rose to move, That an humble Address be presented to Her Majesty praying that the rules laid before the House on 13 June be annulled (SI 2007/1709).
The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I am grateful for the opportunity that I have enjoyed to consult and discuss these matters with the noble Lord, Lord Hunt of Kings Heath, who has been as helpful as ever, with the Minister of State, David Hanson, who is known for his fairness and objectivity, and with the Youth Justice Board. All have shown the utmost courtesy, for which I express much thanks.
I await with much interest the Minister’s response to the Motion. I hope that the Motion will demonstrate that, if not the power of prayer, then the power of a Prayer can save one from unintended and dreadful consequences. I hope that this will be one of those occasions when the procedures available in this House can be shown to be of use in achieving a consensus on issues as extremely important and very difficult as secure training centres.
I feel bound to say to the House that when Statutory Instrument 2007/1709, which we are now debating, appeared last month, it caused cavernous consternation among those of us who have an interest in and some knowledge of the use of physical restraints in secure training centres. We were shocked that there appeared to have been no, or almost no, consultation outside the Youth Justice Board and the Government before the statutory instrument was promulgated. The instrument appeared to reject in its entirety, and contrary to previous indications, the Howard League’s independent report of January 2006, which I had had the privilege of chairing. It appeared to reject the well informed opinions of individuals and groups, including the Children’s Commissioner for England, the Commission for Racial Equality, Inquest, the NSPCC, the Children’s Rights Alliance, the National Children’s Bureau and Justice.
The sheer bareness of the text of the statutory instrument offers the spectre of turning back the clock several years in relation to the use of restraint on young offenders in custody. The frankly awful and inadequate Explanatory Note increased that concern. I regard the term “Explanatory Note” in this context as almost an oxymoron. In general terms, the Government owe a duty to the many people interested in this kind of subject to produce better explanations than that arid Explanatory Note.
If that note was to be taken at face value, physical violence towards teenage prisoners is to be permitted where, in the subjective opinion of what may be a fairly junior person in temporary charge of a privately operated secure training centre, to use that violence is necessary,
“to ensure good order and discipline”.
The effect of this, on the face of the statutory instrument at least, is to make the use of physical restraint one of the items on the menu of first choices available in any secure training centre, whenever there is a sign of trouble. That is simply unacceptable.
The Explanatory Note was regrettably exacerbated by the Youth Justice Board’s so-called stakeholder briefing of 27 June this year. That stakeholder briefing deserved the fate that its title implies—to be burned, and quickly—because it was so misleading in several respects. I gave a number of examples of these to the interim chair of the Youth Justice Board when I had the welcome opportunity of seeing him recently. Given the cohort of young offenders we are discussing, the approach as it appears from the statutory instrument is an extremely bad idea.
Various experts on this subject, I believe without serious or informed demur, share some broad conclusions. I will cite five of these. First, some staff, albeit a tiny minority of a hugely dedicated cohort of professionals, are too ready to use violence. Unfortunately, rogue staff are persistent, devious and difficult to root out. Secondly, being restrained is seen as a mere right of passage by some detainees. I was told this on numerous occasions when conducting the Howard League inquiry. If I may be forgiven a mixture of metaphors, when staff rise to the bait, more violence is a self-fulfilling prophecy.
Thirdly—and this is very important—a large number of detainees have suffered physical and sexual abuse already in their young lives. They need to be taught by and find from the examples of adults that there are other ways in which to deal with tension and that it is possible to break the cycle of violence to which they are accustomed; they do not need to suffer yet more at the hands of rogue staff in secure training centres. Fourthly—and unfortunately there is empirical evidence for this—the use of even authorised violence can prove dangerous and even fatal.
The fifth of what I believe are the shared conclusions is that, whereas in a generally unsuitable youth custody estate such facilities as exist for organised physical activity, if used fully, would lower the general level of violence, physical restraint does the opposite. In that context, I make a plea to the Minister and to his right honourable friend David Hanson to look at the physical estates of secure training centres. They are far too small, have practically no playing fields and hold groups of young men who need outdoor activity but are not receiving it.
I turn for a moment to the statistics, which speak for themselves. The use of restraint in the four privately run secure training centres in England is an unpleasant secret of our overstuffed custody estate. There are only 250 or so children currently housed in the STCs, yet those children—some as young as 12—are subject to an extraordinary level of restraint. The STCs were originally designed for those children who were too young or vulnerable to be in Prison Service-run young offender institutions. Yet in the STCs physical restraint—using what are called distraction techniques, which involve up to 10 staff restraining children and inflicting pain by bending the thumb forwards or down, hitting the nose from underneath and using the knuckles to hit into children’s ribs—is used disproportionately and often against the same children several times a day.
