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Offender Management Bill

Volume 692: debated on Tuesday 12 June 2007

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 15 [Powers of authorised persons to perform custodial duties and search prisoners]:

106: Clause 15, page 10, line 43, at end insert—

“( ) A worker at a contracted-out prison shall be subject to the qualification requirements that the Secretary of State shall by regulation define.”

The noble Baroness said: This amendment is tabled in my name and those of my noble friends Lord Dholakia and Lord Wallace of Saltaire. It echoes the previous amendments tabled by the noble Baroness, Lady Anelay, and refers to the clear requirements for the appropriate training of all staff in contracted-out prisons who work with children and young people to include explicit child safety, protection and welfare provisions. These requirements really must be in the Bill. Our amendment has been informed by the Standing Committee for Youth Justice, to which I am grateful.

I return to the issue of the essential role of training for all those working in the criminal justice system. I would like to clarify for the record and for the Minister that, on our last day in Committee, far from suggesting that I thought that the Government took qualifications and training lightly or that anyone could do the job, I meant quite the reverse. I wanted to draw their attention to the perception—subjective but real none the less—in the Probation Service that in the Home Office qualifications are not viewed with great importance. It is important that the Government are aware of this and take it into account in their dealings with the service.

I also return unashamedly, despite the reservations expressed by the noble Lord, Lord Warner, and the noble Baroness, Lady Howarth, on the previous day in Committee, to our discussion on the training of the provider of probation services. Today we are looking at the even more sensitive issue of the training of those who deal directly with children and young people. The noble Baroness, Lady Anelay, has already raised the question of the management of visitors, who may be children, by staff in private prisons, including searching them and letting them in and out. I do not know whether many Members of the Committee have witnessed the searching process of visitors to prisons, but it is certainly more rigorous than many may realise. It includes looking into people’s mouths, for example. This comes as quite a shock when you are not expecting it. In addition, personal searches can include the removal of more than just an outer coat or jacket, or gloves. Indeed, on more than one occasion I have been thoroughly searched and frisked in a cubicle, by an officer, in an STC, of all places, where I was an expected visitor. Actually, I was searched more thoroughly there than I ever was on going into the Maze prison.

When searching of any kind is extended to children, we believe that it is essential that there are explicit child safety protection and welfare safeguards in place, which is not the case at the moment. The Explanatory Notes state that these powers will be exercised in line with prison and YOI rules, but no more than that. I believe that that is not enough.

It is fair to assume that many children coming to make these visits are, by definition, more vulnerable than most. The often stressful nature of a prison visit, which anyone who has undertaken one will know, must not be compounded by inexpert searching. Furthermore, it is essential that those working in private prisons and STCs are able to exercise their powers to search and detain only within a clear framework of accountability, as exists in the statutory sector. There is, as always, a balance to be struck between necessary precautions and unwarranted invasion of privacy with adults, but in dealing with children, searching must be handled with extreme care and sensitivity at all times.

The Joint Committee on Human Rights, in its letter of 19 December to the Department for Constitutional Affairs, raises a number of human rights compatibility issues in relation to the Bill. It says:

“The committee is considering whether the removal of the restriction on the power of prison custody officers at contracted out prisons and secure training centres to search prisoners, so as to enable them to require visitors to remove items of clothing which are not merely an outer coat, jacket or gloves, is accompanied by sufficient safeguards to be compatible with the right to respect for private life in Article 8 ECHR.

The European Court of Human Rights in Wainwright v UK has very recently reiterated the importance of stringent procedural safeguards accompanying any such power to search visitors to prison. … The Committee is considering whether the new power to detain for up to two hours in contracted out prisons and secure training centres whilst waiting for the arrival of a constable is compatible with the right to liberty in Article 5 ECHR”.

At present, the qualifications specified by regulations should include a requirement to undertake training in the Common Core of Skills and Knowledge for the Children’s Workforce, developed by the DfES. It is meant to be a tool to enable anyone who works with children and young people to develop a common understanding in six basic areas: effective communication and engagement with children, young people and families; child and young person development; safeguarding and promoting the welfare of the child; supporting transitions; multi-agency working; and information sharing.

I am sure that Members of the Committee will find that that list consists of nothing less than what is basic to all those practitioners we are discussing. But this common core is not mandatory for any practitioner working with children, although it expects a basic level of competence to be demonstrated “over time”. Our view is that in this field it should be a prerequisite. I beg to move.

We accept wholeheartedly the principle behind the amendment; we are just concerned that the qualification regulations imposed by the Secretary of State may place an undue burden on both the workers and the resources of the prison estate. Does the noble Baroness consider that the qualifications she has outlined complement existing training provisions?

Since the Minister was absent at an earlier stage of the Committee, perhaps I may ask her about supervision of custody officers. She kindly wrote to me recently in response to my Question on how supervision in private, contracted-out custody was monitored. She stated that it was a matter for the private contractors and that the Government managed these matters through the performance framework. As the Minister knows, I am very concerned that custody officers should be well supervised; in young offender institutions, they currently are not. I was therefore concerned by that Answer. It is certainly relevant to the question of visitors with children. I would therefore appreciate it if the Minister were to describe in a letter to me how these contracts monitor the performance of the contracted-out prisons, so ensuring that adequate supervision exists. We hear that there is often a high turnover of staff in private nurseries and prisons, because, for all the benefits that private contracting can bring, support for front-line staff is not as strong as it would be in public provision. I understand that the European Union has demanded that a common core of skills and knowledge for adults working with children be in place by 2008, but I may be wrong. I would be interested to hear from the Minister whether that is correct.

We have covered much of this ground previously, so I shall not reiterate the arguments. However, it would certainly be helpful if the Minister were to give us all a straightforward reassurance that Articles 5 and 8, to which the noble Baroness referred, are not being breached and that we can rely on appropriate training being offered to people working in contracted-out prisons.

I say straightaway to the noble Baronesses, Lady Howe and Lady Linklater, that we are confident that Articles 5 and 8 of the ECHR are not being breached. The requirement in Wainwright is that there be clear procedures and proper training. We are happy that we have in place precisely such procedures; we are not worried about that.

The noble Viscount, Lord Bridgeman, asked an important question in relation to the amendment moved by the noble Baroness, Lady Linklater, about undue burden on workers and the prisons estate. We think that such burden would be the precise impact of the amendment, although I am sure that that is not what the noble Baroness intends.

My noble friend Lord Bassam dealt in detail with some of these matters yesterday, so I shall try to deal with them as quickly as I can. However, before doing so, perhaps I may say how disappointed I was at the noble Baroness’s remarks about the perception of the probation services, because it flies in the face of reality when one bears in mind the Government’s investment in, and concentration on, training, expertise and excellence.

The noble Baroness, Lady Linklater, mentioned searching. One of the tragedies the system regrettably faces is that some very alarming items have been found on the person, sometimes the intimate person, of visitors. That creates a real challenge for all of us. However, I recognise the purpose of the noble Baroness’s amendment; it tries to ensure that the quality of staff is sufficient and that operations are undertaken correctly. I hope that I have already made it clear that I share those concerns, but I am glad of this opportunity to remind the Committee of the safeguards that we have in place to ensure that this is the case. As Members of the Committee indicated, this issue was discussed at some length in Committee in another place, but the opportunity to restate the Government’s position is none the less welcome.

The proposed amendment would require the Secretary of State to set unnecessary qualification requirements for non-PCO staff before they could be authorised to perform a custodial duty. Before I explain why the amendment is unnecessary I would like to make clear what this clause is intended to achieve. Its aim is to reduce unduly restrictive limitations placed on those working in the private sector while ensuring that appropriate safeguards are maintained. I would be happy to write to the noble Earl, Lord Listowel, about those details and circulate them to other Members of the Committee because the detail is often reassuring and helpful.

Accepting the amendment would not only perpetuate existing unwarranted differences in operational practice between the public and private sectors but introduce an extra difference. We assume that it was intended that only those meeting the requirements set out in an SI would carry out duties listed under the power given by the clause. The amendment achieves that result, but it also goes considerably wider: its wording would mean that every worker in a privately run prison would be required to meet those qualification requirements. Every such worker, irrespective of whether they were ever likely to have any contact with a prisoner, would be required to meet standards identified and described in secondary legislation. That is unnecessary and disproportionate. Moreover, it would deprive those running private prisons of the operational flexibility which is vital for the effective management of a significant part of the prison estate. Consequently, the amendment would undermine the very purpose of this clause, which is to deregulate an aspect of the private sector with appropriate safeguards—the emphasis must be on “with appropriate safeguards”—not to impose additional and weighty burdens on it. There are other, equally good reasons for resisting this amendment, even had it been drafted to achieve the intention which we assume those drafting it had in mind.

As I stated previously, the Government explained in another place why we believe that, although on the face of it a requirement that the Secretary of State make non-PCO grades who seek to perform custodial duties subject to qualification requirements may appear to offer assurance, in reality that would not be the case. As we stated then, no such restriction exists for the public sector. There is a 14-year record of quality delivery in private prisons; the staff performing those duties will not be doing so all the time—they will simply be part of their job, as is the case for OSG in the public sector. Finally there is no justification for the significant additional bureaucracy that the amendment would require.

In addition, the clause already limits the range of custodial duties that a non-PCO grade will be able to perform and submits those tasks to parliamentary scrutiny. The Secretary of State will have to specify in an order subject to the negative procedure the activities that a worker may be authorised to carry out, and we have explicitly excluded the use of force from this list.

Furthermore, an individual non-PCO has to be separately authorised at establishment level to carry out any task listed in such an order. Such an authorisation can only be given by a director where appropriate and can be made subject to limitations or conditions. In determining whether an individual should be authorised or whether any authorisation should be limited or made subject to conditions, we anticipate that a director may well wish to satisfy himself or herself that an individual has an appropriate level of experience and expertise to carry out the listed task in question. Any such exercise inevitably entails the consideration of the non-PCO’s qualifications.

The director will have in mind the contractual penalties—including financial penalties—and reputational damage that operational failures in private prisons incur, then they will make a decision on the appropriateness of an individual for a particular task. I hope that that satisfies the Committee that the amendment is unnecessary, and that the noble Baroness will feel happy to withdraw it, although I understand why she has raised the matter and why it is important to have this discussion.

I am grateful to all those who contributed to this short debate. I am not entirely reassured by the Minister’s response, particularly her remark that the amendment might perpetuate differences. Given the robust assurances that appropriate training is already in place for all staff, particularly those involved with the management and searching of prisoners, children or adults, I do not understand how differences could be perpetuated.

I appreciate that a burden may be imposed on staff, but I would not call it an undue burden in the context of managing children. However, in the mean time, having listened to what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

107: After Clause 15, insert the following new Clause—


(1) Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 (c. 47) (regulated activity: general) is amended as follows.

(2) After paragraph 3(1)(g) there is inserted—

“(h) contracted-out prisons”.”

The noble Lord said: The amendment stands in my name and that of my noble friends Lady Linklater and Lord Wallace of Saltaire. We discussed the power of search under Clauses 13, 14 and 15. Amendment No. 107 would add further safeguards in relation to search.

I assure the Minister that this is a probing amendment. We were assisted in its drafting by the Standing Committee for Youth Justice. We are concerned that a gap remains in the Safeguarding Vulnerable Groups Act 2006 in relation to adult prisons that children may enter as visitors. As the Minister in the other place highlighted, the Act already applies to those working in institutions which detain children. He said:

“I hope that the Committee will be reassured by paragraph (3)(1) to schedule 4 of the 2006 Act, which lists the types of establishments to which the Act’s safeguards apply. Included on the list in sub-paragraph (d) is

‘an institution which is exclusively or mainly for the detention of children’.

That will mean that employees of all prisons, young offenders institutions and secure training centres, whether publicly or privately run, will be covered. I hope that the Committee finds that clarification helpful, particularly given the scope of clauses 11 to 15, all of which can at least in theory apply to institutions in which children are held”.—[Official Report, Commons Offender Management Bill Committee, 23/1/07; col. 187.]

We would like an assurance from the Government that those carrying out personal searches of child visitors to adult prisons are appropriately vetted. I beg to move.

It is always important to ensure that those who carry out custodial duties are the appropriate people to do so. There are many different ways of ensuring a person’s appropriate standing. The Committee may recall that last year my noble friend Lady Buscombe introduced a similar amendment to this one in the Safeguarding Vulnerable Groups Bill. That would have included young offender institutions. My noble friend reminded me that it took some persuading from the DfES to ensure that the Home Office changed its view on these matters. It will be interesting to hear the Minister’s response in the context of this Bill. I am aware that this is rightly a probing amendment because it can refer only to contracted-out prisons. It would be useful to hear from the Minister what the position is with regard to vetting those in all prisons who care for and manage offenders.

I apologise to the Committee for arriving in the Chamber a few minutes late. I am very grateful to my noble friend Lord Bridgeman for covering the first amendment. I hasten to add that he had advance notice; I did not dump it on him. Today I had the privilege to visit the Nehemiah Project in south London, which cares for serious and serial offenders who are seeking to change their lives. It was very affecting to see what long-term hard work carried out on behalf of offenders, ex-offenders and others in its care can do. It certainly formed a strong background for my future consideration on the Bill, but as I drove past Brixton Prison on the way back it made me think closely about the noble Baroness’s amendment.

I am sure it will come as no surprise when I give the assurance that there is little between us in terms of wishing to ensure that there is proper treatment of young people and vulnerable adults. I know that there is much support in the Committee for that view. The debates last year partly stimulated by the amendment of the noble Baroness, Lady Buscombe, were valuable. We are not seeking to do anything in this clause that would be allowed to undermine such outcomes. I want to make it clear that we have already put in place significant safeguards both in this Bill and in existing legislation. Notwithstanding the safeguards that we already provide within the clause, this probing amendment is unwarranted for a number of reasons, which I will seek to set out.

The clause’s purpose is to deal with issues related to the activities of non-certificated operational staff in private prisons. The amendment, however, seeks to apply the regulatory framework established by the Safeguarding Vulnerable Groups Act 2006 to everyone who works in a private prison, including those such as administrative staff who do not have any contact with prisoners, including those in adult prisons. Schedule 4 to the 2006 Act deals specifically with the regulation of children’s establishments. That schedule was debated only last year. Consequently all issues related to the safeguarding of vulnerable groups were fully considered recently and it was not felt necessary to include all private prisons including adult prisons in this manner in that legislation then. Crucially, the importance of providing protection for children detained in custody was not overlooked in the 2006 Act in the way that the amendment inadvertently suggests. The regulatory regime relating to children under the Act applies to those private prisons primarily concerned with the detention of children—that is, YOIs and STCs—and they are covered by paragraph 3(1)(d) of Schedule 4 as being institutions that are exclusively or mainly for the detention of children.

That wording reflects a clear decision not to apply the Act’s requirements to institutions that do not deal mainly or habitually with the detention of children. The decision provides a sensible balance between the desire to ensure child safety and the need not to hamper the effective operation of prisons by imposing unnecessary regulatory burdens. In our view that was the right approach when the 2006 Act was passed and we do not think that anything that has happened since would warrant extending the reach of Schedule 4 so that it includes adult prisons now. Even if the 2006 Act did not already achieve what we believe the amendment’s purpose to be, we consider that the amendment is unnecessary and unhelpful for other reasons. First, the amendment extends significantly beyond the scope of the clause as it stands. It would cover all staff at all grades in private prisons, whereas the clause deals only with the roles and responsibilities of non-PCO grades. The amendment is therefore inconsistent with the clause’s purpose.

Secondly, the existing safeguards that apply in privately run prisons are sufficient to ensure the level of protection required in those exceptionally rare cases—if there are any—in which children may be detained in an adult prison. PCOs are those officers who have direct day-to-day contact with prisoners. PCO grades must, under Section 85 of the Criminal Justice Act 1991, be authorised to perform their duties by the PCO certification unit. As part of this process, PCO staff are already subject to rigorous pre-employment checks that include a requirement to disclose all previous convictions. Although non-PCO staff who do not have the same level of contact with prisoners as PCOs are not subject to the same certification requirements as PCOs, they are still cleared through the same unit as part of their pre-employment check. Any person seeking to work at a private prison receives a basic enhanced police check. In addition, any person who will be working in a juvenile prison, or who will come into contact with children or vulnerable adults, also undergoes a CRB check. Such pre-employment checks are consistent with those done on equivalent grades in the public sector, to which the amendment would not apply. We therefore contend that this additional bureaucratic check is not necessary or justified, as existing safeguards on staff suitability are adequate.

In addition, the clause already limits the range of custodial duties that a non-PCO grade will be able to perform, and submits those tasks to parliamentary scrutiny. The Secretary of State will have to specify in an order subject to the negative procedure the activities that a worker may be authorised to carry out. We have also explicitly excluded from the Bill the use of force from this list. A non-PCO must be separately authorised at establishment level to carry out any task that is listed in such an order. Only a director can give such an authorisation, where appropriate, which can be subject to limitations or conditions. In determining whether an individual should be authorised or an authorisation limited or made subject to conditions, a director will need to satisfy himself or herself that an individual has appropriate experience and expertise to carry out the listed tasks in question. That is an inherent requirement of any power such as this. When a director decides on the appropriateness of an individual for a particular task, he or she will have in mind the contractual penalties—including financial penalties, as has been said several times from the Dispatch Box—and any damage to reputation incurred by operational failures in private prisons.

