My Lords, one of the most reprehensible provisions in this deeply flawed part of the Bill is that dealing with the power to be invested in those contracted to run secure colleges to use force to maintain good order and discipline, as set out in paragraphs 8, 9 and 10 of Schedule 6. Curiously, paragraph 10 of the schedule empowers a secure college custody officer, whose qualifications, as we have already heard, are not prescribed, to use reasonable force “where necessary” in carrying out the functions set out in paragraphs 6 and 9,
“if authorised to do so by secure college rules”.
Yet, as we have already heard, the Bill provides no mechanism for parliamentary approval of those rules.
The schedule therefore creates a situation in which force can be used—on children as young as 12 as the Bill now stands—to,
“prevent their escape … to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts … to ensure good order and discipline … and … to attend to their well-being”.
The notion of exercising force to attend to somebody’s well-being is intriguing. It would be interesting to hear the Minister’s explanation of that term. In addition, the custodial officer may use such force to search a person detained in the college. We are not just talking about conduct but about searches. These are very widespread areas in which force can be used.
As we have heard, the Joint Committee pointed out that this topic has been exhaustively examined by the committee itself, beginning as long ago as 2007-08 with its report The Use of Restraint in Secure Training Centres, and its view was upheld by the Court of Appeal which held that the use of force to maintain good order and discipline was incompatible with Article 3 of the European Convention on Human Rights which prescribes the right not to be subjected to inhuman and degrading treatment. Amazingly, the Government sought to argue that the court’s decision was limited to particular techniques to cause pain, whereas the committee points out that the court’s judgment,
“was quite unequivocal that the Rules were … incompatible with Articles 3 and 8 ECHR ‘and must be quashed on that ground’”.
The committee went on to dismiss the ludicrous attempt by the Government to shelter behind the fact that the Bill leaves the use of force to be defined by the college rules. It goes on to question the compatibility of the use of force to enforce good order and discipline with the UK’s obligations under the UN Convention on the Rights of the Child, as referred to by the noble Lord, Lord Marks, and the UN Convention against Torture. The former explicitly declares:
“In all actions concerning children … the best interests of the child shall be a primary consideration”.
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In relation to the latter, the UN Committee against Torture in May last year reiterated the Committee on the Rights of the Child’s recommendation to ensure that restraint is used only as a last resort, and exclusively to prevent harm to the child or others, and that all methods of physical restraint for disciplinary purpose should be abolished. The committee therefore recommended that Schedule 4 of the Bill be deleted and the Bill amended so that secure college rules can
authorise the use of reasonable force on children only as a last resort and only for the purpose of preventing harm to the child or others, and that only the minimum force necessary may be used. This is embodied in the amendment in my name, which echoes in many respects the amendment moved by the noble Lord, Lord Marks.
To see visited on children anything analogous, however remotely, to the shocking violence perpetrated on some of those deported from our country—or to what is alleged to take place in detention centres where they are detained—would be utterly unacceptable. Noble Lords around the House have indicated their very serious concerns about how, without any parliamentary oversight, rules may facilitate the use of force going well beyond anything that would be acceptable in the light of the views of not only the Joint Committee but the courts and the conventions to which we as a country subscribe.
I cannot believe that the Government will stand on the position that is outlined in the Bill, particularly having regard to the widespread applications of force which I discovered only when looking in detail at the schedule. It is alarming that very young children can be subjected to force covering such a wide range of occasions as the schedule sets out. I urge the Minister to think very carefully about the breadth of application and the terms on which force might be used. If there is no indication that that will change, I am sure that many of us will wish to return to the issue on Report.
I hope that between now and Report the Government will look very seriously at the issue, which has been raised not only in this House but by all interested organisations concerned with the welfare of the child. As a matter of fact, it is in the interests of the staff in these institutions to have clear guidelines about what is acceptable and what is not. It should be made clear to them at the outset that any temptation to use excessive force is beyond their powers and will not be sanctioned by whoever operates the institutions. I return to the point that it is important that there should be oversight by this House and the other place of precisely what will be done in our name to children detained in such an institution.