Last December, I asked a Parliamentary Question that revealed that in the space of a year physical restraint had been used 3,036 times on a population of around 240. Of those incidents in which restraint was used, 1,245 involved girls, which meant that 41 per cent of all restraint usage was perpetrated on girls, who represent only about one-third of the STC population. Furthermore, the Commission for Racial Equality has highlighted a disproportionate use on young black males, with evidence of discrimination. We should sit up and take notice of those findings.
The STC rules are clear that restraint should be used only when children are attempting to escape custody, injure themselves or others, damage property or incite other children to a violent act. A quick glance at the figures that I have given—and there are many other figures available—immediately suggests that, if these rules were being adhered to, the number of restraint incidents could be reduced dramatically.
Recently there have been inquests into the death of Gareth Myatt while being restrained and the suicide of 14 year-old Adam Rickwood, who hanged himself with his shoelaces after being restrained by staff at an STC. It became clear in the inquest that restraint was being used routinely to secure compliance—in Gareth’s case because he refused to clean a sandwich toaster and in Adam Rickwood’s case because staff wanted him to go to his room. Once the lawyers for Adam Rickwood’s mother raised this clear breach of the STC rules, the Youth Justice Board signalled that the rules would shortly be clarified. Yet what we got in response to those inquests was this statutory instrument. I am afraid that the impression has been left that this statutory instrument was introduced not to meet the criticisms of those inquests, but to evade them. I hope that the Minister will confirm today that the evasion is now over.
The inquest into the death of Adam Rickwood concluded in May of this year. He was found hanging in his room in Hassockfield STC at around midnight on 8 April 2004. In the hours preceding his death, he was subjected to restraint by four male officers, including a technique designed to inflict pain known as “nose distraction”. This was said to have caused Adam to have a nosebleed that lasted for an hour. There was no suggestion that any of the criteria set out in the STC rules that could have justified Adam’s restraint had been met.
It became clear at the inquest that the circumstances in which Adam had been restrained were commonplace and that children were regularly being restrained as a punishment and to secure compliance outside the rules, which had been in existence for some years. Safeguards put in place to protect vulnerable children were not affording them the protection that they should have under the law, nor had the monitoring of the Youth Justice Board identified and acted on these unlawful practices. The inquest heard that, in the year leading up to Adam Rickwood’s death, restraint was used in Hassockfield, which has a capacity of only 42 children, on 972 occasions. Gareth Myatt died while being restrained and in wholly unacceptable circumstances.
Such events must not be repeated and loose rules should not permit such events. I hope, therefore, that the Minister, in a spirit that I know he will follow of trying to assist this House, will be able to provide clear ministerial guidance of the kind that will clarify in a Pepper-v-Hart-usable way—in other words, usable in administrative judicial review proceedings—that this new statutory instrument is not intended to dilute the rules at all. I hope that the Minister will tell this House loud and clear that the use of physical restraint remains a last resort and that what appears in these rules and the arid Explanatory Note are not to be taken at face value.
I trust that the Minister will tell the House that physical restraint should be available only where it is necessary and when no alternative method is available to prevent escape, injury or serious damage to property by the person restrained or another. Within the past few days, an inquiry was announced into the use of restraint in STCs, although, I fear, without as much clarity as one would have wished. I first discovered it on the Youth Justice Board website in a press release that welcomed the inquiry, but without details. I hope that the Minister will clarify the scope and nature of the inquiry.
I have conducted one independent inquiry into this subject and I suppose that I should be the first to welcome one more inquiry—but perhaps only one more. This inquiry should not be seen as a major delaying tactic. The evidence, including the Howard League report, is sitting there, waiting to be acted on. To be of value, the inquiry announced this week must have a chair truly independent of government, of the Youth Justice Board and of the Ministry of Justice. To meet need, the inquiry should report quickly. It should truly involve the new Department for Children, Schools and Families. One of the thrusts of the Howard League report is that we are dealing with children and that this group of children fit more comfortably with a government department dealing with children than with one dealing with criminal justice. At the very least, there should be a clear partnership between the two departments in dealing with that question.
The inquiry should look at medical issues. In my view, serious issues about the medical safety of restraint techniques need to be addressed. Above all, the inquiry should be prepared to consult widely, albeit over a short period, to call for papers and to consider the views of everybody who wishes to make submissions to it. In that, I include consultation with members of the client group—I have done it and it is possible—while they sit in custody in these places. They have a lot to offer; some of them are very bright but have a long way to go to put their ability to good use.
Given the level of support that our Howard League report found, it is a disappointment that the report remains largely unacted on after 18 months. However, there are much more important things than my personal disappointment because I chaired that review. Much more important is that we ask for reassurance today that the statutory instrument means rather more, in a positive sense, than it appears to say, and that we ask for a commitment from the Minister that the Government will look in an enlightened way at this most important question of public policy.