In summary, the protection provided by Schedule 4 to the 2006 Act applies to young offender institutions and STCs. In the rare cases in which children are held in adult prisons, extensive alternative safeguards will apply. We firmly believe that this will be sufficient to ensure the safety of children in detention—a matter that I am sure all noble Lords consider to be of the utmost importance. I think that I have answered all the points that were made in the debate. We hope that the probing nature of the amendment means that the noble Lord will feel able to withdraw it.

I am grateful to the Minister for his helpful explanation. In the light of what he has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 16 to 18 agreed to.

Clause 19 [Conveyance of prohibited articles into or out of prison]:

108: Clause 19, page 12, line 25, at end insert—

“(4A) The reference in paragraph (b), (c) or (d) of list B to a device of any description includes a reference to—

(a) a component part of a device of that description; or (b) an article designed or adapted for use with a device of that description (including any disk, film or other separate article on which images, sounds or information may be recorded).”

The noble Lord said: Clause 19 updates and clarifies existing legislation on the smuggling of illicit items into or out of prison. One of the ways in which we hope to do this is by breaking down the list of prohibited items into three clear bands, each grouped according to seriousness. The amendment concerns list B items: alcohol, mobile phones, cameras and sound-recording devices. The legislation refers to “any article or substance” in the list. Having thought carefully about the wording, we are concerned that it does not explicitly cover parts of these items, or articles designed or adapted for use with them. Sadly, individuals often smuggle illicit articles into and out of prisons in component parts, as this makes them easier to conceal. An obvious example is a SIM card.

The amendment is also intended to cover separate or detachable items that can be used in conjunction with prohibited items but that could be smuggled in separately. Examples could include memory cards for digital cameras, batteries, film or tapes. I hope that the Committee will agree that this amendment is essential to make it explicit in the Bill, so that there is no room for doubt, that component parts of list B articles are covered by the offences in this clause. I beg to move.

On Question, amendment agreed to.

109: Clause 19, page 13, line 3, at end insert “prison rules or by”

The noble Baroness said: I shall also speak to Amendments Nos. 110 and 111. Clause 19 replaces Section 40 of the Prison Act 1952 with new Sections 40A, 40B and 40C. The new sections clarify the existing law, make changes to the penalties and mode of trial for certain offences and create the new offences of taking mobile phones, sound recording devices and cameras into a prison. We support the government amendment that has just been moved for that very reason: it clarifies and tightens up what could have been a loophole.

We have tabled these amendments to ask the Minister to clarify matters regarding the actual process of authorisation that has been identified by the Delegated Powers and Regulatory Reform Committee in paragraphs 30 to 33 of its seventh report. Under Section 40E(1) and (2), as inserted by Clause 20—including as applied by Section 40C(7)—the Secretary of State may give an authorisation relating to the list B or list C articles.

These authorisations need not be given only to individuals: they may be given to persons generally or to descriptions of persons, and for all prisons or for descriptions of prisons. So, authorisations by the Secretary of State which relate to all prisons or to descriptions of prison may be given either in prison rules, subject of course to the negative procedure, or by the Secretary of State administratively. In other words, the Secretary of State has a choice.

The option of granting an authorisation by prison rules may recognise the fact that broad authorisations have, in effect, the legislative character of a general exemption. But the Bill does not require general authorisations to be given by rules, nor does the Home Office memorandum explain in what circumstances each different method will be used. The Delegated Powers Committee drew this position to the attention of the House so that we might ask the Minister to explain and justify in what circumstances the Government would propose to grant authorisations administratively and when they would choose to do it by prison rules.

Furthermore, that committee pointed out that under Section 40B(2)(a), and Section 40(3)(a) and (b), the Secretary of State may give an authorisation relating to list A articles. While an authorisation cannot cover persons generally, it can cover descriptions of person—not just individuals—and all prisons or descriptions of both prison and acts, not just a particular deed. The only formality required for even a wide authorisation, which could border on the legislative, is that the authorisation be in writing or recorded in writing. What seems strange is that the option of prison rules seems not to be available at all. The Delegated Powers Committee similarly drew this matter to the attention of the House, so that your Lordships might ask the Minister to justify that position. We therefore tabled these amendments to enable the Government to do so, which I hope is to the satisfaction of the Committee today. I beg to move.

I support two of these three amendments, and I do so because I remember that when the European Convention on Human Rights was being introduced to this country, I asked a lawyer to run through prison rules to see whether they complied with the convention and to see whether there was any difference. We were warned at that time that there was likely to be a considerable amount of legislation raised by prisoners alleging that their human rights had been breached.

In fact, it turned out that there is no difference at all; everything in prison rules is already incorporated in the human rights. So, if those rights have been breached then prison rules have been breached, and those rules are what the prison service is there to maintain. Therefore, any change that affects prison rules also has a human rights dimension if prison rules are not included.

I am grateful to the noble Baroness for tabling these amendments and I hope that, on hearing my response, she will recognise that we have tried to be as helpful as we can. The purpose of Clause 19, as was explained in part earlier, is to update and refine existing offences of conveying illicit items into or out of prisons. This clause offers greater clarity in describing the three bands of lists.

Clause 20 creates new offences such as that of taking a photograph or making a sound recording within a prison, or transmitting images or sounds from a prison without authorisation. We are introducing these new offences to keep pace with technology. Also, pictures taken within prisons can compromise security and potentially aid escape. I am sure that we are all concerned about that. Images of prison keys, locks and other security equipment or recordings of conversations could, if they entered the public domain, pose a threat to the secure custody of prisoners.

Under Clauses 19 and 20, offences are not committed when authorisation has been granted. We recognise that there will be times when both prison staff and those from external agencies may need to take articles that are otherwise prohibited into or out of prisons to carry out essential duties. The Bill provides for authorisations to be granted in those circumstances. That is why the regime is described in a certain way.

Amendment No. 109, tabled by the noble Baroness, Lady Anelay, and supported by the noble Lord, Lord Ramsbotham, is intended to add to the ways in which persons can be granted authorisations in relation to prohibited items in list A. List A items are the most serious category and include controlled drugs, explosives and firearms. As the Bill is drafted, only the Secretary of State can grant authorisations in relation to all prisons or prisons of a specific nature, whereas any authorisation can be granted by the Secretary of State or by prison rules in respect of list B and C items. The amendment seeks to also allow authorisations for list A items to be granted by prison rules.

We envisage that the prison rules will be used for granting authorisations in more routine circumstances. When we first drafted this clause we did not consider that there were any routine circumstances in which there might be a need for authorisations for list A articles. However, on reflection, that could be useful and we can envisage use for articles such as controlled drugs for medical prescription, ambulance teams attending an emergency, controlled drugs and explosive substances for training purposes, or for operational emergency teams that may sometimes be deployed in prisons to assist in order and control. We are content to consider the amendment further with a view to returning to your Lordships’ House on Report with something that fits the bill, as it were.

In Amendments Nos. 110 and 111, the noble Baroness, Lady Anelay, seeks to require the Secretary of State to lay before both Houses a statement setting out the circumstances in which authorisation may be given by the Secretary of State. These amendments are unnecessary and inappropriate. In the vast majority of cases, we will be able to anticipate well in advance the need to grant an authorisation that can readily be achieved under the prison rules, which are already subject to negative procedure. This will give Members of both Houses the opportunity to comment, where appropriate, on the circumstances of such authorisations.

I anticipate that any authorisation granted by the Secretary of State will be in extremis, and that the power will not be used lightly. It is intended to address operational emergencies such as a serious riot, a severe terrorist incident or the outbreak of a national pandemic, which could require large-scale medical or police deployment. Highly sensitive issues might be involved and time could be at a premium. In such circumstances, it clearly would not be desirable or perhaps possible to seek affirmation from Parliament prior to granting the authorisation. The need to operate without delay could be critical and relate to life-threatening circumstances.

I hope that the noble Baroness, having heard that, will feel that her points, questions and concerns have been answered. I am sure that the noble Lord, Lord Ramsbotham, will want to bear those comments in mind as well. I am happy to table an amendment to satisfy the purpose of Amendment No. 109, but the other two amendments are not at all helpful.

I appreciate that the Minister has to read into the record why the Government think Amendments Nos. 110 and 111 would be unhelpful—inappropriate, as he put it—and unnecessary. I made it clear that they were probing, merely to get the Government to put on record their justification for the action that they have taken. I made it clear that I did not intend to see those amendments in the Bill. As the Minister said, they would create unnecessary delay. He knows that I am usually very hot on saying that there are appropriate times when delay is right. This is one occasion when delay would be wrong. However, we have brought forward a helpful reflection by the Government with regard to Amendment No. 109. I look forward to seeing the results of the Government’s reflections. I am sure that the Minister will not be surprised that I might retable the amendment at the last minute if an amendment does not appear from the Government.

I am grateful to the Minister. I know that the Government try to do best practice by tabling their amendments a week early. I would not wish to pre-empt the Government when they come forward with good will. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 110 not moved.]

On Question, Whether Clause 19, as amended, shall stand part of the Bill?

I noted what the Minister said about reconsidering particular bits of the drafting. While that is happening, could the whole of Clause 19 be looked at, because it takes four and two-third pages to say something which could be thought to be fairly straightforward?

No doubt parliamentary counsel will look at the rest of the clause, but knowing parliamentary counsel I would not hold out great hopes for considered brevity. However, the noble Lord makes a helpful point.

Clause 19, as amended, agreed to.

Clause 20 [Other offences relating to prison security]:

[Amendment No. 111 not moved.]

Clause 20 agreed to.

Clause 21 agreed to.

Clause 22 [Removal of requirement to appoint a medical officer etc]:

112: Clause 22, page 17, line 5, leave out subsection (1) and insert—

“(1) Section 7 of the Prison Act 1952 (c. 52) is amended as follows.

(2) In subsection (1) for “medical officer” substitute “health care manager”.

(3) In subsection (4) the words “and the medical officer shall be a registered medical practitioner” are omitted.”

The noble Lord said: I tabled the amendment amid some concern after reading in the Bill:

“It is no longer a requirement for there to be a medical officer appointed under section 7(1) of the Prison Act 1952…for each prison”.

I raised that because there certainly is every requirement to have someone in each prison who is responsible for the medical arrangements there. The medical arrangements are increasingly complex. They now consist of three separate contracts, for primary care, secondary care and mental health care. They consist of the oversight of the assessment arrangements when people arrive, which include not just physical but mental checks, checks to see whether drug treatment has been arranged and checks to make certain that people are not at risk. One hopes that there is increasing involvement with diversionary schemes for those with mental health disorders. There is also a need for someone in the prison to be responsible for ensuring that regular treatment of the right kind is available for the people who are there.

I agree entirely that the old description of “a doctor” goes back to the original Prison Act, when the three people who always lived inside the compound of a prison were the governor, the doctor and the chaplain. Things have now changed. Those people do not live in the prison and the doctor is now technically provided as a GP by the primary care trust with whom the contract is held. However, I remember from my time as Chief Inspector of Prisons that the healthcare arrangements depended on a prison having a manager who was responsible for those arrangements and was part of the prison’s management team, reporting directly to the governor. When I published a report on healthcare in 1996, I called it Patient or Prisoner? because there was considerable confusion over whether a prisoner in medical care was to be treated as a patient or a prisoner and a question over whose writ ran.

There is a proper healthcare manager post in the National Health Service and the holder is trained to be the manager of healthcare arrangements. My amendment is designed to suggest that in future, although it is no longer appropriate to use the term “a doctor” because the doctor is on call from trusts, there should be a requirement in the Bill for a properly trained healthcare manager in every prison to have responsibility for the healthcare arrangements in that prison, to make certain that they happen and to be responsible and accountable for them. Bearing in mind the number of times that we hear concerns expressed in your Lordships’ House about, for example, the inadequacy of mental health treatment, it seems to me that if we really care about improving the management of offenders we should not let this very important aspect of what goes on in every prison go by default merely because the term “a doctor” has gone out of use due to a change in circumstances. That is why I tabled the amendment. I beg to move.

I strongly support the amendment and wish to add a little to what my noble friend Lord Ramsbotham has said. The international human rights framework has, for obvious reasons, a substantial number of requirements about healthcare in prisons. Prisons are very risky places for health, both mental and physical: they are basically unhealthy. Prisoners are often unhealthy when they go to prison. In many countries, they do not get good healthcare when they are in prison and they are at the mercy of whatever healthcare is offered to them because they are in captivity. The international human rights framework requires that prisoners get healthcare equivalent to that in the outside community. In this respect, England and Wales does particularly well in using the NHS to provide such care. The framework also requires there to be a prison medical officer so that health is always on the agenda at management level in the prison. Someone in management can keep health on the agenda and ensure that it is given appropriate priority.

Health in prisons involves not just the healthcare of individuals who are held in prison; it also involves a number of policy questions. How are prisoners in segregation being held? Is segregation being used inappropriately for mentally ill people? Are people being adjudicated on as being fit for punishment when in fact they are not? Are people who come in full of drugs being appropriately detoxified? Is overcrowding so bad that it is a health risk? These are important matters above and beyond the healthcare of individual prisoners. They have a lot to do with saving life and a lot to do with running humane prisons. Therefore, I am very happy to support the amendment, not just because it is in accordance with the human rights framework, but because it is likely to ensure safer and more humane prisons.

I, too, was disappointed to see this provision in the Bill, which seems like another ingredient in the Government’s recipe for downgrading their responsibilities for the prison system.

Healthcare in prison is vital for the effective rehabilitation of offenders and the effective management of offenders. My honourable friend Edward Garnier raised the issue in another place. He pointed out, rightly, that while healthcare services within prison are now provided through the local primary care trust, as the noble Lord, Lord Ramsbotham, has reminded us, there is no guarantee that adequate provision will be made for the mentally ill.

The Minister in another place recognised the need for more appropriate and accurately targeted provision of rehabilitation for the mentally ill. I await the Minister’s response with the hope that she can expand further on this.

I support the amendment. I listened to my noble friend Lord Ramsbotham from the Bar. Yesterday, I had an e-mail from the BMA, which is very concerned about overcrowding in prisons. There should be a manager because when people have a sudden illness and have to be transferred out to a general hospital, they need to be escorted. Often prison staff are not on hand to do the escorting. That is a worry.

I was at a conference last week on prison health and dual diagnosis. There was great concern from all sorts of people about those with dual diagnosis: prisoners or patients, whatever you call them, with mental health problems and drug and alcohol problems. Sometimes they fall through the net of treatment because one department says that it belongs to the other.

I also spoke with several black people who were very concerned that not only dual diagnosis, but diagnoses of hidden things like sickle cell disease were often missed, which causes many black people considerable trouble. Therefore, more finance is needed for health in prisons, more people with expertise on these matters are needed and there is a need for more management when prisoners go out into the community, which is where great problems sometimes happen.

I, too, support everything that has been said about the amendment. All the points made are absolutely on the right track. I would like to mention women's prisons. It will be at least as important to have a healthcare manager who is skilled in the different needs for women. Again, as we have heard, many women in prison have not just one but several forms of health need.

The other side concerns children. The provision will be, I would have thought, at least as important for them, judging by the number of children in care who are in prison and who suffer from some form of illness. So I hope very much that there will be a reconsideration of this part of the Bill.

I am grateful to the noble Lord, Lord Ramsbotham, for tabling the amendment. Although it has been only a short discussion, there has been a lot of support for his concern. I well understand that concern. I must confess that when I started undertaking prison visits about 20 or 30 years ago—in a completely different capacity from when I became a Minister at the end of the 1990s—I was not greatly enamoured by what I saw. Although things had improved by the time that I became a Minister in the Home Office, I still thought that there was considerable room for improvement. The noble Lord, Lord Ramsbotham, has played an important role historically in helping the service to think more imaginatively about how services can be provided. He referred to his report back in 1996, which formed part of that discussion and debate.

There is a degree of misunderstanding about why Clause 22 is there. Yes, Clause 22 removes the requirement for prisons to appoint a medical officer, but it does so for a sensible reason. The National Health Service, through PCTs, now has responsibility for health services in prisons. That move was widely welcomed; it was supported by the noble Lord, Lord Ramsbotham; and a very important move it was. The noble Lord is right to draw attention to the issue, because that enables us to think more about what needs to be done to improve those services. I understand where he is coming from in wanting to see some functional responsibility, but the progress that is being made is being made for a reason. Perhaps as I go through the issues that have been raised, that will become clear.

Given what I have said, we do not think that it would be appropriate for prisons to appoint a manager for services over which they have no authority, nor to dictate to the National Health Service the appropriate structure under which those services should be provided. The original intention of requiring the appointment of a medical officer in legislation was to represent a specific role that had specific health-related responsibilities in a prison. Now that health services in prisons have been modernised, those responsibilities are no longer automatically the responsibility of one individual. Today, prison health services are provided by a multi-disciplinary team, so that the different medical needs and issues that have been referred to in this debate—whether relating to drugs, sickle cell or other such matters—can be picked up. Individual responsibilities belong to team members as appropriate.

