Criminal Justice and Immigration Bill

My Lords, this is not the Bill that most people concerned with an effective criminal justice system and a safer society would like to see. The noble Lord, Lord Dholakia, has described the situation very well. The Bill that we need would be more realistic and would set narrower boundaries, not broader ones, for what a criminal justice system should do to protect the public and administer justice. It would make well-grounded decisions about what resources to allocate now and in the future, and then plan how to use them most effectively so that the system could cope with its workload. It would devise a framework enabling those who work in the system to make more use of their discretion, their sense of responsibility and their skills to deal with defendants and offenders in the best way that they can, to contain and rehabilitate them and reassure the public that the criminal justice system works. If we were moving towards such a system, we would be moving towards a safer and less frightened country. Sadly, we are not. The way of making policy that the Bill exemplifies, with a bit of this and a bit of that and without proper analysis and assessment of the unintended consequences, has not served us well. Those of us who spent many days debating the Offender Management Bill and questioning the realism of the Government’s claims are not surprised that the NOMIS database, which was meant to be the holy grail in allowing for end-to-end offender management, has been scaled back and will now be used only by prisons. Nor are we surprised that end-to-end offender management has been brought in only for a very small group of offenders. That is a sensible outcome, but the realities should have been understood from the start. Therefore, my starting point is that if we were making evidenced-based policy and using resources to best effect, we would not be here today debating this Bill. However, we are, so is there anything in it to welcome? I am sure that we all welcome the decision to rectify some of the mistakes and misjudgments of earlier legislation: for example, introducing a minimum tariff of two years for IPPs and extended sentences; giving credit for bail on electronic monitoring; realigning the 1991 and 2003 Acts’ early release provisions; and fixing the period of 28 days for recalled offenders. I also warmly welcome the Minister’s announcement in his opening remarks that the clauses on the Commissioner for Offender Management and Prisons are being withdrawn. Although it is highly desirable that this office is placed on a statutory footing, the Government’s proposals as they stood were deeply flawed. However, I support the remarks of my noble friend Lady Howe about the Government’s weak-kneed approach to the proposals made by the noble Baroness, Lady Corston. I want to concentrate specifically today on one aspect of the Bill—that is, the compatibility of these proposals with the Government’s human rights obligations. We are fortunate that, thanks to the dedication and hard work of the staff of the Joint Committee on Human Rights, of which I am a member, a report on these matters was agreed yesterday evening and produced overnight so as to be available for this debate. I hope that the Minister noted at the beginning of that report the appreciation expressed for the full Explanatory Notes on human rights compatibility, which the committee found ““unprecedented””. I hope that this comprehensive report will be of use to the many noble Lords who are interested in the Bill, and I am glad that it has already been referred to by the noble Baroness, Lady Miller, my noble friend Lady Howe, and the noble Lords, Lord Henley and Lord Thomas. Perhaps I may say a word about youth justice. Our youth justice system is a scandal and has been the subject of adverse reports from all the main human rights bodies. It subjects some of the most vulnerable children in our society to punishments that they do not understand, because their lives so far have been nothing but punishment, in places that are not in any way appropriate to hold them and meet their needs and where they are subjected to practices such as strip-searching—sometimes forcible strip-searching while they are restrained—and pain infliction. Those practices are clearly inhumane and degrading. I never thought that I would see the day when the European Committee for the Prevention of Torture, which among other things concerns itself with prison conditions in Russia and what happens in police stations in Turkey, came here and told Her Majesty’s Government that it was not acceptable in children’s prisons to hit children on the nose until they felt pain to make them do what they were told. I assume that that is what happened as, soon after the committee’s visit, the Government announced that this practice was to be discontinued. We must be grateful that the Government abandoned it. In that respect, I should like to mention the Labour Member of Parliament for Northampton North, Sally Keeble, who has campaigned with such determination to get these practices changed. We must also be grateful that the Department for Children, Schools and Families became involved and that two esteemed professionals with childcare backgrounds were brought in by the Government to look at what I would describe as the gross and indefensible use of restraint in children’s prisons. Those of us who have met these two professionals are optimistic about the outcome of their work. In order to take forward this reform agenda, it is essential that we change our approach to the use of custody, and therefore I hope that the Minister will listen carefully to those who urge us to amend the Bill to create a threshold for the incarceration of children. In response to arguments about reforming the youth justice system, Ministers have tended to say that critics fail to appreciate that some children commit serious crimes. Of course they do; those who urge reform know that children from abused and violent backgrounds may well commit serious crimes. These are the children who need particular skilled, painstaking care and attention if they are to grow into adults able to lead violence-free lives. This is not just a human rights issue; it is a case of recognising the evidence and devising policies accordingly. I turn specifically to the report of the Joint Committee on Human Rights. The committee welcomed the introduction of the generic community sentence for children under 18 on the basis that, "““it has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system””." However, the committee is concerned that custody should be a last resort and that punishments should be proportionate—not only to the offence but to the child’s age and intellectual and emotional maturity. Therefore, it recommends that we remember the requirement of the UN Convention on the Rights of the Child that in all measures taken in regard to children, the best interests of the child should be paramount. The committee therefore finds unacceptable the thrust of Clause 9—that the best interests of the child should be subordinated to the principal aim of the youth justice system. It recommends that the Bill be amended to make it explicit that the sentencing court should have regard to the welfare of the child ““as a primary consideration””. The committee noted with surprise that there is no presumption that children are entitled to publicly funded legal representation in criminal proceedings and it recommends an amendment to provide such a right. The Joint Committee was also concerned about the proposal to cap the amount of compensation payable to those who suffer a miscarriage of justice. It did not accept that there should be a cap and envisaged that £500,000 might be very inadequate recompense for someone who had been unjustly imprisoned for a large part of his or her life. The noble Lord, Lord Thomas of Gresford, put that point very well in his opening remarks. The committee recommended that this provision be deleted. The committee supported wholeheartedly, as will all noble Lords, the need for rehabilitation of the very many vulnerable people involved in prostitution. This would be a human rights-enhancing measure. But we were very concerned that enforcement could result in 72-hour detention and might lead to imprisonment. We hope that the Minister will consider deleting this provision. The Joint Committee has produced some model amendments on these and other matters that we hope to be able to table in Committee, and we look forward very much to the work that we have to do to make this a better Bill.