Moved, That an humble Address be presented to Her Majesty praying that the rules laid before the House on 13 June be annulled (SI 2007/1709). 25th Report from the Merits Committee.—(Lord Carlile of Berriew.)
My Lords, I support the noble Lord, Lord Carlile. I can understand the need for physical restraint when young people are likely to harm themselves or others, or to damage property, or are at risk of absconding. However, as the noble Lord, Lord Carlile, amply demonstrated, the number of incidents compared with the number in our secure training centres is deeply worrying: 10 incidents a year for every young person in a security training centre. As we heard in Adam Rickwood’s case, there were 20 incidents for every person at Hassockfield.
What strikes me is that these are meant to be secure training centres, and what troubles me is that that very term may be undermined by the extensive use of physical restraint. I am not sure how training and physical restraint go together. While physical restraint may be necessary sometimes, it is quite as likely to breed resentment, bitterness and further violence as much as it is compliance. It certainly does not provide a very adequate vehicle of training, which makes me fear that the purpose of these centres is being undermined, since it is to open up these most vulnerable offenders to education and training.
If it is now impossible to maintain good order and discipline in secure training centres without more frequent use of physical restraint, the last thing we need is more permissive regulation, which is what we are faced with, allowing even more extensive use of physical restraint. What we need instead is a fuller inquiry—and I hope it will be the last—into that aspect of our youth justice system. I add my voice to that of the noble Lord in pleading that this may be the very last inquiry but that it is one that considerably amends the so-called amended regulation.
My Lords, it is a sad occasion, and I am sorry that the Minister has to deal with such a distressing matter so soon after taking up his new position, in which I wish him well. I know that his appointment has been welcomed by all those who are active on justice matters in this House.
I would have wished that, in only his second week in the post, he was not required to take on the task of defending the indefensible and supporting the insupportable. Anyone in the House who doubts my use of those words should, I suggest, read the Adjournment debate in another place on 12 July in the name of the Minister’s honourable friend Sally Keeble. She said that the events of Gareth Myatt’s death were “harrowing”. Noble Lords may agree that reading that debate is itself harrowing. Sally Keeble has been tireless in exposing what she calls the “tragedy” of the individual death and the scandal of the stonewalling when people tried to get improvements in the regime. She quotes one of the staff who apparently told the inquest:
“I should never have PCC’ed”—
that term is used to refer to restraint—
“he was half my size. It was rather like having run over a cat and then thinking ... if I hadn’t gone down that street, it wouldn’t have happened”.—[Official Report, Commons, 12/7/07; col. 1715.]
We have been talking in this House for some time now about the regimes in secure training centres but we have been limited in what we could say by the sub judice rule, because the inquests of the two children who died in those centres were pending. The two inquests have just concluded with key verdicts that are very critical of current arrangements. We must recognise that, had these two children been living in Scotland, they would in all probability be alive today. If they had been placed in a local authority secure children’s home, they would in all probability still be alive today. Since the inquest ended, there has been considerable concern, and even anger, about a system of youth justice that puts vulnerable children into such a regime. There has also been great concern about the Youth Justice Board and the arrangements that it makes.
That concern has been shared by the Joint Committee on Human Rights, of which I am a member; it has raised questions many times about the compatibility of our system of detaining children with the United Nations Convention on the Rights of the Child. Last year, the committee requested information on a three-monthly basis from the Government on staffing levels, the use of restraint, injury arising from self-harm and other non-accidental injury. No information has been provided for 2007, although it has now been requested. Information from April to December last year showed a truly disturbing picture. The minimum—I stress that word—staffing level was not met at Oakhill Secure Training Centre in any one of those three quarters. There were, in those three quarters, nearly 2,000 incidents of restraint and 500 incidents of self-harm. No one looking at the data would be surprised at the announcement made last week that the Youth Justice Board has taken a quarter of the children out of Oakhill Secure Training Centre. The Youth Justice Board must have been very concerned indeed about Oakhill, since the inspectors went in in May 2005 and found such low staffing levels that:
“Between 28 March and 24 April, there was not a single day when the STC was anywhere near reaching the minimum staffing levels”.
The information provided to the Joint Committee on Human Rights, although skeletal, gives a picture of the sort of children locked up in secure training centres. That can be deduced from the figures showing injuries resulting from self-harm—more than 500. These are the most vulnerable children. In the Adjournment debate, Mark Fisher MP, who was the MP for Gareth Myatt, said of him:
“He was so small that he hardly existed”.—[Official Report, Commons, 12/7/07; col. 1717.]
We do not have good information on the vulnerability of these children because a report commissioned by the Youth Justice Board on former abuse of the children held in STCs has been suppressed. I cannot imagine why that was done because what it contains is common knowledge to anyone with a basic grounding in social work or psychology.
