sentencing range. It believes the Bill has to be amended to prevent a standard custodial sentence—a detention and training order—being imposed unless a youth rehabilitation order or intensive supervision surveillance order has previously been tried. It also believes that the Bill should establish that sentencers are required to take into account the age and circumstances of children and young people before them, and not to overload the sentence content and duration beyond their reasonable capacity to comply. It reminds us that such children are frequently unstable and immature. Among other concerns are the importance of retaining the power of the court when dealing with a breach, to allow the order to continue without imposing additional punishment, if this is the most appropriate course to take, and the unacceptability of removing the specification that the court may impose an intensive supervision and surveillance requirement or a custodial sentence for a breach of an order when the original offence did not warrant custody or was a non-prisonable offence. It is also concerned about the absence of a guarantee that children should have access to justice with proper legal representation, whatever the form of youth rehabilitation order being imposed, and not just before requiring local authority residence or foster care, as envisaged in part 2 of Schedule 1. It is necessary to make the promotion of children's welfare an explicit primary purpose of sentencing. Similarly, it is important to replace a punishment purpose for children with a requirement that sentences are proportionate to the offence. We need to take into account the relative success of referral orders with their problem-solving and restorative justice approach by making provision for second referral orders, provided that a youth offending team or equivalent officer recommends that. There are similar concerns about the youth default orders in Clause 39. We need to extend the otherwise good step in Clause 98 of a youth version of the conditional caution to those under the age of 18. We also need to abolish the power to prosecute children under 18 for prostitution, which was surely intended by the Department of Health guidance on safeguarding children in prostitution issued in 2002. Children must be seen as the victims of social inadequacy and worse, as they almost always are. The Standing Committee also notes the absence of convincing supporting evidence to justify the introduction of violent offender orders. It asks whether proportionate and appropriate use can be made of such orders with children and young people. It emphasises the dangers of counterproductivity among children inherent in anti-social behaviour initiatives. Therefore, while it welcomes the principle of periodic reviews, it stresses the importance of ensuring that these are available at any stage, not just after 12 months. It also stresses the importance of removing a custodial sentence for the breach of an ASBO by a child and of ending the iniquitous practice of naming and shaming, which not only breaches our international obligations on privacy for the child, but too easily becomes a badge of honour. It is also important to reduce the minimum length of the child ASBO from two years to three months. There is also an imperative need for an assessment under the common assessment framework before an order is made to ensure that mental health difficulties or conditions such as autism have been identified, so that the children affected by such conditions get appropriate treatment and not just an inappropriate ASBO. The children covered by this Bill are, in many ways, already among the most excluded in our society. In our deliberations, we must be very careful indeed lest in any way some provisions of the Bill inadvertently tend to institutionalise that exclusion.