If the intention behind the amendment is to ensure the continued engagement of the governing governor and the rest of the prison in health matters, our argument is simply that that does not necessitate legislation. Governing governors are shortly to be issued with a new Prison Service performance standard against which they will be audited and which is intended to ensure that they support the delivery of health services in the prison and recognise their continuing responsibility to contribute to improving the health of that prison population. That standard will include a requirement for a member of the prison board to be allocated responsibility for health issues and will contribute to ensuring that health issues remain high on the agenda of governing governors and their prisons. Having heard the debate, I should have thought that that move would have been widely welcomed in the House.

I hope that the noble Lord, Lord Ramsbotham, will agree that decisions on how healthcare is provided in the Prison Service are best handled by the National Health Service. After all, the noble Lord was one of those who put us in that general policy direction. I also hope that he will be reassured that adequate mechanisms are in place to ensure that the level of healthcare provision and the prioritisation of healthcare in prisons is suitably maintained.

Other issues were raised in the debate. The noble Baroness, Lady Stern, asked whether the clause we intended to put into the Bill contravened human rights. We responded to the report by the Joint Committee on Human Rights, which was entirely happy with our response. At paragraph 48, the committee states:

“The abolition of this requirement supports the continued improvement of prison health services, exemplified by their recent transfer to the NHS, and brings them into line with health services available to the general population”.

The noble Baroness, Lady Masham, made the point that some prisoners suffered from long-term drug addiction and mental health issues; what is known as a dual diagnosis. Our approach as a Government to addressing people’s mental health and substance misuse treatment needs is set out in the Department of Health’s recent guidance on the issue, Dual diagnosis in mental health inpatient and day hospital settings, which was published last October. It is our belief that providing people with mental health and substance misuse problems with the treatment they need should be the norm, not the exception. The draft guidance on dual diagnosis services for prisoners should be issued for consultation by the Department of Health this summer.

Finally, I think that the transfer of prison health services to the NHS has been a success and that we have a good case to make. Obviously, we are in a paradigm of continued improvement, and that is right, but it is worth saying that in 2003 £118 million was transferred from the Prison Service to the health service. Since 2006-07, £200 million per year has been invested in healthcare. Some £20 million of that investment has been spent on mental health in-reach services to provide professional services inside prisons for the first time. They are based in 102 prisons, and 360 new whole-time equivalent staff have been introduced, whose services are available across the entire prison estate.

The last two reports from the Chief Inspector of Prisons, Anne Owers, make specific mention of the improvements made in prison healthcare, saying that the involvement of primary care trusts has,

“undoubtedly assisted the progress towards equivalence of service”.

My case is not that everything in the prison estate is absolutely hunky-dory and as it should be, but it is an improving picture and one that is recognised not just by Anne Owers but more widely. We should seek to build on that.

The amendment has usefully enabled us to discuss the issue, but I do not believe that it is the right direction of travel. We are now improving healthcare provision for a range of health needs, and the service is more directly tailored to the needs of the prison population. I hope that the noble Lord will feel able to withdraw his amendment.

All noble Lords who have spoken agree that prison health services are getting better, but the point that I would like the noble Lord to answer is: who from the primary care trust working in the prison would say to the prison governor, “This segregation unit cannot be used for these mentally ill people”?

I think I made the point earlier that it was important to have multi-disciplinary teams whose members could pick up such sensitive issues—the noble Baroness has cited a particularly sensitive example—and it would be for that particular health official to make those representations. The governor would have to listen carefully to those representations because it would be important professional advice. The fact that there may not be a medical health officer with a specific title of the sort referred to by the noble Lord, Lord Ramsbotham, historically is neither here nor there. The person concerned will have a defined and specific responsibility, and they will focus on the issue. That is the best approach because it brings the right level of professionalism to bear.

Of course we accept that things are improving and it is good to know that extra funding is going into this area, but can the noble Lord confirm that he is satisfied that improvements are being made as fast for women and children as in the other areas that he outlined?

I think that I can confirm that that is the case, but I made the point that we were not uncritical about the way in which healthcare provision had developed in the prison estate. There is evidently room for improvement, and it is right that we should focus on that. It is in everyone’s interest that we improve the quality of healthcare. The healthcare of prisoners is carefully tailored to their specific needs and, of course, we need to be particularly aware of the needs of younger prisoners in the youth offender estate and the needs of women.

Perhaps the Minister will answer my question about the worry that doctors have when prisoners have to be transferred out to a hospital in the community and there is a shortage of prison officers to escort them. Who will organise that? It is a great frustration and worry for doctors.

Prisons are obsessed, quite rightly, with seeing that escort arrangements are in place whatever the pressure on the escort, whether the move is a transfer or is being done because of health-related issues. I understand the frustration that arises, particularly where specific health needs cannot be matched on the estate. I recognise that there is an issue, but it is being addressed. We have to listen to the advice that we are getting from venerable institutions such as the BMA.

I am grateful to the Minister for telling us what the arrangements are and that perhaps my concerns need not be reflected in the Bill. Like everyone else who has spoken, of course, I have been delighted to see the improvements in healthcare in prisons and the impact that bringing in the NHS has undoubtedly had. It is the only way in which you will achieve equivalence, which is the key word in all this.

I remain concerned that we do not yet know all the details of what the Minister has outlined. He said that there would be a standard to which matters had to conform and which would be guidance to the governor about what was to happen. He referred to a multi-disciplinary team. My concern about multi-disciplinary teams is that teams need a leader, and all the multi-disciplinary bits need to be pulled together. If I am the governor of a busy prison, I want someone who is responsible and accountable to me for making certain that all the things that I require actually happen. That includes healthcare. It is fine that there is a multi-disciplinary team, but I do not want all kinds of people knocking on my door; I want the person responsible coming to me and saying, “This is what is required to be done”, and the leader of the team making certain that it happens. The multi-disciplinary team will include people from the NHS organisations and others who come into work.

I would be grateful if, before Report, the Minister could let us have a copy of the guidance to governors so that we can see them and be satisfied, rather than merely dropping the issue completely. If he will agree to do that, I shall be happy to withdraw the amendment at this stage, with the clear indication that I may wish to return to it on Report if we do not have the satisfaction of seeing that document.

I have considered carefully what the noble Lord has said. I love the way in which he left the door wide open for himself to take a different view if, on having received some reassurance from our perspective, he did not necessarily agree with it.

I undertake to see what we can find to satisfy the noble Lord’s point. Whether or not it will be in the form of a draft, at this stage I am not prepared to commit, but I hear what the noble Lord says and I can understand why he might want some further measure of comfort and reassurance. I am grateful to him for raising this interesting debate.

Given that assurance, I am happy to withdraw the amendment at this stage with the proviso that I have mentioned.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 agreed to.

112A: After Clause 23, insert the following new Clause—

“Independent Monitoring Boards

(1) The boards appointed under section 6 of the Prison Act 1952 (c. 52) (boards of visitors) are renamed as Independent Monitoring Boards.

(2) Accordingly, in section 6 of that Act—

(a) for the sidenote there is substituted “Independent Monitoring Boards”;(b) in subsection (2)—(i) for “boards of visitors” there is substituted “group of independent monitors”; and(ii) the words from “of whom” to the end shall cease to have effect;(c) after subsection (2) there is inserted—“(2A) The groups so appointed are to be known as Independent Monitoring Boards.”;

(d) in subsection (3) for “boards of visitors” and “a board of visitors” there is substituted respectively “Independent Monitoring Boards” and “an Independent Monitoring Board”.(3) In section 19 of that Act (right of justices to visit prison), in subsection (3) for “visiting committee or the board of visitors” there is substituted “Independent Monitoring Board”.

(4) In Part 2 of Schedule 1A to the Race Relations Act 1976 (c. 74) (public bodies and other persons subject to general statutory duty), there is inserted, in the appropriate place under the heading “Other Bodies Etc.”, the following entry—“An Independent Monitoring Board appointed under section 6(2) of the Prison Act 1952.”.

(5) In section 50 of the Employment Rights Act 1996 (c. 18) (right to time off for public duties)—

(a) in subsection (2)(d), for “a board of prison visitors” there is substituted “an Independent Monitoring Board for a prison”; and(b) in subsection (7)(a), for the words from the beginning to “of visitors” there is substituted “Independent Monitoring Board” means a board”.(6) In section 99 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (conversion of sentence of detention or custody to sentence of imprisonment), in subsection (1)(b) for “boards of visitors” there is substituted “Independent Monitoring Board”.

(7) In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (c. 36) (public authorities: other public bodies and offices) there is inserted, in the appropriate place, the following entry—

“Any Independent Monitoring Board established under section 6(2) of the Prison Act 1952.””

The noble Baroness said: This new clause is really a tidying-up matter, and I hope the Government will accept it in that spirit. It is straightforward and aims to give effect to recommendations coming out of the review into boards of visitors by Sir Peter Lloyd that were accepted by the Government. I declare an interest as president of the Association of Members of Independent Monitoring Boards.

One of the recommendations to come out of the review was that the title “board of visitors” should be changed to “independent monitoring board”. That was partly because confusion had arisen regularly between the roles of boards of visitors and prison visitors, but, more importantly, it was to reflect the proper role and functions of those bodies—they do not just visit. First, it aimed to emphasise the independence of the boards to make it clear that they were independent of the Prison Service and, indeed, of the Government. It was also important that they should be known and seen as “monitors” rather than “visitors”, as monitoring is their proper function.

The amendments also give effect to the recommendation in the Lloyd review to remove the requirement that two members of the board are magistrates. That might have been appropriate in years gone by, when boards of visitors had an adjudicatory function in relation to prisoners’ breaches of discipline, but that has not been the case for at least 15 years. It is therefore no longer necessary to have magistrates on boards as a legal requirement, although of course many of them are on boards and they bring a great deal to the work.

I am sure the Government support the work of independent monitoring boards, and I hope they will also support this tidying-up amendment. I beg to move.

I support the amendment, which underlines the central importance in the Bill of IMBs, once the boards of visitors. They represent the interface between the prison and the public. They monitor what goes on inside on our behalf, and do so through regular, sometimes unannounced visits. They can pick up anything that seems unsatisfactory, whether from a management or a prisoner point of view. It is important that they are robust and truly independent, and they deserve all the support we can give them.

I am grateful to my noble friend Lady Stern for proposing the amendment, which the Government are very willing to consider. However, it is likely to require some drafting changes because its purpose appears to be to give statutory effect to two of the recommendations that came out of Sir Peter Lloyd’s review of boards of visitors in 2001, which were accepted by Ministers at the time. Boards of visitors have been known as independent monitoring boards since 2003, and the amendment would usefully give statutory effect to the change of title. Independent monitoring boards comprise, as I am sure most noble Lords know, unpaid volunteers from the local community, appointed by Ministers to monitor the humane and just treatment of those held in prison. It is a vital role, carried out by dedicated individuals who do not seek, and indeed rarely receive, much recognition for their work. That is not to say that they are not greatly appreciated; they are. The Government greatly value their contribution.

It is worth advising the Committee that we are also willing to consider the removal of the statutory requirement that at least two members of the board be magistrates. That might have been needed, as the noble Baroness has said, when the boards had an adjudicatory function in relation to prisoners’ breaches of discipline, but that was removed from boards some 15 years ago, following concerns that it compromised boards’ perceived impartiality. It therefore seems to us no longer necessary to have magistrates on boards as a specific legal requirement, though of course their presence has another validity. I am sure that they will carry on as unpaid volunteers, just as others do. So we are willing to consider the amendment and we shall give statutory effect to the changes, but the amendment will need some minor drafting alterations and we would hope to bring it back at Report.

I thank the noble Lord very much for that helpful, encouraging reply. We seem to have been singing from the same hymn sheet in this regard, and I look forward to seeing a much better-drafted version at Report. In the light of that, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

112B: After Clause 23, insert the following new Clause—

“Offender Management Board

(1) There shall be a board to be known as the Offender Management Board (“the Board”).

(2) The Board shall be based within the Ministry of Justice.

(3) The members of the Board shall include—

(a) the Secretary of State who shall act as chairman,(b) the Director-General of the Prison Service,(c) the Director of the National Probation Service,(d) the chairman of the Youth Justice Board, and(e) other persons who the Secretary of State may nominate.(4) The Board shall be responsible for—

(a) disseminating policy to, and(b) establishing good practice with respect to,all organisations involved in the operation of the offender management system.

(5) In carrying out its functions, the Board shall comply with any directions given by the Secretary of State and act in accordance with any guidance given by him.”

The noble Lord said: I can almost anticipate the words with which this amendment will be greeted. I was moved to table it after reading two separate documents. One was the Bill itself—Clauses 2 to 6 are all about the functions of the Secretary of State. The second document had the most confused cover I have ever come across in my life; it is called nomsheadquartersspecial, with a description inside of NOMS headquarters. As we are talking about how the Secretary of State functions and runs the National Offender Management Service, I would have expected this document to show how direction comes from the top down to the various parts of the system. In vain did I look; there is no mention of the director-general of the Prison Service anywhere; the director of probation comes under the management of someone called the director of performance and improvement; and I could not find the chairman of the Youth Justice Board.

We look forward to debating the recent report from the noble Baroness, Lady Corston, and hope that out of it will come something like a women’s justice board or a women’s commission. But, in view of that, what seemed to be missing was some overarching body through which the Secretary of State directed the affairs and policy in the whole system. It seems that NOMS is really all about commissioning. There are masses of policies on this, that and the other, with boards all over the place and commissioning and contestability programmes and so on, but the people responsible for the management of offenders do not seem to feature in it. I am concerned that the director of the Probation Service—we spent three days discussing probation—is subsumed under a director of performance and improvement rather than being the leader of an important service in his or her own right.

I included in my amendment certain things that, ever since becoming involved with the criminal justice system, I have felt are missing in the overall delivery of the services that the system is required to produce. One of those is disseminating policy. What I feel is missing—I make no apologies for referring to it now—is a structure in which responsibility and accountability go very clearly from the top to the bottom. I have mentioned in this House before my concern that within the Prison Service, for example, there is not somebody in charge of women, children or young offenders, other than in high-security prisons. There are policy people but no one is responsible for seeing that things are done consistently in every prison of a particular type throughout the United Kingdom. When I look at examples of good practice, I am desperately concerned that they are not spread. They are not spread because there is no one responsible and accountable for seeing that the overall performance in each prison of that type develops according to practice that they can spread within it. At the same time, there is the frightful problem of prison governors changing. Immediately there is a change of governor, everything in the prison changes rather than the new governor picking up where things have been left off and carrying on consistently with policies, which results in improvements being made and staff knowing where they are.

If we are talking about a commissioning and contestability environment, with other people coming in, it is desperately important that leadership on what they are meant to do is clear, consistent and well known. I am concerned that, however this is done—no doubt I shall be told that such a board already exists and what I am suggesting is already happening—the evidence is not there on the ground. The end-to-end offender management and partnership that everyone wants needs a structure with people to make it work. Therefore, fully expecting to hear that the Minister does not feel that this should form part of the Bill, I nevertheless feel that it should form part of the discussion on it so that when consideration is given to how it might be processed and how the issues I have raised will be included in how offender management is conducted, it is there for people to see and examine. I think that this is a helpful amendment and I beg to move.

I am grateful to the noble Lord, Lord Ramsbotham, for moving the amendment. As we discussed Part 1 over a few days, it became increasingly clear that it was difficult to discern the co-ordination between probation delivery and the delivery of services within the prison estate. Although the Bill refers to offender management, the commissioning environment into which we are entering appears to concentrate the effort of the Government on producing organograms about how the commissioning would be done, but we could not see how that was seated within effective and clear lines of accountability and responsibility. The noble Lord, Lord Ramsbotham, is trying to find out from the Government about the overall view by the Secretary of State on where things are going wrong and how to plug the gap.

The Minister has told us that, in the process of contestability, the Secretary of State would not always wish to commission services himself or herself but would delegate that to local areas. That was her attempt to dissuade me from supporting localism, as I see it. The difficulty is that if the Secretary of State wields the big stick and says to a local probation trust that it is not doing what it should and will not be allowed to commission services, he or she has to have a clear overview of what is happening and needs a clear reporting system up to him or her in order to take the appropriate decisions.

The Minister may simply say that there are ROMs—regional offender managers—in place and that, as there is a regional structure, we should not worry. The problem is that the documents to which the noble Lord, Lord Ramsbotham, refers cloud the issue. They look very good as far as concerns management-speak but not in the real world of trying to deliver services to what will be a multiplicity of contracting bodies.

I am trying to find my way through this mesh of different bodies. If the Secretary of State steps in and says that probation trusts in an area have failed miserably and that he is going to seize power and commission services, how will he make those decisions, given, as the noble Lord, Lord Ramsbotham, said, that the organogram we have been looking at seems well and truly to bury probation services?

I, too, support this important and helpful amendment. We are trying to move from management-speak to organisation-speak—the noble Baroness mentioned organograms. As the noble Lord, Lord Ramsbotham, said, the amendment would establish the need for an overarching board for offender management, which would bring coherence and comprehensibility, currently lacking, to the structure which the Bill envisages. Most importantly, the board would include in its membership both the director-general of the Prison Service and the chairman of the Youth Justice Board, both of whom represent two key bodies which have virtually no place in the Bill as it is drafted, which is a major omission. When so many offenders, both young and not-so-young, are detained in prison for at least part of a sentence, it must be axiomatic that those who are responsible for them while inside have a place at the table and a part to play in planning for them on release into the community. This applies above all to the most crucial moment of transition, when even the best-laid resettlement plans can unravel, as they frequently do when the prison and probation services do not communicate as well as they could or should, and even sometimes when they do. Those two people must have a seat at the table.