When the statutory instrument appeared, the Joint Committee on Human Rights wrote to the Minister questioning the need for it and asking why the Government felt they had to take this step. The Minister replied to the Joint Committee, setting out the arguments. I imagine that the Minister today might well have been advised to deploy some of them. They were: that the Government had to clarify the law; that this is, after all, only what is done in schools; that there is a training manual which is in the public domain, apart from the section that describes the holds, which is suppressed; that it will be used only as a last resort anyway—so what is the problem?—and that it will not be used simply when there is a refusal to comply with an instruction because Section 9 of the 1994 Act, which is the key provision, specifies that “reasonable force” may be used to,
“ensure good order and discipline … where necessary”.
There is strong reliance on “where necessary”.
I would like to briefly comment on each of those arguments. The Government certainly had to clarify the law. It is astounding that, in the wake of the inquests of two such small vulnerable children, the Government decided to allow a wider use of restraint, rather than tightening it up and bringing it into line with local authorities’ secure children’s homes to prevent serious harm to the child or others. The Joint Committee was told that this is what is done in schools. There is no comparison with schools; they are not locked institutions, children can go home, parents can be called and teachers are trained for longer than seven weeks.
The suppression of the part of the training manual that describes holds is bizarre and inexplicable. One can only imagine that the Minister foresees children in secure training centres reading the manual and conspiring with each other to thwart what the staff might do to them. I do not find that a credible interpretation.
Finally, the Joint Committee on Human Rights was told that restraint will be used only as a last resort and that it will not be used just to ensure compliance, but only when necessary. Whose “where necessary”? Will it be the “where necessary” of the staff member who told the inquest into the death of 14 year-old Adam Rickwood—this was the staff member who hurt Adam by grabbing his nose—that:
“There is no way I would hurt a child in our care, that is why I warned him twice. The manual says we are supposed to warn them once, but I did it twice”?
Will it be the “where necessary” of the pressured staff at Oakhill, which is understaffed, with no trained social workers there at all some of the time and a population of children who keep cutting or injuring themselves? Whose “where necessary” will it be?
The Minister may tell us—I hope that he will—that he is setting up a review. He can do no less after two such tragic deaths and so much information in the public domain that raises questions about the role of the Youth Justice Board, the effectiveness of its supervision and its monitoring of secure training centres, which were all raised in the inquests regarding these two children.
I hope that the Minister will accept all the requirements for such a review, which were set out by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Carlile, for raising this Prayer and look forward to the Minister’s reply.
My Lords, I am deeply sympathetic to many of the points raised by the noble Lord, Lord Carlile, and I greatly respect the commitment that he has shown over much of his working life to the needs and concerns of young people in an institutional setting. I pay tribute to that. However, I take a slightly different view from him on this set of changes to the statutory rules. We need to dissect the problem a little more carefully, but I agree entirely with the noble Baroness, Lady Stern, that we need more transparency in the systems used in order to create better public understanding and improved accountability. I shall say a bit more about that.
I speak on this issue as someone who led the work on setting up the Youth Justice Board, which I chaired between October 1998 and June 2003. As an aside, when I left, the custody rates for children were falling, and I do not disagree with the noble Lord, Lord Carlile, that that sometimes changes the climate in some institutions. I was also a director of social services for six years and I have worked with, and seen at very close quarters, many of the troubled and troublesome young people in secure children’s homes, secure training centres and young offender institutions. The death of, or serious injury to, a child in any of these institutions is to be deeply regretted and is deeply saddening. We have to acknowledge that it is very saddening to many of the staff. It is easy to portray staff as callous in these circumstances, and I want to say a little more about the job that they do.
I have talked to many children in these facilities and have seen their care close up. I agree with the noble Lord, Lord Carlile, that, if we have a review, it is very important that we hear what they have to say and that we consult them about their day-to-day experiences of the regimes. Only in that way will we improve the regimes in these institutions. However, we must recognise that most young people in secure training centres have deeply disturbing histories and very often were out of control in the settings in which they were living before they entered the STCs. Some—perhaps as many as 20 per cent—have a long history of violence towards others and, indeed, towards themselves through self-harm.
In my experience, the staff are usually dedicated but, of course, they are not saints. I acknowledge that there are some rogue staff, but the same is true in police custody suites, secure children’s homes and YOIs. Some rogue staff will be found in many of these settings. I do not say that with any satisfaction, but it is the reality that we face. In my experience, most staff are usually dedicated, but they can be provoked by the children. Equally, I acknowledge that a minority of staff provoke the children, just as some prison officers provoke prisoners. In a closed institution, it is not unusual to see that kind of behaviour on occasion. That is why we have staff rules and staff disciplinary procedures, and we have to be robust in applying them. Some of us have had to sack people who abuse the duty of trust that they bear when they take on these jobs.
