Criminal Justice and Immigration Bill

My Lords, along with others today, I find something heart-sinking about yet another enormous criminal justice Bill covering a multitude of issues without any discernible theme or thread, as it moves through a range of young offender, sentencing and other criminal justice provisions. Then, having dropped the proposal for a commissioner for offender management and prisons, it moves on to criminal law, policing and immigration before ending up with ““Miscellaneous”” and then ““General””, to mention just some of its 14 parts. Like the noble and learned Lord, Lord Mayhew, I find I am humming along to the same theme; that this is a Bill without a discernible theme. It is indeed a hotchpotch of provisions, some good and some bad. Sentencers will be putting back the towel they had on their heads as they got around the Criminal Justice Act 2003, then the Police and Justice Act 2006 and then the Offender Management Act 2007, to mention just a recent few. It has also escaped nobody that scandalously scant time was allowed for scrutiny in the other place—scrutiny which now falls to this House to try to rectify. However, I fear that the more we tinker, the more complicated and opaque the result becomes. It seems to me that the heart of the problem is the complete disjunction between the stated aims of our criminal justice system and the way policy and practice is carried out. There is clear unanimity at every level of government and the judiciary, as well as all the agencies, both voluntary and private, that custody should only ever be used as a last resort and then only for the most dangerous, violent and prolific offenders. This has been repeated by all recent Home Secretaries and Lords Chancellor, as well as loudly and eloquently by the noble and learned Lord the Lord Chief Justice, and echoed by everyone in the field, including those who wrote the Home Office strategy paper which laid the groundwork for much of this Bill. The solution, we know, has to be found in community-based penalties, which are not only cheaper and work better, but involve a measure of making good by the offender, putting something back into the community against which there has been an offence. They make a constructive connection. Above all, they create the opportunity for offending to be reduced, which is the ultimate goal and overarching justification for all the sentencing options and policies we try to construct. Above all else, the public want the offender not to do it again. Polls have repeatedly demonstrated the recognition by the public that prison is not the answer to cutting crime, and that the public are not pressing for the punitive measures the press and many politicians would have us believe. We have consensus but, despite all this, what do we actually do? We send more people to prison than almost every other country in western Europe; the number of people given custody at magistrates’ courts has more than doubled between 1993 and 2005 and has risen by one-third in the Crown Courts. Crucially, people are sent to prison for longer. We have such a problem as a result with overcrowding that it is not possible for prisons to do the job we want them to do with the dangerous prisoners they should be dealing with. There have been times when these prisons have operated beyond safety limits. Yet, for example, last year more than 50,000 people were sent to prison for less than a year. They were not dangerous, violent people from whom we needed protection. It should become clear that it is absolutely vital that enough proper community alternatives are available in order that sentencers have the necessary confidence and can use them. What have we done about the alternatives—the sanctions expressly deemed appropriate for the minority of all we deem offenders? They are largely provided, as we know, by the Probation Service along with the range of other agencies working with offending and vulnerable people of all ages. But what we have actually done is to require agencies such as the Probation Service to cut back on their budgets—in the case of the Probation Service, by somewhere between 3 and 5 per cent year on year over the next three years. Simultaneously, however, the Government have now agreed to spend around £3 billion to solve the prison crisis, and no one has blinked. That is a crazy failure of the right hand to have any connection with what the left is doing. It is even crazier when the Secretary of State himself is on record as having said that we cannot build ourselves out of this crisis. There is evidence galore of the price that is being paid socially, economically and financially in our country. I am aware that most of what I have said is probably quite familiar to most of us in this Chamber, but it has to change. Even as far as this Bill is concerned, nearly every clause carries with it some financial implications, resources which are necessary to make things a reality without which we remain in a world of unreality. Every new measure involving the courts and community costs something, but I am not aware of plans for the commensurate growth in front-line community resourcing which in any way relates to the investment in prison building. However, I will say that I welcome the impact statement in the Explanatory Notes on the Bill. The Government have calculated that once the provisions have been fully implemented, I think in a few years’ time, there will be a net reduction of 4,300 prison places, which of course will be a start. The alternative disposals will have to be supplied and paid for. I entreat the Minister to tell us how the mismatch of the allocation of resources between prison building and community-penalty resources can be rebalanced in order that the appropriate provision exists and our debates on this Bill can indeed become rooted in reality. I will confine the remainder of my remarks to one or two of the youth justice aspects of this Bill. I am grateful to the Standing Committee for Youth Justice for its briefing, and the PRT, among others. I have dealt with children in trouble in Scotland as well as England. The difference is that in Scotland no child gets near the criminal justice system because of the children’s hearings. This explicitly recognises the paramount importance of the welfare of the child, as is the requirement of the UN Committee on the Rights of the Child. I understand that the committee is to examine the UK Government again this year. I would like to think that this Bill could offer an opportunity to look again at how we are, in fact, increasingly criminalising young children and using custody more and more. I thank the noble Baroness, Lady Stern, for referring to what is a true blot on the record of this country—that we should be imprisoning so many children in what were called secure training centres and have now become acknowledged and recognised as part of the Prison Service system. We could consider introducing the concept of a custody threshold for children, which she also mentioned. The Home Office strategy paper underpinning much of this Bill does say that we believe it is important to keep children out of prison if at all possible. This is not to say that children in trouble will not sometimes badly need secure accommodation, but of course as we know prison is not the answer. Prison is least effective and most damaging for children, with their reoffending as high as 80 per cent and over. As the noble Lord, Lord Judd, mentioned, one of the most alarming and distressing statistics is that self-harming by children rose by 803 per cent between 2001 and 2004, and six children have actually died in custody in the past five years. It has been suggested that the threshold for custody could be triggered if the offence causes serious harm or if custody is necessary to protect the public. This would inter alia bring us more in line with similar European countries, including of course Scotland. Will the Government be prepared to comply with the UNCRC on that issue? The new youth rehabilitation orders are interesting, because they are an attempt to provide a real alternative to custody and, as such, should be welcomed, despite their many shortcomings. They represent an attempt to provide a more flexible and creative package of sentencing which could, if used properly, more nearly fit the individual young person, not least if he or she reoffends. However, 11 community sentences have been replaced by 16 requirements that, among other things, do not include the reparation order, which can be an important element. Why? What is really interesting here is that, in two cases—that of intensive fostering and of the drug treatment requirement—they cannot be imposed unless the Secretary of State has notified that the provision is locally available. Here is one actual reference to the need for provision to be in place. After all, what is the point of including in the Bill provision that is not actually available? It is also helpful that the purposes of sentencing are clearly set out in the Bill, but what is not clear or set out is that the welfare and best interests of the child are and must be at the heart of the youth justice system. Article 37 of the UNCRC commits us explicitly to separate the system for dealing with children who have trouble with the law from that for adults. At present, the evidence is that punishment is put before welfare in this country. I sincerely hope that we can address that in Committee, and I hope that the Minister will agree to look at that. Much needs to be done on the detail, as well as the general thrust of the Bill. I am sure that there will be stimulating and important debates, because there is much work to be done and some important issues to be dealt with. I hope—although not very optimistically so—that we will all be the wiser for it.