I certainly support the concerns behind the amendment; I am perhaps a little ambivalent about the need for a national body such as it proposes. My noble friend Lord Ramsbotham mentioned in particular what is happening regarding women’s prisons. I make no apology for raising it, because we still have not had a debate on the Corston report, which is crucial to women in prison and preventing them going into prison. The implementation of a number of its proposals would be valuable, too, in the context of the overall prison population, applying to men and women. Will the Minister tell us when we will debate the Corston report and whether the Government have already taken account of what it said in the plans that they have already worked out? If we at least knew that they had taken on board the report’s proposals and ideas as they go forward, it would give some comfort.

I thank all those who have spoken, particularly the noble Lord, Lord Ramsbotham, who has an insatiable interest in how the Government manage their day-to-day business. I thank him for that oversight.

Policy on this matter is now very much in the hands of the Ministry of Justice. This Government believe that the way of delivering what the noble Lord proposed is a matter for the Ministry of Justice, and that specifying governance as suggested is neither necessary nor appropriate for the Bill.

As the noble Lord anticipated, a number of mechanisms in NOMS serve the purposes of the proposed board, ensuring the quality of new policy and practice being promulgated to prisons and probation services. I am very conscious that some noble Lords who have been listening to this debate may not be as interested in the minute detail as others, so I shall seek to outline the framework. It might be helpful if I wrote in slightly more detail to those who find this issue endlessly—and appropriately—fascinating.

At the highest level, the National Offender Management Service aims to deliver reduced reoffending and increased public protection, both of which require an environment in which improving standards of offender management are actively embraced, and the director-general of the Prison Service and the director of the Probation Service both sit on its management board. This is chaired by the chief executive of NOMS, who also sits on the Ministry of Justice board, which is chaired in turn by the Secretary of State, who is by that mechanism kept abreast of and intimately involved in managing the management of offenders. Structures slightly lower down within NOMS plan and manage the implementation of offender management and develop and promulgate improved practices, working closely with operational colleagues. I respectfully suggest that a new board would not add value to this work, and indeed it is quite likely that a new board at the level proposed would substantially increase bureaucracy and delay in what we want to be a flexible and innovative area of work.

From the privileged debates that I have been able to listen to in this House, I know that the noble Baroness, Lady Anelay, the noble Lord, Lord Ramsbotham, and others all abhor bureaucracy and wish us to keep it to an absolute minimum—and we agree. Of course, we recognise that there will be a need to keep structures currently in place under review, particularly following the passage and implementation of a Bill of this magnitude and importance, to ensure that we always have the best systems in place to respond to the current issues.

The National Offender Management Service is a self-standing commissioning organisation, aiming to encourage innovation and new approaches by a range of providers in addressing its core aims of reducing reoffending and protecting the public. In doing that, it is responsible itself for the management of all offenders by providing leadership to the providers who carry out the work. In that regard, I agree with the noble Lord, Lord Ramsbotham, that leadership is of immense importance. We wish to enhance the leadership opportunities and skills of the service to make sure that we need and deliver the changes that we all aspire to see. By the nature of the system, it is at the centre of NOMS and has to strive to specify what providers must supply in the least prescriptive terms possible, and the governance must reflect that.

I have said on a number of occasions in our debates that we have to focus on outcomes, delivery and change. Establishing a board of this type and at this level would fly in the face of that principle, increasing restrictions on innovation and on our opportunity to get the very best from the system. We all agree that we do not want to slow the process down. We all accept that it has to be dynamic. The dynamism that we wish to see has to be deliverable by NOMS, the organisation at its very centre. More than anything, we must keep at the front of our minds the need to use offender management services that meet the needs of offenders and achieve the aims of NOMS—making offenders less likely to reoffend and keeping the public safe.

I hope that the noble Baroness will understand when I say that that I was glad that she was late for the reasons that she gave. It is important for us to go and taste and see what is happening on the ground. It gives one a much better understanding of why change is necessary and how change may be deliverable. I agree with her if her assessment of the project that she saw today was that it was of a high quality. It gives one hope for the way forward that we may be able to chart together. All that is of real importance and we need to keep it as our clear focus.

Clearly, we shall listen to what those on the front line tell us about our delivery structures. We are told by them that the current structure is well suited to its intended purpose. Therefore, I agree with the noble Baroness, Lady Anelay, that we have to do that which is attuned to front-line delivery, and that what works is best, not necessarily the “speak” that we get from others or even in this House. To set out in legislation something which ought to be determined by those with the greatest knowledge of how best to shape the organisation in order to drive standards in that area would, if I may respectfully suggest, be rather dangerous and, at the very least, ill conceived. We must allow them to do the jobs for which they are accountable without inappropriate interference that might hamper them. We should give them structure, a framework and the liberty to do that which they are entrusted to do.

Of course, I hear what the noble Baroness, Lady Howe, said in relation to the report of my noble friend Lady Corston. Like others, I immediately alighted on its significance and importance and the need for us to respond to it comprehensively. I refer not just to the Home Office and the Ministry of Justice, but to all the other departments that the report touches. I have heard noble Lords say that they wish the Government to respond comprehensively. It is open to any noble Lord to table a Question or ask for a debate at any time. However, the majority have felt it appropriate to await the Government’s response. We hope that the response will be comprehensive and that it will give us something to talk about. We shall make sure that it is made available to all those who are most anxious to see it as soon as it is ready. I cannot give the Committee a date for that but I am confident that it would rather have a comprehensive response from the whole of government than a partial one.

The Minister will know that the whole Committee is grateful to hear the Government’s view that they must respond coherently on these matters. The Corston report is significant. I am delighted to see the noble Baroness, Lady Corston, in her place. Is the Minister aware—I am sure she is—that we are shortly to enter a phase in which no Thursdays are available for the parties and the Cross Benches to table debates? Therefore, we shall shortly be at a significant disadvantage in that we will not be able to table a Thursday debate on the report. Will she bear in mind that there might therefore be pressure through the usual channels for the Government to make time available to debate their response to this significant matter?

I am aware of that potential difficulty but I believe that it will be overcome because noble Lords have a wonderful ability to debate those matters that they really want to discuss. This is an issue on which noble Lords have clear and strong views. This side understands the importance of the report. The Minister dealing with this issue in the Ministry of Justice, my honourable friend Vera Baird, has a long history of passionate engagement in this area. I assure the Committee that we all wish to have a proper opportunity to consider, in the most supportive manner possible, what the report says.

I am most grateful to the Minister for the comprehensive way in which she responded to the amendment and the spirit in which she did so. I would be the last person in the world to want another board imposed. Therefore, I am extremely glad to hear that there is a board, which I hope will take on some of the responsibilities which I listed in the amendment. I was also delighted to hear mention of the future role of the Ministry of Justice and am delighted to see the noble Baroness, Lady Ashton, in her place. We look forward to taking part in these discussions with her and I was glad that she was here for this amendment to be able to pick up the flavour of people’s concerns.

I was also glad to hear the point about the Corston report because, as the noble Baroness knows, I deferred a Cross-Bench debate that I had secured on account of the fact that the Government had not had time to prepare their response. I had agreed to withdraw it until that was done, but the clock is ticking. That was deferred from 9 May and we are now getting on towards the end of June. I hope that it will be soon, because as the Committee has brought out, the needs of women in the criminal justice system increasingly require leadership as well as direction. But in the spirit that the points I have made have been taken on board, are being discussed and are to be taken forward by the Ministry of Justice, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

112C: Before Clause 24, insert the following new Clause—

“Duty to promote children’s welfareDuty to promote children’s welfare

The Secretary of State shall by regulations provide for all individuals and agencies responsible for the management of offenders to be subject to a duty to have regard to the need to protect and promote the welfare of the children of offenders including, in particular, the children of those serving prison sentences.”

The noble Lord said: The amendment is not about children who are in prison or about to go to prison, but about the welfare of that small but often disadvantaged subgroup of the nation’s children who have a parent or parents in prison. It is also about reducing offending, which is one of the Government’s main objectives in the Bill. I shall give a few facts. Dodd and Hunter in 1992 said:

“There are no accurate, up-to-date estimates of the numbers of imprisoned parents, or children of imprisoned parents, in the UK. The last National Prison Survey in England and Wales reported that 47 per cent of female prisoners and 32 per cent of male prisoners had children living with them before coming to prison”.

It is estimated today that some 150,000 children in the United Kingdom have a parent in prison. Often those children and their families become seriously disadvantaged. They are the innocent victims of imprisonment. In preparing for the amendment I was greatly helped by and wish to give credit to Dr Shad Maruna of Queen’s University Belfast and through him to Dr Joseph Murray and Dr David Farrington of the Institute of Criminology at Cambridge. I shall quote first from a report by Murray and Farrington, which is shortly to be published. They have said:

“It is surprising that researchers and policy makers have largely neglected to consider the effects of parental imprisonment on children. As Shaw in 1987 pointed out over twenty years ago, if we do not attend to the effects of imprisonment on children we run the risk of punishing innocent victims, neglecting seriously an at risk group, and possibly causing crime in the next generation”.

The number of children experiencing parental imprisonment is increasing in the western industrialised countries. Parental imprisonment has been shown to be a factor for child anti-social behaviour, offending, mental health problems, drug abuse, school failure and unemployment. Children of prisoners are at much higher risk than their peers—about three times as great—for their own anti-social behaviour; for mental health it is about twice the risk and probably about the same for educational outcomes. The latest results from the Cambridge study also suggest that they are at risk for drug abuse and unemployment.

A 2006 Cambridge study of delinquent development—a longitudinal study of 400 males—showed that 48 per cent of boys who were separated because of parental imprisonment in their first 10 years of life were later convicted as adults, compared with only 14 per cent in a control sample whose parents were not imprisoned. Murray and Farrington conclude:

“Parental imprisonment is a strong risk factor for”,

and a possible cause of,

“a range of adverse outcomes for children, including anti-social behaviour, offending, mental health problems, drug abuse, school failure, and subsequent unemployment”.

A recent Joseph Rowntree Foundation report of May 2007 on research carried out by the Institute of Psychiatry at King’s College London confirms the Cambridge findings. It says that,

“criminal justice and social welfare policy combine to impoverish, disadvantage and exclude prisoners' families, and their children in particular”.

It goes on to point out:

“Maintaining family relationships during imprisonment was financially draining”.

Yet, at the same time,

“families are officially recognised as significant in enabling the successful resettlement of prisoners”.

The Social Exclusion Unit identified that fact in 2002, so that information has been available for some time.

I could produce more evidence, but the Committee has probably had enough, and the examples that I have given are probably sufficient to establish that the impact of imprisonment on children is a serious social issue, which all those concerned with offender management should have at the front of their minds when taking decisions about imprisonment, prisoners and prisoner management. They should consider in particular the way in which prisoners’ ongoing relationship with their children can best be facilitated and fostered before, during and after imprisonment. If the son becomes a criminal as a result of the father’s imprisonment, whether or not the father reoffends, the offender management service will have failed. The importance of this issue justifies it having a place in the Bill. I beg to move.

I support my noble friend’s important amendment, having had the pleasure of seeing an improvement in the arrangements throughout the prison system for visitors and visits, many of which depended on the devoted activity of voluntary organisations. I pay great tribute to a number of those organisations for the help that they have given. I always thought that a number of prisons could do more for visitors, not least because visits to prison are enormously draining both for the prisoner and for the family, and that arrangements should be made to help the family through that process before their journey home. I also pay tribute to organisations such as Safeground, which runs a marvellous series of courses called Family Man, which are designed to do what they can to mitigate the experience of imprisonment on relationships between parents, particularly fathers, and their children. It is marvellous work, which I am sure could be expanded.

Noble Lords asked about the practical things that could be done. I have always thought that this was one of the biggest justifications for the call made by the noble and learned Lord, Lord Woolf, in his marvellous report after the Strangeways riots, for community clusters of prisons to be set up so that prisons were grouped in each part of the country, sufficient to hold people from that part of the country so that they did not have to go too far away, except if they were in high security prisons. If we have that basic structure, we can build on it in the ways suggested by the noble Lord, Lord Northbourne, within a more stable structure.

I, too, very much support the amendment. As a judge in my previous life, I had considerable experience of children coming before me whose parents were in prison. I cannot say how many children came before me, but there were certainly hundreds. It was extremely interesting to note the enormous benefit for those children of retaining contact as much with the father as with the mother. Clearly the mother was crucial, but the contact that children could have with the father in prison was extremely valuable in many, many instances and settled children who otherwise were suffering quite severely. These beneficial visits were very difficult to arrange. Prisons varied in their support for these visits. To my sorrow, on numerous occasions, it simply was not possible for these children to see their fathers because, as the noble Lord, Lord Ramsbotham, said, the fathers were placed too far away. The mother had no money and did not get social benefit to go on a trip, so it often required social workers to help. A clause like this, flagging up the enormous importance of the welfare of this group of children—150,000 children, as the noble Lord, Lord Northbourne, told us—will be a valuable and, perhaps, salutary reminder for some organisers and for those who are in charge of arrangements for allowing children to see their parents. I strongly support this amendment.

From these Benches, I, too, very much support this amendment. I remember, not so very long ago, standing in the queue to get into a prison to take a confirmation. A carer and the young black child with her were just in front of me, but when they got to the relevant authority at the prison gate they were told that they were 10 minutes too late to get in. In spite of my efforts and those of others, they were turned away. We had a child in floods of tears, not able to go and see its parent, which was a salutary experience for me.

To back up the comments of the noble Lord, Lord Ramsbotham, in the two prisons in my present diocese and the four in my previous diocese, the work of voluntary organisations, including church-based organisations—the Mothers’ Union works in 50 or more prisons in this country, running play centres for children, homework clubs that enable children to work with their fathers, and so forth—is utterly dependent not only on the quality of prison governorship but on the quality and attitudes of the prison staff. Anything that we can do to underline that this is a basic duty, by which everybody has to abide, ought to be welcomed.

I support this amendment. My noble friend Lord Northbourne has already given some evidence from England of the probability that the children of prisoners will commit crimes themselves. That is confirmed from experience in Northern Ireland, where I still have the privilege of being president of NIACRO.

Some years ago, our organisation published a report on the impact of imprisonment on spouses and children, entitled The Silent Sentence. Responding to those needs, we first organised welfare and human rights advice—usually for the wife, who was outside the prison. We also arranged special weekends for mothers and children, and maybe occasionally for the odd father. Later on, we developed what came to be known as child-centred visits, where special arrangements were made with the prison so that the child could easily and fully relate to his father. That entailed a good deal of co-operation from the Prison Service, which to the best of my knowledge still continues in at least one Northern Ireland prison.

Separately from that work, it has occurred to me that when a woman with the care of children is sentenced, there might be time allowed before actually entering prison so that she can make the best possible arrangements for the future care of the children for whom she is responsible. I have taken that up with the noble Baroness, Lady Scotland, but I am not sure whether we have made progress. I hope that we have, but I am uncertain. With those words I commend the amendment.

I warmly support the concern of the noble Lord, Lord Northbourne. Whether or not the amendment becomes part of the Bill, it was right for him to draw our attention to this crucial issue. It is tremendously important for my noble friend to provide reassurances not just on how this matter will be kept under review, but on how we always endeavour to improve performance.

I hope that the Committee will forgive me for repeating an anecdote that I have previously recounted in this Chamber. When I visited Holloway prison with the Joint Committee on Human Rights, I was astounded when very concerned prison officers told me that sometimes, when they had stayed beyond their normal hours to receive prisoners, they discovered that some of the prisoners had left unattended children at home. It is scandalous that that could ever happen in a civilised society. It may be an extreme example, but it illustrates the need for constant vigilance.

The issue raised by the noble Lord, Lord Northbourne, is very important. We should not just state that it is the responsibility of those managing offenders to promote the welfare of children. All relevant parts of public and social services concerned with children—not least education—should have very high in their priorities a focus on prisoners’ children and their needs. Co-operation is needed.

During recent deliberations of the Joint Committee on Human Rights on asylum, I was far from alone in the committee in recognising that our system lacked an identifiable champion of the child. Parents in prison are never going to have the same status in the care of and arrangements for their children as parents outside. That will not happen. In that context we need to be certain that people with specific responsibility pursue what parents would normally vigorously pursue on behalf of their children. This is another example of the sensitivity, compassion and imagination of the noble Lord, Lord Northbourne, and I am sure that I speak for many other noble Lords. His comments need to be taken extremely seriously.

I, too, support the amendment. We welcome the Government’s amendment that places in the Bill, under Section 10 of the Children Act 2004, a duty on probation boards and/or trusts or other providers to co-operate with local children’s trust arrangements to improve the well-being of children and young people. The Government’s amendment also, under Section 11 of that Act, places on providers a need to safeguard and promote the welfare of children. We also support the fact that the amendment of the noble Lord, Lord Northbourne, places a duty of care for children right at the beginning of Part 3 of the Bill, thus affirming its primacy as the number one priority regarding children.