This does not mean that we do not need this change. I shall not try to defend the process by which we have reached this statutory instrument; I do not know enough about it and I am perfectly prepared to accept the argument of the noble Lord, Lord Carlile, that it could have been done a lot better. However, I do not accept that we do not need to clarify the legal responsibilities of staff working in these institutions, and that is what this measure does. It does it in response to the inquest into the sad death of Adam Rickwood.
In considering the merits of this rule change, we need to go back a little in history. When the Youth Justice Board was set up in 1998, it was given responsibility for commissioning places for young people who needed to be detained in secure children’s homes, STCs and young offender institutions. It was not given responsibility for running these facilities, but it did set standards. One of the most difficult issues it certainly wrestled with when I was involved with it is this area of physical control and constraint. One of the long-standing problems has been that there are different systems in operation in the three establishments where the Youth Justice Board commissions places, but the board has no legal responsibility for physical control and constraint. The Home Office and the Home Secretary have continued to retain responsibility for PCC in secure training centres.
Rule 38 of the Secure Training Centre Rules, made in 1998, makes clear that young people can be restrained only in circumstances and using methods approved by the Home Secretary, not the Youth Justice Board. In practice, the Prison Service training college has continued to fulfil the Secretary of State’s function of training STC staff in methods of constraint approved by the Home Secretary on advice from the Home Office juvenile offender unit. We need to be clear where responsibility has lain in this area.
However, the STC rules do not explicitly permit STC staff to use reasonable force to maintain good order and discipline in STCs; nor do they allow the YJB to intervene in this area. This statutory instrument will allow the staff of STCs to use physical intervention as a last resort to maintain good order and keep staff and residents safe and secure. I believe it is reasonable to put that point beyond legal doubt so that STC staff can use physical restraint as a last resort to maintain order in establishments which, we have to recognise, have a substantial number of residents with a potential to engage in disorder that is dangerous to themselves and others. That is, after all, what the coroner presiding at the inquest into the tragic death of Adam Rickwood was seeking.
The question then for consideration is whether there are sufficient safeguards in place to deal with the potential misuse of that clarification of legal authority for staff. Here I take a different view from some people in the debate, although I have some continuing concerns that I wish to leave with my noble friend about the position in which the Youth Justice Board is left. Nothing in this specific change in this order makes it more or less likely that STC staff will abuse young people in STCs. Unjustified use of force by staff remains an assault. The evidence suggests that the use of restraint in STCs is, if anything, a little lower than in secure children’s homes.
In my view, nobody associated with the Youth Justice Board supports the use of force simply to secure compliance with instructions such as bedtimes. The YJB's own code of practice makes explicit that restraint should always be used as a last resort and never as punishment. Physical control and constraint has been developed specifically to avoid relying on pain to manage the behaviour of young people. However, there are extreme circumstances where staff are permitted to use a sharp burst of pain to the nose, thumb or rib where all other attempts to control a young person have failed and a serious situation is developing, or has developed, that has a material impact on the running of a centre.
I acknowledge that judging in particular instances whether reasonable force has been used can be difficult, but the central proposition under which staff are operating does not seem unreasonable. Sometimes staff are dealing with volatile situations where they could easily lose control if matters are allowed to escalate. Clarifying legally their ability to retain control is essential.
Let us reflect on the alternative, which is to allow the situation to get out of control and to have to call in the police or the Prison Service to put down a riot. That is the alternative unless we allow staff legally to use judgment in handling particular situations. I do not think that the alternative is a road down which any of us want to go, in the best interests of children.
However, I have some concerns that I ask my noble friend to consider with some urgency and report back on to Parliament. They relate to the legal accountability in the area of physical control and constraint. As I have said, the Youth Justice Board has no legal responsibility, but people seem to assume that it has. There are different arrangements for PCC in different establishments for which the Youth Justice Board contracts the services—secure children's homes, STCs and young offender institutions. The YJB has no clear legal responsibility in relation to PCC in those areas. It has used its general duty of care—wisely, in my view—as the legal basis on which to issue a code of practice.
However, its ability to ensure that staff are trained in what it regards as good practice is constrained by its legal position. That is not satisfactory and led to legal confusion in the tragic death of Gareth Myatt in April 2004 in an STC. The coroner’s inquest seems to have been wrongly informed by lawyers acting for the Government that responsibility for advising on physical constraint had been transferred to the Youth Justice Board. It has not. It has remained with the Home Secretary and is now still with the Secretary of State for Justice. It is a Minister and a department, not the arm’s length Youth Justice Board, who make the rules in this area. It is not a shared legal responsibility. It is my view that the Youth Justice Board has always been in an unenviable position in this area. That is why it has expressed its concern about that in the past.
