Criminal Justice and Immigration Bill

I rise to respond to the amendment so brilliantly introduced, as the noble Baroness, Lady Howe of Idlicote, said, by the noble Baroness, Lady Stern. I do not think that anyone in the Committee, least of all the Minister, would dissent from any of these three principles. As the noble Lord, Lord Elystan-Morgan, said, that the best interests of the child should be the paramount consideration has been part of our legislation since 1989. The idea that the, "““arrest and deprivation of liberty of a child shall be used only as a measure of last resort and for the shortest possible time””," has appeared in countless official reports and is a standard part of guidance to magistrates and judges. Proposed new paragraph (c) states that, "““the child shall at all times be treated with humanity and respect for his or her inherent human dignity””." Well, we are signed up to many international conventions that require us to follow this line. If this measure were to reach the statute book, its quality might be added to by a provision (d) that dealt with reoffending, a point emphasised by the noble Lord, Lord Judd. As my noble friend Lord Onslow said, we incarcerate more children than any other country in western Europe; he might have added that we do so less successfully than any other country in western Europe. At least 75 per cent of children in custody, as all your Lordships know, offend again. The question is what the real value would be of having such a set of principles on the face of a statute. We all know that these principles are, as principles, binding on the Government. The problem is that the principles are undermined by the details of our legislation on youth offending. The Government’s great mistake has been to attempt to micromanage the judges. However well disposed a judge might be to the principles and however much he might wish to apply them to an individual in front of him, he is stuck with an obligation in an Act, a direction from the Lord Chief Justice or an obligation deriving from some other source to act contrary to the principles. If these principles are to bite, the amendment tabled by the noble Baroness, Lady Stern, will need more than she has put in it. It will need an extra provision that allows the judge to override the specific details of the statute by the principles if he or she considers them appropriate in the circumstances. As all your Lordships know, judges can, when considering evidential points in criminal trials, exclude evidence if its prejudicial effect on the trial will outweigh its probative value. If the noble Baroness, Lady Stern, added to her amendment a similar power that a judge could override a specific statutory provision which went contrary to these principles if he considered that the principles in this case were overriding, that might have some real effect in our system. Later we shall be dealing with the question of what happens if a youth rehabilitation order is breached. At present there is a certain flexibility that even if an order is breached three times within 12 months, a discretion can still be exercised by the court not to resentence. Often when someone is resentenced, he is sent to custody. What do the Government want to do now? They want to remove that discretion. If there have been three breaches in 12 months the judge is obliged to do it, and more children will end up in custody. Those principles, splendid though they are, will be of no help to the judge unless he can override the details of the legislation. I am not saying that if the noble Baroness were to introduce an amendment with that kind of force that I would necessarily support it.