My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Woolf. If ever a wolf showed that he was not a sheep but how to bite with gentle ferocity it was tonight in this House.
My verdict on the Bill is that there is much to support but possibly even more to amend. It is a matter of concern that a Bill has arrived from the other place in such poor order requiring so much amendment. I support in general terms the powerful and excellent speech of my noble friend Lord Marks of Henley-on-Thames and the persuasive remarks of the noble Lord, Lord Pannick. I want to concentrate on two aspects of the Bill that have caused widespread concern. My first point relates to the Bill’s provision for secure colleges, which has been widely discussed, but I want to pick up on a couple of specifics.
I applaud the reduction in the number of minors held in custody in recent times and the work of the Youth Justice Board under the chairmanship of Frances Done. I look forward to an equally fruitful period under my noble friend Lord McNally, whom I am delighted to see in his place and with whom I, along with many others, have already had discussions. He is showing great enthusiasm and a huge appetite to learn about his new post.
My observation during my period as president of the Howard League for Penal Reform persuaded me
beyond any doubt about the important role of education within the custodial environment. I will never forget the maths certificates, all at highest grades, that I saw on the wall of a 17 year-old prisoner. When he informed me of his wish to be a maths teacher when he was released and able, as he hoped, to go to university, I asked him, “How was your maths when you were at school outside this place?”. His reply was, “I never went to school, sir”. He had been the beneficiary of excellent education, not on a large scale, but in a targeted way, in a custodial environment where it just so happened that the education was extremely good, at least for him. I agree entirely with my noble friend Lady Linklater that small institutions are best equipped to deal with the multiple needs of young men such as the one to whom I have referred. Indeed, I would also cite the experience and the excellent successes of the now sadly defunct Peper Harow Foundation, which achieved much in the same context and I know is well remembered by a number of Members of this House. I hope that the young man to whom I have referred has now found his true vocation, which was started through good education in custody, and has gone on to university and become a maths teacher.
I absolutely agree with the Secretary of State and my noble friend the Minister this evening that there should be a strong focus on education in custody. However, the cohort of children in custody has complex issues and needs. These were well described by the noble Lord, Lord Ponsonby, and I do not propose to repeat what he said. But what is proposed in the Bill needs to be examined in relation to two particular issues. The first is the size of the institution and above all the fracture from home that such a large institution is likely to cause, by definition, by bringing people possibly hundreds of miles from their homes. The second is the provision for physical restraint as it is described for good order and discipline.
The Government’s commitment to a large institution is, in reality—this is clear from the papers—an economic decision, not one related to the needs of the children in custody. Real concerns have been expressed to us all by many experts about bullying, safety and, above all, resettlement from a large institution distant from home. For this group of offenders, one size simply does not fit all.
Restraint is an extremely important issue, which is dealt with with extraordinary superficiality in the Bill. In 2006, with others, I produced a report for the Howard League on the use of physical restraint on children in custody. It was quite evident that the rules varied from institution to institution and that the techniques for the use of restraint in some places were violent and relied on pain compliance and in others were quite different. What is absolutely clear was that restraint was very rarely needed. In the best institutions, compliance could be obtained by de-escalation techniques, as I think they are generally called—in other words, sitting down and taking the time to talk to the young person concerned about why he or she had kicked off and how the problems could be resolved. That technique leads to a constructive outcome.
The use of pain compliant violence and other forms of physical restraint leads to resentment and trouble in
custodial institutions. There was clear evidence when we were doing the Howard League report that kicking off and being restrained was almost a badge of office for young people. It is asking for trouble to allow private sector institutions to form their own rules for the use of restraint. It is just too vague to be credible and it will lead to numerous cases in the courts for damages and, if it is possible, some judicial reviews.
Clause 67, too, has been addressed by a number of Members of your Lordships’ House. It deals with the proposal to make interveners liable for costs arising from their part in public interest legal challenges. I agree entirely with the noble Lord, Lord Pannick, that this proposal is not necessary. The courts already have adequate powers to refuse an application to intervene or penalise inappropriate behaviour by interveners through costs actions. It rarely happens. I have not been able to find a case in which it did happen, because on the whole interventions are constructive. Indeed, the proposal is counterproductive. It will result in deterring parties from intervening, depriving the High Court and the Court of Appeal of important legal and factual information that leads to the right decision. In some of these public interest cases, it is not a game. These are important cases and what matters is doing right to citizens and of course to the Government.
The role of interveners has been praised on many occasions. The noble and learned Baroness, Lady Hale, said in 2013 that the more difficult the issue,
“the more help we need to try to get the right answer”.
She described the potential for interventions to be “enormously helpful”. The noble and learned Lord, Lord Hoffmann, in the case of child E against the Chief Constable of the Royal Ulster Constabulary in 2008, explained that permission to intervene is given,
“in the expectation that their”—
the intervener’s—
“fund of knowledge or particular point of view will enable them to provide … a more rounded picture than it would otherwise obtain”.
Interveners add value to the court. They provide the sort of analysis that sometimes is not readily available to the party, such as international comparison. We should remember that it is not only NGOs that intervene; government departments intervene frequently in judicial review cases, principally with the good purpose of protecting the legislation and the policy for which they are responsible. For example, in the case of Yemshaw v Hounslow London Borough Council in 2011, a case that went to the Supreme Court, the Secretary of State for Communities and Local Government intervened in support of a wider definition of domestic violence.
Clause 67 makes sweeping changes to interventions in judicial review cases. It appears to require the court to order that an intervener—and this is incomprehensible to me—must pay the other parties’ costs arising from the intervention. Where another party applies for such an award to be made, the court will have discretion to depart from this rule only in exceptional circumstances. That is absurd, especially when you consider that many interventions are made in writing or by short submissions to the court. The inevitable consequence
of this is that charitable and not-for-profit organisations will no longer be prepared to provide their expertise to assist the court in cases of wide public importance. How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?
The senior judiciary, of which we have some very distinguished representatives in this House, some of whom have spoken tonight, has spoken out this year in relation to these proposals. It said:
“The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court”.
There is no need for this new proposal. I agree entirely with the noble and learned Lord, Lord Woolf, that the Government should take this proposal back to the drawing board. The court already has wide powers to penalise parties, including interveners, who act irresponsibly or to award costs against interveners who play a leading role. There is no problem. The Government are creating a problem when it does not exist and does not require a solution. In your Lordships’ House, we can ensure that that consequence does not follow.
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