I feel that I ought to say that in this House, because it is jolly difficult for the Youth Justice Board to say so itself. An urgent review by the Ministry of Justice is required to put the accountability for physical control and restraint, including methods and training of staff, in the three areas for which the YJB has contractual responsibilities, on a much clearer legal basis. Personally, I have some reservations about the nose technique, which has been mentioned. There are certainly issues about the variable systems of training for staff working in those three different types of facilities, but we should not just concentrate on STCs if we want to improve training of staff looking after many vulnerable children.
I ask my noble friend to consider an urgent review with his ministerial colleagues. Subject to that consideration, I support the order as a proper way to protect staff in STCs in the difficult job that they do on behalf of us all.
My Lords, I shall make a one-minute speech. When the inquiry takes place, will it look into the whole principle of the use of distraction techniques as something that a civilised society uses on our young people? I understand the need for restraint, but deliberately inflicting pain and suffering is an issue of principle that an inquiry should consider.
My Lords, I support the noble Lord, Lord Carlile, in his Prayer to annul. Much of what I would have said has already been set out splendidly by him, my noble friend Lady Stern and others, so I will confine myself to one or two points.
The amount of restraint used in secure training centres is quite astonishing. If, as the Government hope, the techniques of restraint are used only as a last resort, it seems extraordinary that they are used so often. It is most people’s experience when dealing with children of this kind that they are indeed the most troubled and troublesome, and that almost all of them have profound long-term mental difficulties. Many, as we know, will go on to self-harm for several years and many will remain in institutions for the rest of their lives. They form a profoundly disturbed group.
As the noble Lord, Lord Carlile, said, we have stakeholder comments in the briefing from the Youth Justice Board about when such techniques might be used. He did not give us an example, but I hope that he will allow me to quote one provided for us in its notes on 27 June:
“For example, if a young person on a house unit refuses to go to bed, a number of staff members may need to sit with him or her. If this means there are insufficient staff on hand in the unit to carry out duties such as monitoring other young people who may be at risk of self-harm, other young people may be at risk. PCC”—
“may have to be used if all other avenues fail. Similarly if all young people on a house unit refuse to go to bed, there would be a breakdown of the safe operation of the unit”.
So we progress ineluctably from a simple refusal to go to bed to a violent act, albeit sanctioned, in the name of prevention when clearly there are a number of other ways in which someone might be able to intervene in such a situation. That strikes me as one of the worst circumstances in which to use techniques of this kind.
If we look at the figures for the use of restraint in the four centres, there is a threefold difference between the use of restraint in one centre and its use in another. There are three possible reasons for this. The first is that incidents are being recorded in different ways. However, the guidance on how to record incidents suggests that that is unlikely. The second possibility is that there may be a different range of children with different problems in each of the four units. That is a real issue and the Minister may be able to tell me whether that is the case. However, I suspect, of course, that one unit is better staffed than another, has better training and leadership from its managers, and has staff who have learnt how to use their personal resources to control situations by spotting a potentially difficult one coming up and defusing it, thereby diverting the potential energy elsewhere.
I say to the noble Lord, Lord Warner, that I do not want to diminish the difficulties faced by the staff in these units, or the challenges that these children pose for them. None of us knows how to deal adequately with these children. We have maintained a pretty old-fashioned approach. There has been no real shift in our understanding of what are the best techniques to handle difficult and violent children from what it was 20 or 30 years ago. We know that the more use of violence there is, the more it will be perpetrated in further acts of violence as the child grows up. As was said by the right reverend Prelate, violence begets violence. Too many of these young people will go on to live lives where their only relationship with other people is exercised through further violent exchanges.
I hope that we will look seriously at reviewing the use of these techniques, and consider the point made by my noble friend Lord Dearing about the totally unacceptable and dangerous acts which are both difficult and dangerous for the person perpetrating them but far worse for the children on the receiving end, who are at serious risk of death from asphyxia or cardiac arrest, particularly when they are taking mental health medication. Further, we should look rather more closely at what research there is into how to manage these children. I suspect that we are putting them into secure training centres of the kind we have at the moment, into our criminal justice system youth offending institutions, and even local authority homes because we really do not know what to do with them. Let us take a closer look at this.
My Lords, since STCs were first created we have witnessed the resolute determination of the Government to expand child prisons, via the private sector, despite strong opposition from many quarters, including in your Lordships’ House. Even by the crudest measurement of results, they have failed to deliver—reoffending is over 80 per cent—but it is the day-to-day management of the children which is the chief cause of our deep concern today. Before 1997 there were no STCs, but these children were contained, managed, treated and helped in secure children’s homes, psychiatric units and other facilities in the community. Yet, with a similar clientele, Scotland has found it neither necessary nor desirable to go down this route—thank God.