The issues surrounding offender management discussed by this Committee in the past few days have been curiously free of almost any mention of children—who are deeply involved and affected by what happens to any member of their family who becomes involved in the criminal justice system—except when we discussed staff training today.

I continuously observed the relevance of children’s needs in our visitor centre at Pentonville—the very first such centre, back in 1972. Everything that the noble Lord, Lord Judd, said, resonates with my experience. We would deal with children who kept under their hats the fact that they had lost a parent to prison and were beginning to create anxieties at school. At home, wives would often be left high and dry because their partner had not come home and he was under lock and key, and we saw what that could do to the family’s dynamics. Our centre has given rise to the network of visitor centres that we have today throughout the country, where inter alia children’s needs are recognised and can be supported. That work is choreographed and significantly developed by Action for Prisoners’ Families, of which I am a patron.

A few years ago a report on the effect on children of losing a parent to prison, No-one’s Ever Asked Me, gave a most poignant account entirely through the children’s own words of what it meant to them to lose a parent to prison. In effect, it is a bereavement. As we have heard, every year there are tens of thousands of these children who lose a parent to prison. Also, a recent report on the effect of losing a sibling to prison highlighted just how important relationships with siblings are. Indeed, current thinking suggests that they may be of far greater importance than those with a parent for children growing up and particularly at a certain age. To lose, say, an elder brother was, for younger siblings, deeply traumatic.

It is well established, as we have heard, that a child who loses a parent to prison becomes significantly more likely to be involved in the criminal justice system. For these and many more reasons, which I will not elaborate on now, the very real importance of the duty of care at least having pole position in the Bill is clear and we support the amendment.

I, too support my noble friend’s amendment and, in doing so, focus on one question about the booking of visits and the booking process. In the past I have found, in telephoning a number of prisons, that it is possible to raise someone after five minutes or so, but it has taken me up to half an hour to get through on the telephone. I understand that at that time the Government were seeking to make improvements in this area. I would be grateful to hear reassurance from the Minister that there is now a maximum expected time and a way of monitoring that, ensuring that booking visits is easy to do.

What arrangements are there to ensure that children in public care also have the opportunity to visit their siblings or parent while in custody? Children in care feel very passionately about keeping in touch with the family. Many of them have spoken to me about their wish to keep in touch with their siblings as far as possible.

I add my support to the amendment. Almost everything that I would have said myself has been said, so I merely endorse what everybody has said. It is encouraging that the Government have tabled an amendment. I support what the noble Baroness, Lady Linklater of Butterstone, said about where this should be. I endorse everything that the noble Lord, Lord Judd, said, above all about the need for partnerships between the state and the voluntary sector. I am thinking not only of the people but of the safeguard mentioned. I know that Home-Start is in a number of partnerships with Sure Start organisations. Here they could not be more needed.

I also take the opportunity to say how much we all really appreciate, and should celebrate rather more, what the church does. The list of support that the right reverend Prelate drew our attention to is often overlooked. What the church does in this respect is quite magnificent, setting an example to the rest of us. The church is way ahead in most areas in providing this kind of support. I very much support the amendment.

I join other noble Lords in congratulating the noble Lord, Lord Northbourne, on giving the Committee the opportunity to have this important debate.

Noble Lords have, perhaps understandably, concentrated on the aspect of the amendment that addresses the issue of the children of those serving custodial sentences. However, in drafting his amendment the noble Lord was rightly very careful to direct our attention across the whole of the offender estate. No doubt all noble Lords can see how important it is for offender management—whether of those in prison or those in the community—to have regard to the welfare of children. I do not think that the Government will resile from that—in fact, just the opposite. I am sure that the Minister will say that that is at the heart of everything that they do. The difficulty is always in balancing that against the other duties of those who must also protect the public.

I would certainly wish to see any offender management system have close regard to the welfare of children. There is no doubt that there is a beneficial effect on offenders if they maintain contact with their families, although they may not view it as such at the time. I am very aware that some fathers, in particular, do not wish to see their children ever again. They want to move on and leave that family tie behind, but it may well benefit offenders if they do not do so. Retaining contact with their children may be part of their rehabilitation. I am certainly aware that it will benefit most children to have contact with the parent, but that is not so in every case. We should always remember that contact with a parent has blighted the lives of some children and will continue to do so. Therefore, contact with a parent may not necessarily always be conducive to a child’s welfare, and that is the difficult balance that must be addressed in any offender management system.

I anticipate that the Minister will say some very warm words but not accept the amendment as drafted. I hope that, in congratulating the noble Lord, Lord Northbourne, she will be able to say that the Government will reflect on the best ways in which the spirit of what he is trying to achieve can be delivered.

I was very grateful to the noble Lord for being courteous enough to circulate to all those interested in the Bill, in advance of this debate, the research by Murray and Farrington of Cambridge University on offending rates among children who are separated from a parent as a result of that parent’s incarceration. The figures certainly show that more research is needed to see what we can understand and draw from the results, which, so far, are not in any way conclusive. However, it is clear that programmes such as Storybook Dads—a service that allows prisoners to record bedtime stories on tapes to send to their children—simply would not have been possible without having been established by dedicated local initiatives. We come back to the importance of local initiatives, as opposed to nationally driven ones, and the fact that sometimes they provide the best way of assisting children. I do not propose to go into more detail on them—we are all aware of the great variety of local initiatives that can assist children—but it is important that between now and Report we reflect on the best ways of ensuring the welfare of children who are not in the prison estate themselves but are either separated from their parents or seeing the impact of crime on the family.

Reference has been made to the proposals of the noble and learned Lord, Lord Woolf, on cluster prisons. We have all spoken at some time or another about the benefits that might accrue from such a system but I am not sure how the Government would deliver it. The reality is that prison estates are bursting at the seams—I understand that they are now either full or about to be full—but it is one solution that is very much worth bearing in mind.

It is clear that, as noble Lords have said, for families trying to visit a parent or parents in prison—some children have both parents serving custodial sentences—life is not difficult in the sense in which the rest of us may find it difficult; it becomes almost impossible for them not only to carry on their own lives with any sense of normality but to avoid becoming part of the offending culture in the future. That is what I think the noble Lord, Lord Northbourne, is really trying to achieve by raising the debate—to make us aware that if we do not put the welfare of children right at the beginning of our consideration, we could end up with the children of current offenders simply being offenders themselves in the future. That does not do anybody any good.

I am grateful to the noble Lord, Lord Northbourne, for providing us with the opportunity to discuss these very important issues. I share his passion about this particular group of young people and, indeed, his passion for trying to ensure that fathers play a more active and reflective role in the lives of their children. Noble Lords will know that this issue was considered in Committee in the other place. James Brokenshire helpfully tabled an amendment relating to the Children Act, and my honourable friend the Parliamentary Under-Secretary of State, Vernon Coaker, agreed to bring forward a government amendment in due course. Amendment No. 132, which we will discuss shortly, fulfils his commitment.

Perhaps in parenthesis I may say to the noble and learned Baroness, Lady Butler-Sloss, how much I echo her experience regarding young children. I am very grateful that the right reverend Prelate, the Bishop of Chelmsford, added his wisdom in this area. I know how much he and those in the faith community—I talk not just about the Christian community but all the faith communities—do in this regard. It is a very important point. I hope that I can fulfil my noble friend Lord Judd's aspiration and give a lot of reassurance about what we are doing now.

Bearing in mind all the comments that have been made, it would be helpful if I gave a little background to the work we have been doing to tackle this issue. In particular, I hope to address the concerns expressed by the noble Lord, Lord Northbourne, on the amendment. I say to the noble Baroness, Lady Anelay, that we very much take on board the role that poor relationships could play. As part of healing it is very important not just for the offender to move on but for the child to move on.

The Government collectively committed to tackling the seven pathways to reducing reoffending when we published the National Reducing Re-offending Delivery Plan in November 2005. The children and families pathway of that plan is dedicated to dealing with the very issues on which noble Lords have spoken so eloquently today—I include all noble Lords in that.

We do not underestimate the challenges involved. Our up-to-date estimate is that each year 160,000 children in England and Wales may be affected by the imprisonment of a parent, leading to behavioural problems, poor performance at school and mental health problems. So factors such as separation from a parent, the mental health of a child’s mother, family conflict and loss of income can all affect outcomes for children; and families of offenders are likely to have these problems and more.

I do not shirk from the enormity of the problem. As the noble Lord, Lord Northbourne, made clear, boys are three times more likely to be at risk of being convicted of a crime if their father has a criminal conviction. We take that very seriously, as I am sure that the noble Baroness, Lady Anelay, does. That is why the children and families pathway is dedicated to improving support for the children and families of offenders. It aims to ensure that the interests of these children are addressed in implementing Every Child Matters, which is the Government’s strategy for ensuring the well-being of children and young people from birth to the age of 19. Aims for the children and families pathway include improving parenting and relationships skills; developing better materials, advice and guidance; and a more family-friendly focus in prisons and through visitor centres—all of which we have touched on this afternoon.

Considerable progress has been made, often in partnership with the voluntary sector, as several noble Lords have said, including the establishment of pathway boards, which are now in all the regions. Progress is overseen by the National Reducing Re-offending Programme Board, reporting to the Inter-Ministerial Group on Reducing Re-offending, which I set up last summer. I did that because I absolutely understood that we had to have a conjoined effort to make a difference in reducing reoffending and that it was only by so doing that we would be able to move forward.

I can reassure the Committee that, during the whole of this period, I have had a number of discussions with my honourable friend Phil Hope, my noble friend Lord Adonis and my right honourable friend Beverley Hughes about how we make the issue more potent.

We want to reduce the risk of reoffending, improve the life chances of those children and reduce the risk of inter-generational offending. To support those aims, the National Offender Management Service and the Department for Education and Skills are undertaking a joint review to consider how to support the children of prisoners to achieve better outcomes. I respectfully say that outcomes are what we should focus on. We are consulting widely and the project will report to Ministers shortly. We will be anxious to look at its conclusions.

The outcomes of that project will build on the considerable work happening already at regional and local level. I commend all those who, like the noble Lord, Lord Ramsbotham, have commended Safe Ground and the other initiatives. I must tell the Committee that a lot is going on. In the West Midlands, a £2 million pathfinder has been established under the “invest to save” budget to provide practical support for children and families, including family learning and parenting skills, and to raise awareness by mainstream services of the needs of that group.

The Eastern Region Families Partnership provides family support in prisons through visits centres, enabling children to have meaningful contact through child-friendly visits, parenting courses, and linking-up with local schools.

In the north-west, Partners of Prisoners has Family Link workers involved in Dad’s Days, enabling children to visit fathers in a relaxed atmosphere. The team has just received a Community Care Award. They are doing really well. It is really exciting stuff.

Sixty-six prisons participated in the recent Action for Prisoners’ Families Family Friendly challenge – benefiting more than 1,200 children with quality time spent with their fathers.

HMP/YOI Parc, run by G4S, has launched the Parc Supporting Families initiative, which includes key community services such as Home-Start and Community First, and representatives from prisoners’ families.  It is taking forward an exciting programme of work, including upgrading the visits area and the visiting experience to make Parc more child and family-friendly, with monthly family visits.   Other work includes a partnership with a voluntary sector organisation, PACT, to establish a family development worker and with Barnardo’s to pilot parenting work with prisoners, which is mirrored by support in the community for their partners.  Parc prison has also developed bespoke material for children to help them understand the experience of their parent in prison, and is actively promoting family and e-learning opportunities for children and families during visits.  

So I share that passion. Although we recognise that there is much more to do, I hope it is clear to the Committee that we are fully committed to ensuring the welfare of the children of offenders.

I am very happy to reassure the noble Lord, Lord Northbourne, that his amendment is wholly unnecessary. Governors of prisons and secure training centres, and directors of private prisons and secure training centres, are already under a duty to safeguard and promote the welfare of children by virtue of Part 2 of the Children Act 2004. Local probation boards are also covered by those provisions, and as I have said, these duties need to be updated to reflect the new arrangements proposed in this Bill, and it is this that government Amendment No. 132 will address.

I hope that I have given the noble Lord, Lord Hylton, a more satisfactory answer than perhaps he thought he received in relation to issues with children. We are moving forward. I have a very detailed answer for the noble Earl, Lord Listowel, which I shall outline in brief. We acknowledge that this has been a problem, but many things are in place. To save time I shall write to the noble Earl about those, but I can certainly reassure him that this issue has not dropped off the radar. We are focusing on it and things are getting better. The position is not quite as wonderful as any of us would like, but it is a lot better than it used to be and the improvements are considerable.

With that, I hope that the noble Lord, Lord Northbourne, will be happy to withdraw his amendment.

I am always happy to withdraw an amendment when the noble Baroness smiles at me. I am enormously impressed with what is being done. I know of the noble Baroness’s own commitment, and that of Phil Hope and the noble Lord, Lord Adonis. They are committed in this area, but that does not necessarily mean that every prison officer is committed. My argument is that we have to change the culture of the Prison Service and the Probation Service, and I still think that there may be a case for a differently drafted amendment to achieve that.

In the context of what my noble friend Lord Ramsbotham said about Family Man, I am sorry that the noble Lord, Lord Lucas, who was here earlier, has not stayed to tell us about it—I think probably due to excessive modesty because it is run by his wife. Finally, I refer again to the point made by my noble friend Lord Listowel about the value of the telephone. There is very strong evidence to show that for a child, a regular weekly telephone call from his father, whether he is in prison or in Australia, will make a huge difference to the child’s confidence that his father still loves him and cares about him. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Application of polygraph condition]:

On Question, Whether Clause 24 shall stand part of the Bill?

I shall also speak to Clauses 25 and 26, which raise the same point. My purpose in opposing Clause 24 is to discover why the Government have decided to introduce the polygraph into the machinery of justice in England, so far as I know for the very first time, and to inquire what researches they have carried out into the inferences which can properly be drawn from the readings on the polygraph.

The literature on the subject is quite large. The polygraph—or lie detector, to use its more homely name—is not new, nor to my mind is it very English. It has been in use in the United States for a long time, mostly by the CIA in vetting candidates for employment. But even in the USA the polygraph is regarded as controversial, not just because it is highly intrusive on personal privacy, which may matter less in the case of an offender on licence, but because there is no scientific way of establishing the accuracy of the polygraph as an indicator of the truth. In quite a large percentage of cases it will fail to show up those who are lying, resulting in the so-called “false negative”, while in another large percentage it will show up people as lying who are not in fact doing so, resulting in the so-called “false positive”. As a result, in America the CIA will not use the polygraph as a ground for refusing employment unless the result of the polygraph is confirmed or corroborated by other evidence.

In England, the polygraph was first considered for the purposes of security vetting as long ago as 1961. The Radcliffe committee made a hesitant recommendation, as the result of which two members of the security services went to the United States to find out how the polygraph worked, but nothing came of it. It was considered again by the Security Commission in the case of Prime in 1983. Geoffrey Prime was employed by GCHQ from 1968 to 1976. He was convicted of selling secrets to the Russians. In the course of his evidence, he said that he would have hesitated to apply for employment by GCHQ if he had known that he would have to undergo a polygraph test. So in that case we recommended that a pilot study should be carried out, but again nothing came of it, perhaps because of the difficulties which we pointed out in establishing a polygraph system in this country.

Perhaps I may quote from the recommendations made by the Security Commission. At paragraph 9.14 of the May 1983 Security Commission report we said that:

“The lessons to be learnt from the American experience give a fair indication of the principal considerations which require to be taken into account in deciding whether it is appropriate, and if so, whether it is practicable to introduce the polygraph into personnel screening procedures applied at some levels in the British intelligence and security agencies”.

There follows this important sentence:

“We recognise the enormous difficulties to be overcome in setting up an organisation to operate a discipline which is hitherto quite unknown in this country”.

In the light of that recommendation, as I say, that particular experiment went no further.

Why have the Government now changed their mind? I have a series of questions along these lines. Has the Home Office taken on board, to use the words of the Security Commission report, the “enormous difficulties” involved in introducing the polygraph system into this country? How do the Government propose to meet those difficulties? How many polygraph operators will be involved? Where will they be trained? Who will be responsible for their training? In America the training takes three to four months for each operator. Has any estimate at all been made of the cost of training polygraph operators? Does the Minister accept that the questioning must be strictly limited to the specific question of whether the offender has complied with the other conditions of his licence? It cannot be used to explore more widely the life of the offender in question.

I am sure that the Minister will be able to give satisfactory answers to some, if not all, of those questions, but if not I am tempted to say that this is yet another paper exercise, in which the Home Office seems to specialise. Once the sums have been done and the costs calculated, it will be realised that they are simply not worth the very limited benefit that might follow. On those grounds, I wish to oppose the Question that Clause 24 should stand part of the Bill.

We share many of the hesitations that the noble and learned Lord, Lord Lloyd of Berwick, has expressed. We are minded not to oppose the inclusion of these clauses in the Bill subject to very clear justification from the Government and an assurance that they have thought through the many questions raised by the noble and learned Lord. As the Minister in the other place said at Committee stage, this area raises many difficult issues. This must be seen as a pilot study with very limited significance, justified only because of the intense sensitivity of that small but dangerous group of adult sexual offenders who are not related to the children whom they abuse. I hope the Government intend to proceed very cautiously in this area and that the acceptance of this pilot study does not lay down any preconditions for its use in any other circumstances.

I should like to make it clear that we are not opposing the introduction of the clause. I want to concentrate more on the points made in another place, bearing in mind—this might come as no surprise to your Lordships—that only one hour was allocated there for discussion of this clause.

My honourable friend the Member for Hornchurch, James Brokenshire, raised a number of issues that are still in need of attention. The Minister, Mr Sutcliffe, noted that failure to comply with a mandatory polygraph testing pilot could result in offenders being recalled to prison. Given that polygraph tests are to be part of a licensing condition, can the Minister assure noble Lords that there would be a guarantee of the proper punishment in the form of reincarnation—I am sorry, re-incarceration—of offenders who breach this condition?

Further to this point, the Minister accepted that a failure to establish a proper address would critically undermine the condition that offenders on a polygraph condition must report regularly to a police station. Mr James Brokenshire welcomed the amendments allowing local government representatives access to offender data, but I was disappointed that the Minister did not address this issue head-on and did not go further to reassure colleagues in the other place that plans are in place to improve multi-agency public protection arrangements and rectify the disturbing failures in confirming and identifying the location of offenders. I hope the Minister will be able to provide some reassurance on these precise matters today.

I apologise for seeking to rise a little too hastily to my feet. I thank the noble Viscount for his comments.

I think a number of Members of the Committee were quite enchanted by it. My noble friend says it is not an imprisonable offence, so the noble Viscount may feel assured by that.

The noble Lord, Lord Wallace, is right about the restrictive way in which the measure is to be used. I hope I shall be able to reassure the noble and learned Lord, Lord Lloyd, that the proposed use is safe and satisfactory. It will enable us to test and, basically, taste and see. Protecting the public from the problem of sexual abuse is a matter that the Government have taken very seriously and given the highest priority. In fact, it has been given the highest priority by all of us engaged on this issue, irrespective of political party or the side of the House on which we sit.

With the introduction of the multi-agency public protection arrangements, we have ensured that agencies work together to supervise offenders in the community, with greater resources directed towards those assessed as presenting a high risk of serious harm to the public. Although I hear what the noble Viscount says about some of the failings, he will recognise that there have been enormous improvements because we have been able to implement these macro-arrangements, which were not available before 1997 but are so now. I think that none of us would wish to remove them.

We recognise that we have a responsibility, therefore, to continue to refine and develop the ways in which we manage sex offenders, particularly as new technologies become available. On 19 June last year, the Home Secretary commissioned a review of the management of child sex offenders, which is due to be published shortly. Among the range of measures aimed at protecting children from sexual abuse, it will recommend a trial of mandatory polygraph testing for sex offenders on licence in the community.

As the noble and learned Lord knows, the polygraph is a device which measures changes in breathing, heart activity and sweating, all of which are known to be related to deception. We will use the polygraph to monitor whether offenders are engaging in risky behaviour or in behaviour which puts them in breach of their licence conditions.

Between September 2003 and September 2005 the National Probation Service conducted a pilot study in which sex offenders on licence volunteered to undertake the polygraph test. The results of the pilot were published in December 2006. Nearly 350 sex offenders took part in the pilot as part of their supervision and treatment process. Examiners reported that new disclosures relevant to treatment and supervision were made in 79 per cent of first examinations and 78 per cent of re-tests, and nearly 30 per cent of these disclosures took place in the post-interview that followed the offender’s questioning while attached to the polygraph; in other words, after being challenged with the result of the test.

Probation staff overwhelmingly found the polygraph results helpful in their risk assessment of these offenders. I emphasise that it is a risk assessment. The polygraph is a diagnostic tool among others that enables those tasked with managing the risk to better assess that management. But there is an issue—almost like a fly in the ointment—because, given that a self-selecting sample was involved in the pilot and there was no randomised control group for comparison purposes, it is not possible to attribute with any certainty the new disclosures to the effect of the polygraph test. On average, only 43 per cent of those eligible volunteered for testing, and we need to be concerned about what was going on with those who did not volunteer.

We have listened to the helpful debates in the House of Commons and we believe that, if polygraph testing is to be introduced, we should do so cautiously, learning from the small-scale implementation. This will give us an opportunity to assess any problems of process as well as being clearer on the expected benefits. These clauses therefore introduce mandatory polygraph testing for the categories of offenders defined in the Bill who are subject to licensed release from prison having been sentenced to at least 12 months’ imprisonment. It will be piloted initially in three probation regions.

We will commission a research study to run alongside the mandatory testing pilot, with a view to determining whether the polygraph test is efficacious in assisting the collection of useful evidence about offenders’ behaviour and whether it genuinely facilitates effective offender management without disproportionality affecting the rights of those tested. We think it is a sensible way forward.

I say to the noble and learned Lord that the Secretary of State will have the power to issue clear procedural guidance or rules on this. We understand everything he says about safeguards, probity, the process and all the issues that will have to be grappled with. We must look at Article 8 of the European convention, consider each case individually and ensure that we are sound on those issues too.

As I explained, polygraph tests will be required as a condition of prisoners’ licences on release from prison, so we will do that in an appropriate way. We want to establish whether information from the polygraph will provide offender managers with an additional risk management tool that is useful in its own right. We do not intend to use polygraph evidence in criminal proceedings against an individual who has taken a test. It is a diagnostic management tool that we hope will assist practitioners to come to better assessments of the risk these offenders pose, particularly if they are in the community. Only if it can be shown that polygraph testing is a useful and objective additional tool in assessing and managing the risk posed by sex offenders will we return to this House to seek an affirmative resolution to extend the mandatory testing to all probation areas. We anticipate that a study of this magnitude will take at least three years to complete, for all the reasons I have given.

Given those safeguards, and bearing in mind the potential benefits of polygraph testing in protecting the public against the dangers of sexual abuse, I propose that Clauses 24 to 26 stand part of the Bill. I will pray in aid what I have just said when moving our amendment. I do not propose, unless asked by noble Lords to do so, to say much more. I invite the noble and learned Lord to withdraw his opposition to the Question that the clause stand part.

I was not aware that a pilot study had already taken place, nor that it is proposed that three further pilot studies should be conducted before this becomes general. The Minister has done a great deal to remove my hesitation and doubt about the whole matter, and in those circumstances I will not pursue my opposition to the clauses.

Clause 24 agreed to.

Clause 25 [Effect of polygraph condition]:

[Amendment No. 113 had been withdrawn from the Marshalled List.]

114: Clause 25, page 19, line 18, at end insert—

“(8) The power to make rules under subsection (6) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”

The noble Baroness said: I beg to move our amendment to introduce a trial of mandatory polygraph testing on the basis that I have already outlined.

I do not propose to go into the rights or wrongs of having the trial; we satisfactorily debated that on clause stand part. As I understand it, however, the Minister’s amendment is not in fact to have the power to run the pilot, but relates to how the Government may exercise that power. The amendment says that the rules under subsection (6) will be exercisable by statutory instrument.

Amendment No. 113 has been withdrawn. That was my amendment, which was to ask the Government to do precisely what they are doing in Amendment No. 114. I withdrew it simply because at a later date the Government came forward with their own concession on the issue—not a concession to me, of course, but to the Delegated Powers and Regulatory Reform Committee. In its seventh report, the committee made the point that Clause 25, the basis for all this, is very similar to Clause 48—long in the memory of those of us who were around then—of the Management of Offenders and Sentencing Bill, which the Government introduced way back in the Session of 2004-05. That Bill did not reach the statute book due to the dissolution of Parliament.

Under that Bill, the equivalent rules were to be made by statutory instrument, subject to the negative resolution procedure. In the memorandum the Government produced for the committee, they expressed the view that negative resolution was thought to provide an appropriate level of scrutiny. We are fine with that. But this time the Government have introduced a similar power without having any parliamentary scrutiny by statutory instrument. They appear to have revised their view of the appropriate procedure, from what the Minister says, and follow the recommendation of the Delegated Powers and Regulatory Reform Committee that the rules be made by statutory instrument subject to the negative procedure. I am glad to see the Government doing what the committee requested, and we support them in so doing. On other occasions we will disagree with the Government over whether they have adequately observed the committee’s report, but on this occasion they appear to have done so.

The reason I did not go through the details was that I rather assumed, perhaps presumptuously, that everyone was welcoming the fact that we have agreed with the Delegated Powers and Regulatory Reform Committee over the negative resolution, but I thank the noble Baroness for reading that into the record. I also thank her for acknowledging that we have once again listened with real care to the committee and have done what it so wisely advised. I thank the committee, too, for its advice.

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clauses 26 to 29 agreed to.

Clause 30 [Accommodation in which period of detention and training to be served]:

115: Clause 30, page 20, line 39, leave out from “for” to “, and” and insert ““secure accommodation” there is substituted “youth detention accommodation of an appropriate secure nature given the individual’s circumstances””

The noble Baroness said: In moving this amendment I shall also speak to Amendments Nos. 117, 119, 122 and 123. I tabled the amendments in response to a briefing I received from the Judicial Policy and Practice Committee of the Magistrates’ Association, which I thank for its information.

Detention and training orders are in two parts, the first in custody and the second under supervision in the community. At present the young person or trainee must be placed, during the custodial part, in one of the types of secure accommodation listed in Section 107 of the Powers of Criminal Courts (Sentencing) Act 2000. Clause 30 seeks to amend that Act by substituting “youth detention” accommodation for “secure” accommodation. That is to give the Home Secretary powers to provide accommodation that is both open and run by or on behalf of a local authority, with the possibility of placing a young person in an open children’s home as well as in a secure children’s home.

The Magistrates’ Association considers that those powers may be too wide for two reasons. First, the making of a detention and training order placing the young person in custody is only carried out as the last resort, and the proposal to make that accommodation open in any way goes against this principle. Secondly, says the association, this power will allow the young person ordered into custody to be placed in a children’s home—private or local authority—where other young people, possibly without a criminal record, are already being housed. The association says that while it is responsive to the requirements to provide a type of accommodation that fulfils the needs of extremely vulnerable children, it considers that the wording of the Bill could lead to the criminalisation of other young people. Accordingly, it recommends that the clause be amended so that young people are placed in youth detention accommodation of an appropriate secure nature, given the individual’s circumstance.

It is on that basis that I sought the assistance of the Public Bill Office on how best to table an amendment to reflect the concerns put forward by the Magistrates’ Association, and I invite the Minister to address those concerns. I beg to move.

Clause 30 is designed to remove the requirement that children given a DTO by the court—which means that the child is a persistent offender, and if they were older they would be looking at a custodial sentence—should serve that sentence in a secure setting such as an STC or a YOI. Instead, they could be placed in some other form of “youth detention accommodation”. That could be an open local authority residential home or some other accommodation as specified by order. The amendments in the name of the noble Baroness, Lady Anelay, seek to modify the requirements specified in the Bill for accommodation,

“of an appropriate secure nature given the individual’s circumstances”.

That is, of course, the ideal.

The Government are moving towards a position which appears to acknowledge that the use of STCs or YOIs need not necessarily be appropriate and to that extent we welcome their thinking. However, this begs a lot of questions. “Youth detention accommodation” is so vague and imprecise as to be almost meaningless and requires a great deal more explanation and detail. For example, there is no indication of the extent to which a child’s best interests are to be considered at the outset or whether a full assessment of need or risk is to be taken first—both absolutely essential for an appropriate placement. Will there be a clear statement in law that the purpose of sentencing is to improve the well-being of the child and to prepare him for later life? What sort of number are the Government anticipating and therefore what number of alternative settings and places is to be made available? Above all, what will the non-secure detention accommodation be? What will it offer? What kind of specialist provision will be available? And behind all this is the question, “Is it a cost-cutting exercise?”. To do things properly, all that will have to be spelled out.

One of the anxieties expressed by several organisations, including the Magistrates’ Association, is whether children who have been involved in criminal or offending behaviour could be placed in residential children’s homes—open or secure—with children whose needs are quite different, though just as great, but who might be significantly and adversely affected by being with such children. What the Government are proposing, however, is potentially very important. I for one have argued long and hard against the incarceration of children, particularly very young children, in STCs—the child prisons which are a unique feature of this Government and widely condemned elsewhere in Europe. Four hundred miles up the road from here, in Scotland, they do not exist and there are no plans to emulate them.

The appetite for incarcerating children is growing. The number of under-18s in custody is almost 60 per cent higher than it was in the 1990s, the number of children in YOIs assessed as “vulnerable” rose from 432 in 2001-02 to 3,337 in 2003-04, and the levels of self-harm in STCs rose by 803 per cent between 2001 and 2004. Most ghastly of all, three children have actually died in STCs, one at the hands of staff while being restrained using a practice called a double-seated embrace, which has now been forbidden pending a better understanding of the physiology of children and what restraints can be more appropriately used. If ever there was a need to change our treatment of these extremely difficult children, it is now, but is what the Government are offering a real opportunity—a real shift in thinking and practice?

To provide more appropriately for these extremely vulnerable, disturbed, difficult and dysfunctional children we need to have a range of appropriate alternatives and I am not aware of any such plans. We need to reverse the recent trend for closing secure and semi-secure local authority children's homes, some of which have been deemed to be too small or performing inadequately. With government help, and with the diversion perhaps of funds from children’s prisons, change and improvement would be perfectly possible. If greater powers and responsibilities were given to local authorities—as in Scotland—rather than to the YJB, which commissions all these prison places, and if there were a duty of care through the Every Child Matters agenda and the children's trusts, then appropriate local provision could be put in place. As it is, a third of children in YOIs are identified as “vulnerable” and their needs dictate that local authority provision is more appropriate.

We need far more secure or semi-secure children's homes, ideally ones where there can be a progression from secure to open conditions as the child progresses; more specialised provision such as therapeutic communities for very vulnerable children at risk of suicide—we were discussing one such case at Question Time today and there have been 29 deaths since the 1990s—residential special schools for those with additional learning difficulties, and there are many such children in our prisons; mental health settings; and above all places where children can be near home instead of 50 miles or more away. This last suggestion mirrors the recommendations of the Corston report on women in prisons and, while it is not relevant to this amendment, the needs are in many ways similar.

If the Government were committed to providing a fraction of this, it would be the best possible legacy they could leave this country. But to do so in a token fashion, or without adequate care and planning—for example, the inappropriate placing together of children—would be a tragedy. Can the Minister therefore give the House a clearer idea of what the Government mean by “youth detention accommodation”; and say what alternative provision they will make and when, and what sort of resources they are prepared to allocate to such important provision?

I understand the concern that a custodial sentence should be distinguishable from other types of sentence, and that it should be used only for young people who need to be removed from the community. I understand what the noble Baroness, Lady Anelay, says and the approach of the noble Baroness, Lady Linklater, on that. The Government’s position is, I hope, clear: for young people under 18, custody should be used only in the last resort, but for a very small minority of offenders in that age group the possibility of a custodial sentence should continue to be available. I know what she is saying about numbers but she will appreciate that, regrettably, a cadre of young people have now committed some extraordinarily dangerous offences and we have to respond to those offences robustly and appropriately—we have no choice.

Custody is necessary, therefore, to protect the public from those offenders, and there is clearly no point in a custodial sentence that does not do that. The Magistrates’ Association believes quite rightly that it is for the court to decide whether an offender needs to go into custody. If the court decides that he or she should do so, it is not for the Government or the Youth Justice Board to second-guess that decision. That is the position and it is one with which we and the Magistrates’ Association are in complete agreement.

However, two key points need to be taken into account. The first is that the essential purpose of a custodial sentence is to remove the offender from the community. The degree of security needed to prevent him or her from returning to the community prematurely is a secondary matter which the Government have customarily been responsible for deciding. In the case of adults, the Prison Service previously decided and now the National Offender Management Service decides whether an offender should be placed in a closed or open prison, and NOMS manages their transition from one to the other. In the case of under-18s sentenced to detention and training orders, the Youth Justice Board has a concurrent placement power and in practice all placements are decided by the board. Most of those sentenced to a DTO are placed in secure conditions but they can be, and some are, placed in the open young offender institution at Thorn Cross near Warrington. Whether open or closed conditions are more appropriate is therefore already a question that has to be addressed, and the board has to decide which of the three quite different types of establishment—a young offender institution, a secure training centre, or the secure children’s homes referred to by the noble Baroness, Lady Linklater—a detainee should be placed in.

There is concern that accommodation primarily intended for children who are not offenders is to be added to the list of youth detention accommodation. But secure children’s homes fit that description and they have been accommodating offenders for a number of years, so the proposed change is not breaking new ground, either in allowing the YJB to place detainees in open conditions or in allowing it to place them in establishments that are primarily for non-offenders. It should also be remembered that it is quite common for a young person in the care of a local authority to serve the community part of a DTO in a local authority home, where he or she will be living with other young people who have not offended.

What we are proposing is not a radical departure but, I humbly suggest, a minor modification of the existing arrangements. Nevertheless, we appreciate that the decision to place a young person outside the existing secure estate is important. Where that might be done immediately from court, sentencers will wish to be involved. We will therefore issue guidance to ensure that the court is aware of any such cases and has the opportunity to give a view. Clearly, any view expressed by the court in such cases would be a key factor in the eventual placement decision. I am very grateful for the indication of the noble Baroness, Lady Linklater. She is saying that this may be case-specific and appropriate for us to do in relation to a child who may need to be dealt with robustly but may not need to be incarcerated for various specific reasons. We have a handful of these cases, which we are dealing with already. I hope that on that basis, the noble Baronesses, Lady Anelay and Lady Linklater, will feel content.