It was confirmed in a technical amendment during the Offender Management Bill that STCs are indeed classified as prisons, something that has been unclear in many minds when the YJB commissions places at both STCs and secure children’s homes for young offenders; of course, the latter are emphatically not prisons. The Bill also clarifies government policy that imprisonment is indeed the proper punishment for even our youngest, most difficult and troubled children, with a regime that will physically restrain them in the disturbing ways we are discussing. I take the view, along with most of the distinguished groups and organisations cited by my noble friend Lord Carlile, that penal custody is inappropriate and wrong for children.
The profile of the children themselves, who are as young as 12, is very important. The most telling phrase which has been used to describe this group is that they have a “disproportionate experience of loss”. This includes, literally, loss through bereavement or loss of family ties, loss of education, loss of mental health and well-being, loss of any place in the world, and loss of love. To have lost or never to have had such things in life is a terrible thing. There is overwhelming evidence that these children have a disproportionate experience of abuse—physical, emotional, sexual—and neglect.
What flows from this, inevitably, is that such children are extremely difficult, challenging and disturbed. Some are capable of terrible things and displaying truly awful behaviour, sometimes to themselves and sometimes to others. Skill and experience in the management of these children—a hugely difficult task—is essential; it is important that that skill and experience is present. They are crucially and centrally still children—with all the needs and vulnerabilities, as well as the rights, of children—to whom we have a particular duty of care, both legal and moral.
Yet we have managed to create regimes in which not only are they being forcibly restrained but where the process for restraint can and does damage them, not only emotionally—as we have heard, one child, Adam Rickwood, committed suicide following restraint—but also physically, including broken bones. On one occasion, tragically, a death resulted from a restraint called the double-seated embrace. I agree with Ms Sally Keeble in the other place, who was mentioned by the noble Baroness, Lady Stern, when she referred to a lack of sense of horror on the part of officialdom at the gruesome death of a boy and the catalogue of systemic failures on the part of various bodies, such as the YJB and the Home Office, which have taken years to come to light in an official inquiry.
Tonight we are looking at the use of restraint and the extension of its permitted use from the specifically defined purposes of preventing harm, either to the child or to others, escaping, damaging property or inciting others to do the same, to include good order and discipline. PCC—physical control in care—includes restraints called distraction techniques, involving the nose, wrist or thumb, which can cause pain, sometimes bruising and nose bleeds. My noble friend Lord Carlile was absolutely right to say in his important report on restraint, segregation and strip-searching of children in STCs that such techniques should never be used to enforce compliance or as punishment. The fact that such techniques have been used over 3,000 times in one year demonstrates that they are commonplace and used in ways specifically ruled out by my noble friend Lord Carlile. A culture of restraint has developed. To allow the vague criterion of “good order and discipline”—swearing or refusing to go to class are examples that have been given—would be to condone and endorse restraint unacceptably.
I have visited three of the four STCs, where I was welcomed and met staff whose commitment and good intentions were clear. I have even had the double-seated embrace—the one which killed Gareth Myatt—demonstrated to me. These are indeed places of imprisonment and, as the figures show, places of punishment—not only by virtue of being in prison but because of the way in which the children are managed when they misbehave. I have learnt only recently that metal handcuffs are used in STCs although they are not used in prisons.
It is the underlying ethos, the management styles—starting with the language of “trainees” and “custody officers”—and the perception of roles and duties that demonstrate a failure to understand the extremes of damage and need of the children in this care. I have mentioned before in the House that there was once a chance to earn a teddy bear for good behaviour—itself a graphic little detail—but that has since been withdrawn at Medway. The minimal training is totally inadequate to meet the huge challenges of dealing with incidents in these STCs except, as so often, through force and inflicting pain. There is the lack of opportunity properly to review an incident with the child, the failure of the monitoring process or proper reporting and, finally, even the inspection process is through CSCI, which knows all about children’s homes but not so much about prisons.
It need not be like this. At a secure children’s home in Scotland, St Mary’s Kenmure, whose clientele is exactly the same as those in the STCs, the ethos, management styles, skills and philosophy are very different. A crucial difference is the belief that the size of the place is important and should not be more than around 30 to 40 at most—half that of most of the STCs. All the large secure homes in Scotland are now closed. This is closely linked to the belief in the necessity of all the staff to really know and have a strong professional relationship with the children. For this, the whole environment must be small. To have a large place split into separate units is not the same and does not achieve the same thing.