Will the Minister acknowledge the key difference between secure children’s home accommodation, which is absolutely secure and where in places such as Scotland and elsewhere in Europe the children who commit the most serious crimes are placed, and penal custody of young children? There is a very important philosophical difference that separates us. We believe that for children—those aged 17 and under—we should be going for secure conditions, which are often absolutely necessary and appropriate.

As I have tried to make clear, we do not see this as a major departure. The secure provision is used now; it should be used for those for whom it is appropriate. But there are other cases. For example, a child who has been sentenced may be profoundly deaf, have difficulties with speech, and may be dumb also. Bearing in mind the level of risk that the child may present, the court may have come to the conclusion that incarceration is the only consequence, but has to think about where to hold the child. We have to acknowledge that it is the court which says whether someone should be sentenced to a term of what is in effect imprisonment. Once the court has made that decision, it is then for us, who are responsible for managing that, to seek to hold the child in the most appropriate setting which honours the court’s decision and manages the risk that the child poses, but also maximises our opportunity to do with and for the child that which we need to do to make rehabilitation and recovery more likely. In making that assessment, a number of different settings may be appropriate for a particular child, and that is what we are seeking to do.

I am grateful to the noble Baroness, Lady Linklater, for her, as ever, thoughtful contribution. Her experience, and the work she did before she came to this House and has done subsequently on child welfare and offender management in the broadest terms, is extensive. She and I will continue to disagree on one issue on which I find myself close to the Minister. There are occasions, we believe, when the only recourse may be for a child or young person to be held in custody. We shall continue to explore these issues as time goes on.

I am grateful to the Minister for the way in which she responded to this matter. The Government believe that they are not going in a completely new direction. They say that it is not a radical departure but a minor modification of an existing provision, and that secure children’s homes already perform the function bestowed on them in the Bill. The Magistrates’ Association is keen to explore just how the change will be effected and what the impact will be on secure children’s homes from the viewpoint of those who will come into contact for the first time with children who are very disturbed and have a criminal background.

It is important for the Minister to put the matter into context regarding the independence of the court in coming to a decision on sentencing. Guidance should point out that the court has a role to play in making recommendations about where a child or young person should then be placed. I understand exactly why the Minister does not wish to say that the court should make that decision. That is not the way in which things are done, nor should it be. I will make sure that her response is put before the Magistrates’ Association to see whether it is fully satisfied. From my own point of view, the Minister has gone as far as she reasonably could today in trying to address its concerns. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

116: Clause 30, page 21, line 1, leave out paragraph (b)

The noble Baroness said: The amendments in this group remove from the Bill two provisions consequential to Section 61 of the Criminal Justice and Court Services Act 2000. The section, which has yet to be commenced, abolishes the young adult sentence of detention in a young offender institution. I will explain briefly the purposes of subsection (5) and the other parts of Clause 30 we are proposing to remove as well as the purpose of Clause 31, and then say why we propose to remove them.

When DYOI is abolished, young offender institutions may cease to be provided for young people over 18. If they were no longer provided, it would no longer be possible to transfer young people sentenced to a detention and training order to a young offender institution when they reached the age of 18. If that were indeed the outcome, it would be necessary to have a power to place them in prison, where contemporaries of theirs, who were 18 at the time of conviction, would be sent under existing legislation. Clause 30(5) would make it possible to place 18 year-old DTO detainees in that way.

Although this is a purely consequential change, it has been the focus of some concern. Clearly, moving a young person who may be vulnerable into an adult establishment would be a serious step. The Government fully recognise that and have given assurances that proper safeguards would be put in place to ensure that transfer to prison would take place only in appropriate cases, with due consideration to the requirements of the European Convention on Human Rights and to meeting the needs of vulnerable individuals. Nevertheless, concern persists, and it has been suggested that the Government were wrong to seek to make this change at this time.

While I understand—and share—concern about the need to safeguard vulnerable young people, I am not sure how it could be wrong for the Government to seek to make their proposed legislation consistent with legislation that Parliament has already approved. But I accept that we will need to have a general discussion of custodial provision for young adults once the package of measures I announced in my Written Statement on 8 May has been evaluated. It will in any case be necessary to make some further legislative change before detention in a young offender institution can be abolished. Therefore, in a spirit of goodwill and comity, the Government have accepted that the change that we proposed to make through subsection (5) and the related parts of Clause 30 can be considered at a later date. The purpose of Clause 31 is similarly to reflect the change made by the Criminal Justice and Court Services Act 2000 to the minimum age of imprisonment. Clause 31 alters the age at which certain sentences of detention, to which offenders under the age of 21 may be liable, can be converted into sentences of imprisonment. As with the changes proposed in Clause 30, we accept that this change can be considered at a later date. I hope that I have given considerable pleasure on this occasion to the noble Baroness, Lady Linklater. I beg to move

In my note on the Marshalled List, I wrote, “Listen and heartily welcome”.

On Question, amendment agreed to.

[Amendment No. 117 not moved.]

118: Clause 30, page 21, line 7, leave out paragraph (b)

On Question, amendment agreed to.

[Amendment No. 119 not moved.]

120: Clause 30, page 21, line 13, leave out paragraph (b)

121: Clause 30, page 21, line 16, leave out subsection (5)

On Question, amendments agreed to.

[Amendments Nos. 122 and 123 not moved.]

Clause 30, as amended, agreed to.

124: After Clause 30, insert the following new Clause—

“Young offenders not to be detained in prisons

(1) In section 27(1) of the Criminal Justice Act 1948 (c. 58) (remand of persons aged 17 to 20) omit the words—

(a) “, if the court has been notified by the Secretary of State that a remand centre is available for the reception from the court of persons of his class or description,”, and(b) “and, if it has not been so notified, it shall commit him to a prison.”(2) In section 43(2) of the Prisons Act 1952 (c. 52) (remand centres, detention centres and youth custody centres) paragraph (c). is omitted

(3) For section 106 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) there is substituted—

“106 Interaction with sentences of detention in a young offender institution

(1) Where a court passes a sentence of detention in a young offender institution in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—

(a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102 above.(2) Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention in a young offender institution, the order shall take effect as follows—

(a) if the offender has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.(3) Subsection (1)(a) above has effect subject to section 105(3)(a) above and subsection (2)(a) above has effect subject to section 116(6)(b) below.

(4) Subject to subsection (5) below, where at any time an offender is subject concurrently—

(a) to a detention and training order, and(b) to a sentence of detention in a young offender institution,he shall be treated for the purposes of sections 102 to 105 above and of section 98 above (place of detention), Chapter IV of this Part (return to detention) and Part II of the Criminal Justice Act 1991 (early release) as if he were subject only to the one of them that was imposed on the later occasion.(5) Nothing in subsection (4) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them.

(6) Where, by virtue of any enactment giving a court power to deal with a person in a way in which a court on a previous occasion could have dealt with him, a detention and training order for any term is made in the case of a person who has attained the age of 18, the person shall be treated as if he had been sentenced to detention in a young offender institution for the same term.”

(4) Section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of detention in a young offender institution, custody for life, etc.) is repealed.”

The noble Baroness said: The amendment is in my name and that of the noble Lord, Lord Judd. The Minister will no doubt be aware and relieved to know that it is a probing amendment which enables us at least to consider how possible it will be always to keep young people out of adult prison.

At the end of March 2007, there were 9,311 young adults in prisons in England and Wales, two-thirds of whom had been sentenced to less than 12 months. We are using prison for many people whose offences cannot be seen as being among the most serious. They are a very disadvantaged group of young people.

In a thematic report on this group in 1997, the then Chief Inspector of Prisons, Sir David Ramsbotham, now the noble Lord, Lord Ramsbotham, said:

“In my view it would be wrong to ignore the particular needs of those aged 18 to 21 by regarding them as adult prisoners. For many the process of maturation will still be taking place beyond the age of 18 and they still require help and direction to become adults. The inability to withstand peer pressure is a particular feature of this age group … Others will be vulnerable and, if mixed with adults, might well be preyed upon”.

Most of those who are involved in this field would agree strongly with that view. Young people under the age of 21 should not be held in adult prisons with adult prisoners, yet we know that, with prison overcrowding, they are often placed there.

An article in the Guardian of 30 April stated that, from that date, the private security staff who operate the prison vans would be asked to make the initial decision on whether young adults who were awaiting trial in London—that is, who had not been convicted—were mentally strong enough to be held in an adult prison, or whether they were too much of a suicide risk and should instead be sent to Feltham Young Offender Institution. The article said that those who were sent to adult prisons, presumably those who were of strong-enough mind and not too much of a suicide risk, were to be held on designated landings; that is, as separate as possible from adult prisoners. However, prison staff told the Guardian:

“We are not able to take care of them. Our operational capacity is being reduced slightly to allow a few more single cells but we have no facilities for them. Somebody will get badly hurt”.

Our purpose in moving the amendment is to elicit from the Minister a view on how far the Government support putting young adults in adult prisons. Do they see it increasing or as being deeply regrettable? Can they assure the Committee that they are working to ensure that it does not happen? I beg to move.

I must apologise for being temporarily absent when the noble Baroness introduced the amendment. There is very little to add to the case that she ably made, except to say that I sometimes feel that in these difficult areas where there is always a process of rationalisation about why the ultimate conclusion cannot be reached, the ultimate conclusion is not reached until one makes a firm law that it must not happen. If it must not happen, alternative arrangements have to be made.

The noble Baroness was right to probe the extent of a demonstrable commitment to achieving that objective. I hope that the Minister will be able to reassure us on this matter, because, as we said on a previous, not unrelated, amendment, this is not just a theoretical consideration. There have been too many instances of things going badly wrong. For that reason, we have reached a time when it should not happen. The Government have to find a way of saying that, so that the necessary alternative arrangements are in place.

My noble friend is right to move this probing amendment. Every day as I come to work here, I see the white Serco vans manoeuvring in and out of Horseferry magistrates’ court. However, I would like to probe in a slightly different direction the following matter, which seems on the face of it paradoxical. Local authority secure homes are closing down in many different areas, while secure training centres for young offenders are opening. Local authority secure homes will almost always be much smaller in capacity. Therefore, they are more likely to be near the families and friends of those confined within them. Are the secure training centres able to provide important training that is not available in local authority homes?

I, too, support this probing amendment. Quite a number of us in the Chamber do not think young offenders should be in prison—there should be separate and different facilities for them. Another point to be taken into account is the enormous percentage of crimes that have taken place as a result of the churn of young people coming out of prisons or other establishments and going straight back in. As my noble friend Lady Stern said, peer pressure may have something to do with that. But there is surely a counter to that which, during this period of total overcrowding of prisons, can hardly begin to get off the ground—we all know that whether we acknowledge it or not. With a degree of partnership between everyone involved in this whole sphere, much more attention could be paid to deterring the young from getting on that cycle of reoffending.

I know that everybody knows that point and supports it, but nothing like enough facilities go towards achieving it. It is obviously an area where the voluntary, statutory and employing sectors could all get involved to help provide the training, accommodation and positive support so that the maximum number do not go back on the churn.

I hope that rather more consideration will be given to this issue. I would be reassured to hear the Minister give us a more positive idea of how they are tackling this group so that these considerations do not have to be made at such an inappropriate moment. Young people should be treated separately and vulnerable young people up to the age of 21 are particularly in need of our help. As we all know—we have discussed it before—a huge proportion of them come from families where offending has been happening for generations. We used to call that the cycle of deprivation: I forget what it is currently called, but it amounts to the same thing. I hope that we will have a full account of what the Minister has in mind.

I support this probing amendment. It is interesting that, historically, 16 to 18 year-olds in youth custody have done much better in terms of investment, support and provision. The 18 to 21 year-olds have got the thin end of the wedge. From the attention that has been paid to the younger members of the prison estate, we know that about a third of 17 year-olds are recognised as being vulnerable. There is not much difference between a 17 and an 18 year-old. We can bet our bottom dollar that many of those young people—who may wish to put themselves across as tough men and would always deny that they could be categorised as children although they are barely young people—are in great need. We believe that it is entirely inappropriate for them to be incarcerated with adults.

I recognise and understand the concern expressed by the noble Baroness, Lady Stern, my noble friend Lord Judd, the noble Lord, Lord Hylton, and the noble Baroness, Lady Linklater, that young adults should be kept apart from older offenders and remandees. The amendment would to do that in two ways: by repealing the legislative provision that abolishes the young adult sentence of detention in a young offender institution and by preventing 17 to 20 year-olds being placed in prison on remand. I thank the noble Baroness, Lady Stern, for indicating that this is a probing amendment.

The Committee will be aware from my Written Statement on 8 May, in which I set out the actions that we are taking in relation to offenders aged 18 to 24 both in custody and in the community, that this is a group about which the Government are also concerned. I will not recite that Statement for the purposes of this reply, but that is why we made nine substantive proposals about how we could take things further. I hope that noble Lords found the Statement a helpful and positive indication of our direction of travel. In it, I said that taking account both of the constraints posed by current prison capacity and the need to undertake further work to test out an approach to young adult offenders, the time was not yet right to abolish detention in a young offender institution. The Government therefore agree with the noble Baroness, Lady Stern, and others that DYOI should be retained for the time being.

However, I know that the noble Baroness would wish to go further and repeal the legislation that abolishes DYOI entirely. That is her aspiration, hope and desire, but we do not believe that it would be right to do that—certainly not at this stage. In my Statement I explained the steps that we are taking to test the best approaches in relation to this age group; and it would not be advisable to repeal the legislation while that evaluative work is in progress.

The noble Baroness also wishes to remove the power to place in a prison 17 to 20 year-olds who have been remanded in custody. That view is shared by the noble Baroness, Lady Linklater. The law requires that, subject to an overriding power available to the Secretary of State, 17 to 20 year-olds who are remanded in custody must be placed in a remand centre, if one is available, or otherwise in a prison. In a strict legal sense, all remandees in this age group are held in prisons, because no establishments have been formally designated as remand centres. We need to hold that in our minds. However, while some of these young people are held in prisons, many are in young offender institutions, the accommodation in which they are placed having been formally designated as prison accommodation for the purpose of the law. Removing the power to place in a prison would therefore have far-reaching effects and would make the system unworkable. I know that that is not what anyone in the Committee wants.

I can assure the Committee that unless there were wholly exceptional circumstances relating to an individual case, we would not consider placing a 17 year-old outside the under-18 estate. Those aged over 18 form a different category, and while it may be desirable to keep 18 to 20 year-olds separate from older inmates, an absolute rule would remove an important element of flexibility in dealing with population pressures.

As I said earlier, we will have an opportunity to discuss issues about how we respond most effectively to this group of 18 to 24-year olds, but it is not now and it will not be on this Bill. We will have an opportunity for mature reflection in due course. Therefore, I invite the noble Baroness to withdraw her amendment

Before my noble friend sits down, she has been very helpful in her reply but will she just clarify something? She talks about removing flexibility in dealing with cases, but does that mean that the Government have a policy of wanting to retain that flexibility or is it that flexibility within the existing constraints of the prison estate is important because there is not enough alternative accommodation? Can we have a slightly firmer indication from my noble friend, who is being very helpful, of whether the Government’s intent is to ensure that this group does not end up in prison?

I should make two points. First, we have to face the reality in terms of flexibility and the importance of getting the right provision for the right individuals with the right level of safety. We have a very good opportunity to consider in a much more concrete, holistic way the sort of provision that we need for 18 to 24 year-olds. Members on all sides of the Committee have highlighted that the bracket we had previously, 18 to 21 years, was too narrow and that we needed to broaden it to ensure a better response, capable of meeting these needs. Our thrust is to reduce reoffending, enhance the opportunity for rehabilitation and therefore cut crime. It is impossible for me to go further than I have done, notwithstanding the temptation to do so posed by my noble friend’s seductive words. When he was a Minister he was probably far more resilient in resisting lures than I am.

I thank the noble Baroness for her response; however, I am slightly unenthusiastic about it. I should have liked her to say that the Government would like to see a situation in which there was never an under 21 year-old in Wandsworth prison. It is not the right place for them. But I understand the realities of life, especially at the moment, and I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Conversion of sentence of detention to sentence of imprisonment]:

No you are not. We are on Clause 31. You do not want it to stand part of the Bill. The Question is that Clause 31 stand part of the Bill. As many as are of that opinion will say Content; the contrary Not-Content.

125: Clause 32, page 22, line 27, at end insert—

“( ) After paragraph 1 there is inserted—

“1A In making arrangements for the functions under paragraph 1, the Secretary of State must ensure that young offenders’ safeguarding and welfare needs are addressed during transport.””

The noble Baroness said: The Opposition should not be doing the Government’s work for them. Something has gone wrong.

I thank the Chairman of Committees. He is acting properly on behalf of the Committee. He knows that what happened was not what the Committee intended. I am eternally grateful to him for his kindness to me on this occasion.

We all got there in the end. I tabled Amendment No. 125 in response to a very helpful briefing from the Standing Committee for Youth Justice. The Committee will be aware that members include organisations such as Barnardo’s, the Children’s Rights Alliance for England and the NSPCC among many others. I am grateful to the noble Lords, Lord Judd and Lord Ramsbotham, for adding their names to the amendment.

This matter was raised by my honourable friend Mr Edward Garnier in Committee in another place way back on 23 January, reported at col. 204 of Commons Hansard. I make no apology for bringing this matter back for debate tonight. When my honourable friend withdrew the amendment, he made it clear that we did not consider this merely a debating exercise. An important point about humanity lies at the core of our amendment, which we believe must be addressed.

Clause 32 sets out arrangements for juveniles to be escorted securely between any forms of youth detention accommodation. We hope that the debate on this clause will offer the opportunity to address the significant concerns that we have about the conditions and treatment of children during transportation from both court to custody and between establishments. The conditions in which the children are transported are often very poor. Young people report spending lengthy periods in what are only, after all, sweatboxes, without access to food and water or regular toilet breaks. The Standing Committee for Youth Justice points out that such treatment may be incompatible with the United Kingdom’s human rights obligations under Article 37 of the UNCRC, which states:

“Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”.

Following an inspection of Onley young offender institution last year, the report of the Chief Inspector of Prisons stated:

“It is deplorable to find, as we did, that some young people were not only reduced to urinating in the escort vehicle, but also had to clean it out on arrival”.

These conditions are exacerbated by the length of time that young people are often detained in them, as highlighted by Anne Owers, the Chief Inspector of Prisons, in a speech last year to the Judicial Studies Board:

“A major concern remains the length of time prisoners can spend in court cells, or on their journey to prison … the situation, particularly for women and young people, remains unacceptable. At Feltham last year, young people were still arriving as late as 11 pm, and being transported with adult men and women, after lengthy waits in court”.

Our amendment would require the Secretary of State to ensure that young offenders’ safeguarding and welfare needs are addressed during their transport. I hope that the Minister is able to accept the amendment. I beg to move.

I support the amendment. I too received the briefing of the Standing Committee for Youth Justice and therefore most of the information that we heard about from the noble Baroness, Lady Anelay. It makes shocking reading.

I do not know whether many Members of the Committee have seen what these sweatboxes look like, but just from seeing the vans from the outside it does not take much imagination to know that they are cramped and bleak. To face an admission to detention is bad enough. A vulnerable child will be at his or her most vulnerable at such a moment. Given that he or she is likely to have a multitude of problems and difficulties, as all the statistics tell us, these journeys, under such awful conditions, are almost impossible to imagine.

This can also be a time of great and additional difficulty for staff, who have to cope with children who may be angry, distressed or even suicidal. Both skill and understanding of what the children are going through will be required so that the famously difficult first night in custody does not result in even greater distress and trouble. To be locked in a cell is not an experience any of us would wish to go through, but to be forced to urinate in your sweatbox, or, having done so, to clean it out on arrival at Onley, is an example of worst, not best, practice. If being locked in a cell is an experience that none of us would ever wish to go through, still less should we find it acceptable that a child should be delivered to it at 11 pm from a sweatbox.

This subject deserves a lot more attention than we are likely to be able to give it at this stage of the Bill. It is a very important subject in its own right. I support the amendment. This matter has greatly concerned people for a long time. The independent monitoring board at Huntercombe young offender institution has raised with the Minister on a number of occasions the problem of the extremely late arrival of young people. In a Written Answer of 21 March the Minister told me that,

“two young people arrived at Huntercombe at 1.15 am”.

It is hard to imagine what sort of reception children get—these are children—arriving at a prison a long way from their home at 1.15 in the morning.

In a further Written Answer on 21 March the Minister told me that,

“between March 2006 and February 2007, 90 juvenile prisoners”—

that is, children—

“shared transport with adult prisoners while being escorted to HMYOI Huntercombe”.—[Official Report, 21/3/07; col. WA 211.]

Neither of those pieces of information in any way suggests a satisfactory situation. I hope that the Minister can assure us that she is very concerned that these transport arrangements should be radically changed.

I rise to add a brief word of support for this self-evidently valid amendment; it has been powerfully moved. During the inquiry, to which I have referred several times, of the Joint Committee on Human Rights into deaths in custody, what we heard directly and indirectly left me in absolutely no doubt that this is a priority area.

What has been described is so degrading a way to treat human beings that it is appalling to hear it. We have all had the same briefing and read Ann Owers’s report, so we all know what is being referred to. As my noble friend Lady Stern said, arriving so late after a long journey makes it difficult not just for the young offenders being held in remand but for the staff who have to cope at that time of night. No one is at their best at that time. I am certain that the Minister is at least as concerned about all this as the rest of us, so I do not think that there is much point in prolonging my remarks, but I hope that positive action is being taken.

I add a brief word of support for the amendment. One can hardly listen without pity to the account that we have been hearing and without regret that such scenes are taking place in our country. It is more like a passage from Dostoevsky than something that should happen to our children.

The Government fully agree with the intention underlying the amendment, which is to ensure high standards in the arrangements for escorting young people to and from custody. There is concern that trainees on occasion have a long journey from the court to the custodial establishment and sometimes arrive there at a late hour. I assure the Committee that we are well aware of the issues and that the Youth Justice Board has been active in seeking to remedy them, but as much as we abhor even one occasion when that happens it would be remiss to think that this is the general situation or that it happens a disproportionate number of times. Even if it happens only once, we would want to work hard to eradicate it, so that is by no means to detract from its importance. I know that noble Lords understand that we have made significant improvements in this regard over the past few years.

The solution, however, does not depend on additional legislation. Paragraph 3 of Schedule 1 to the Criminal Justice and Public Order Act 1994, a provision brought in by noble Lords opposite when they were in Government, places an express duty on custody officers carrying out escort functions to attend to the well-being of persons in their care. Rather the key to improvement is through changes to the contractual arrangements. It may help the Committee if I explain what they are.

There are two separate escorting contracts covering young people under 18: one managed by the Youth Justice Board to convey young people to and from secure training centres and secure children homes and another managed by the Prisoner Escort and Custody Service, PECS, to convey trainees to and from young offender institutions. The arrangements specified in the secure training centre and secure children’s home contract are very satisfactory and they are working well. The contract provides for escort in an ordinary unmarked vehicle—a people carrier—in which the young person travels with a team of three custody officers direct to the required destination. There is a minimum of delay because the escort team is usually responsible only for a single young person. The Prisoner Escort and Custody Service contract for under-18s also requires the contractor to have regard to the welfare of the young people being escorted, for example by minimising journey times, providing regular comfort breaks, meals, drinks and where necessary access to medical care; but multi-occupancy cellular vehicles that may call at more than one destination per journey are used. As the majority of trainees are placed in young offender institutions, providing escorts to and from those establishments is much the larger operation and there can on occasion be difficulties in delivering young people on time. The Youth Justice Board has for some time been working to improve the operation of the PECS contract and has spent approximately £5 million a year since 2004 on measures to ensure separation of under-18s from older offenders during escort.

Together with other stakeholders in the PECS improvement implementation project, the Youth Justice Board is working to achieve changes to operational arrangements, performance measures and the submission of data by contractors. A new partnership agreement between stakeholders has also been drawn up. The board is working very hard to achieve improvements, and I assure the Committee that we are taking the issue very seriously. I hope that noble Lords will see that the difference will be made through tightening up the contracts, enforcing them and making sure that we can get them to deliver that which we aspire to achieve. I share the concern; we are focusing on the issue and I assure the Committee that we will continue to do all we can to ensure that those honoured by a contract do some honouring themselves.

I am grateful to all noble Lords who have spoken in support of the amendment. As the noble Baroness, Lady Linklater, said, we must seek to deliver best practice the whole time and not allow worst practice. We heard some examples of worst practice that still unfortunately prevail. The noble Baroness, Lady Stern, referred to the independent monitoring board’s report on Huntercombe, where there were extremely late arrivals and on one occasion two young people were delivered at 1.15 am. The cynical might, in reading such a report outside, say that in their experience some young people habitually do not go to bed until 1.15 am, and might ask, “So what? What is wrong with that?”. If young people lead such a disrupted way of life which gets them into an offending pattern, it is important that when they come within the criminal justice system they are not shown that they will be permitted to continue that way of life. They need to be given a more structured way of life, which has to begin the moment they leave court. That is not assisted if they are treated, as they sometimes are, with disrespect as soon as they are put into the transport system. I hear what the Minister said; I have no doubt that she is committed to ensuring that the conditions are as good as may be within the system. I acknowledge what she said: improvements have been made but not enough.

The Minister says that in any event the amendment is not necessary because, as she correctly points out, Schedule 1 to the Criminal Justice and Public Order Act 1994 already imposes a duty on custody officers in carrying out their escort functions to attend to the well-being of persons in their care. All of us have moved on in many respects since 1994. This is not new Labour marching towards new horizons; society’s expectations of how people are treated in custody have moved on. Our attention to the needs of children in particular has changed over the years, and my amendment highlights the importance of treating young offenders in a special way and safeguarding their welfare.

Despite what the Minister says, this is an important issue that needs to be addressed. My honourable friend Mr Garnier made it clear in another place that we do not consider this to be merely a debating matter. He could not resolve it in the other place because the timetabling did not allow a resolution. I therefore felt that it was right to consult those who are concerned with youth justice matters before the matter was debated today. They gave their support to the amendment, and I gave a commitment to seek a resolution in Committee if at all possible. I like to keep to my commitments and, because this is an important matter, I wish to test the opinion of the Committee.

Clause 32 agreed to.

126: After Clause 32, insert the following new Clause—

“Mental health diversion schemesMental health diversion schemes

(1) The Secretary of State shall establish mental health diversion schemes to operate at all—

(a) crown courts;(b) magistrates’ courts; and(c) police stations.(2) Under this section “mental health diversion scheme” means a scheme under which all those charged with an offence shall be considered for—

(a) assessment by a qualified mental health nurse; and(b) if in the opinion of the mental health nurse the person charged is suffering from a mental health disorder, diversion from the criminal justice system towards treatment in a mental health facility.(3) For the purposes of this section a mental health diversion scheme may be established to operate at one or more of the places listed in subsection (1).”

The noble Lord said: In the absence of the noble Lord, Lord Ramsbotham, who is extremely sorry not to be here—and having seen the reason for that, I am sure that the whole Committee would be with him—I will briefly move this amendment. Anyone who has had anything to do with the penal system knows that one of its tragedies—and I use that word in the full significance of its real meaning—is that there are far too many people there who should not be in prison at all. It is a completely inappropriate place for them, because of their mental condition.

What has struck me in recent years, in making some prison visits, is that among the better and the most committed prison staff is something approaching anger in their frustration with the situation, because they say, “These people should not be here, and you are asking us to do jobs that we are not equipped to do—and, in any case, we are without the premises or facilities to do them in”. There really should be alternative provision. From that standpoint, when I saw that the noble Lord, Lord Ramsbotham, was tabling this amendment, it seemed to meet one of the areas urgently requiring reform and action. For that reason, I was glad to support it and I beg to move.

I warmly support the amendment in the names of the noble Lord, Lord Judd, and my noble friend Lord Ramsbotham. I cannot imagine that the Minister will not also support it. I think it is right to say that the Government have put out a number of recent reports making it clear that their view is that mentally ill people should not be imprisoned, and that they would like to find a way of removing them from prison.

This is in no way controversial. Having mentally ill people in prison is grossly dysfunctional both for them, because they get more ill, and for the system. It makes huge demands on resources by filling up prison beds that are not really available, while the staff are clearly not trained to deal with mentally ill people. It is also wrong, and could be described as cruel and inhumane, to put somebody who is ill in a place of punishment.

Why are mental health diversion projects not everywhere? They are not in the least controversial. Such schemes have run successfully for many years and in many places. There are people who know well how to do them, police stations where they have been running for years and a number of courts that had them, in the past, as a feature of what they could offer. We would have expected this Government to have accepted this sort of project and to have put it in place many years ago. The case for it is unanswerable, and I am happy to support the amendment.

I support this amendment in exactly the same terms as the noble Baroness, Lady Stern. At one or two points during the Committee, I have felt that we have been losing sight of some of the broader aims of the Bill. Most of us are committed not only to more effective management of offenders and to their rehabilitation, but to reducing substantially the growing size of our prison population. It was that which fed the amendment on not easily putting young people in prison; with this amendment, we very much want to make sure that people who are mentally ill are dealt with appropriately—a word that I know is beloved of the Minister. Therefore, we really hope that the Government will find a way either to accept this amendment as it stands, or to give us an assurance that they will return on Report with a government amendment in similar terms.

I also support the new clause in the amendment. We all know the situation facing us; far too many people in prison suffer mental ill health. A high proportion of those in that situation are women. I will waste no more time, but this is something that should be considered very seriously.

We on the Conservative Benches support this amendment and those of your Lordships who have spoken on it. It raises the vital question of the proper management of offenders. Again, the noble Lord has hit the nail on the head in tabling an amendment that would fulfil the scope of this Bill better than the Bill itself. I am grateful to the noble Lords for introducing an amendment that addresses so succinctly my concerns and those of my colleagues in another place. I take this opportunity to pay tribute to the tireless work of my honourable friend John Bercow, the Member for Buckingham, on these matters.

It is hardly controversial to say that mental ill health in prisons is a crucial problem. Around 70 per cent of those taken into custody have at least two identifiable mental illnesses, so we are not talking about only those whose incarceration has caused depression. Among the young taken into custody, the chance of recovering from mental illnesses diminishes with every year that they are incarcerated with insufficient care, and it has been accepted by all parties—countless times, and in countless debates—that truly effective offender management starts with a proper diagnosis of the cause of offending. The noble Lord has already outlined how important it is for the punishment to fit not simply the crime but the offender as well. Prison without care for offenders with mental ill health only exacerbates existing problems.

The Minister noted the Government’s desire that the National Health Service should take responsibility for the commissioning of health services for prisoners, although she made it clear that responsibility for prisoners’ health in all forms should remain outside the direct remit of the criminal justice system. But have the Government not considered that health screenings on entry into prison, for example, place health issues at the heart of the criminal justice system? Will the Minister consider that mental ill health not only can characterise a prisoner’s motives for offending, but should characterise the type of care allocated?

The amendment will ensure that the criminal justice and health agencies work together to ensure that resources deployed in rehabilitation are used in the most effective and appropriate ways. Significantly, early intervention in carrying out a mental health assessment at the point of charging could give invaluable guidance to the courts in providing for the terms of sentencing.

This is one of those occasions when one can be reasonably happy in saying that there is not a great deal between the position of the Government and those who support the amendment of the noble Lord, Lord Ramsbotham. However, there is a big “but” in how we think these matters can better operate with greater flexibility.

While we fully accept that people suffering from mental disorder who come into contact with the criminal justice system should be given the treatment they need, we believe that the amendment goes too far and is inflexible. Many court liaison and diversion schemes are in operation. The Government accept that these schemes vary in the quality of the support that they are able to provide. Some are able to provide only limited support to the person who comes before the courts.

At present, the better diversion services provide a range of multi-disciplinary team activities across the whole spectrum of the criminal justice system, and support the police at an earlier point in the path to custody for those vulnerable patients who repeatedly come before them. The courts already have powers under the Mental Health Act 1983 to divert offenders to hospital for treatment. Under Section 35 of that Act, they may remand an accused person to hospital for a report on their mental condition, and under Section 36 they may remand an accused person to hospital for treatment. The police also have the power under that Act to remove a person who appears to be suffering from mental disorder to a place of safety. This is for the purpose of enabling him to be examined by a doctor or interviewed by a social worker, and for the making of any necessary arrangements for the accused person’s treatment or care. Statutory arrangements are already in place to enable the courts and the police to divert people into treatment for mental ill health.

The Government accept that more should be done in this area, but believe that the best way to take this forward is by non-legislative means. To legislate would be to force local commissioners to implement a one-size-fits-all service that took no account of local need. It could undermine existing practice in which local health commissioners were allowed to make their own assessments of the balance of needs and provision in their local communities, and thereby secure the most appropriate levels of service and skill mix to meet those needs.

Our intention is to publish guidance this year to the National Health Service and partner agencies that supports the development of local services that build on the best of what already exists. By that I mean factors such as multi-agency provision, financial stability, information-sharing protocols, effective leadership, adequate levels of staffing and a clear role definition.

I think that we are at one with noble Lords in our policy intent and direction. We differ in how we seek to achieve a far better quality and level of service. I hope that my words of reassurance to the noble Lords who tabled the amendment and spoke to it will enable it to be withdrawn.

I thank my noble friend for that reply. This is one of those difficult situations that are not unfamiliar during Committee, whereby the Government are in agreement with our concerns but are unable to do anything. Meanwhile, lots of people in prison should not be in prison and that does not permit any progress whatever towards their rehabilitation and, in too many instances, makes their condition worse. It puts intolerable strains on those in the front line of the Prison Service who, as I have said, have made it plain that they believe that they are being asked to do something that is quite inappropriate.

For all those reasons, while we are glad to hear that the Government agree with us, something must be done. Although what we are proposing is unacceptable to the Government, we will have to put on our thinking caps as to how we can do something that might be acceptable to them, in view of their deep commitment on this issue. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127 not moved.]

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.