Part of the aim of the regime and the relationships is to bring the children to the point where they can start to control their own behaviour. The development of self-belief in the children grows from the understanding that the staff actually believe in them. From that comes the possibility of change and the child wanting to change. This is not just good thoughts and thinking, but in that place a reality. It is a different world from that of the STC. The idea of restraining children using painful techniques is anathema. That is not to deny that there are sometimes challenging and alarming incidents which the staff have to deal with, chiefly using TCI—therapeutic crisis intervention—techniques, a process of de-escalation, talking wherever possible through the event and always, after any incident, a restorative process of discussion. Importantly, the debriefing is also there for the staff. Training is a pre-condition with care staff, as you might expect. Care staff have a minimum of an SVQ or an HNC, the teachers have degrees and all staff have twice-yearly training and refresher courses. This is an acknowledgement of the challenging nature of the task of working with these children and of the skills required. By 2010 St Mary’s Kenmure will be registered with the Care Commission, which also requires all staff to be properly qualified.
If we believe in our duties to children and in the possibilities for change and if we believe that it is wrong to harm any child—even our most difficult—while we work towards change, then it is imperative that we support my noble friend Lord Carlile against the unacceptable move to make it easier to do more harm under the pretext of good order and discipline. I would definitely welcome a review.
My Lords, I hope that the noble Lord, Lord Carlile, will not be embarrassed by an excess of prelatical support. There is something very attractive to Bishops about a Lord temporal proposing a Prayer, but that is not my reason for standing up.
First, I reassure the Minister and the noble Lord, Lord Warner, that this is not a debate between people who think that looking after disturbed young people is easy and those who think it difficult. This is not a debate involving people who think that they could do it better. I am among those in this House who realise that such a task would be very defeating and would provoke emotions in myself that might well lead to the unacceptable use of violence, were I not myself restrained by a regime over which Parliament ultimately has jurisdiction. Secondly, the House should acknowledge an enormous debt to the noble Lord, Lord Carlile, for his consistency and measured raising of the issues. His report was probably the most difficult read I ever had while bishop to Her Majesty’s Prisons. I could not manage it at a sitting, frankly finding it too distressing. However, if that was one of the most difficult things to happen at that time, one of the most hopeful was the restructuring of Ministries, and the appointment of the Minister who will answer this evening, as real opportunities for opening up a different direction and a view of justice that is fundamentally hopeful.
Also, in the context of this debate, the use of “clarification” about these rules is positively Orwellian. I do not wish clarification—which is certainly necessary—to be used as a cover. Like all noble Lords, I will be listening with great care to what the Minister says about what further clarification—real clarification of boundaries—he will offer as reassurance to the House. I understand that it will be for the noble Lord, Lord Carlile, to decide whether those government responses are adequate to the Prayer that he is proposing, or whether he needs to press the matter. However, I am pretty disquieted even by the thought that these rules will be on the statute book, because one of the things that statutory frameworks do is to create ethos, climates of opinion or cultures. While it may be true that you can clarify those rules, say what you really meant and produce boundaries around them, the fact is that we shall have in this country rules that say this kind of thing about the possibility of using physical restraint where necessary for the purpose of restoring order. That not only introduces an element of subjectivity into the lives of these young people, but opens the way for “rogue officers” to feel that there is a sneaking level of public support for them doing what we believe to be unacceptable.
The report of the noble Lord, Lord Carlile, gives us ample information. His speech this evening and those of other noble Lords and the noble Baroness, Lady Stern, give us ample evidence. I am not sure what a further review can be expected to unearth—I would be happiest if these rules were annulled. If that is not to be, I hope that the reassurances offered by the Minister will be sufficiently strong really to reassure.
My Lords, I support the noble Lord, Lord Carlile. I had the privilege of being a member of his review. I remember with interest that some of the recommendations that we made about restraint were subsequently rejected by the Government, and here we are again. Therefore, I have to declare that I very much share the sentiment of the right reverend Prelate the Bishop of Worcester in wishing that we were here to discuss the annulment of this statute, when in fact as I understood it we are discussing it rather in the context of the offering of a review. All I add, because many noble Lords have put all the things that I would like to have said, are the words that I have seen today for the first time of his honour Judge Pollard, sitting as assistant deputy coroner for the county of Northampton. He was responsible for the inquest into Gareth Myatt. He has used his power under the Coroners Rules 1984 to report to those who have the power to take action to prevent a recurrence of similar fatalities. He has written a 17-page letter to the Secretary of State, particularly stressing the absolute need, as the noble Lord, Lord Carlile, said, to
“listen to the voice of the child”.
I would like to quote from two paragraphs. The first states:
“I understand that there is now to be a ‘joint review’ on restraint, involving Young Offender Institutions, STCs and Local Authority secure units, namely LASUs and LASCHs”,
which are local authority secure units and local authority secure children’s homes. Judge Pollard continues:
“I trust that no-one will lose sight of the particular and very immediate problems of PCC and the STCs”—
physical control in care and secure training centres. He goes on:
“Earlier quests for a uniform solution as between STCs, YOIs and Local Authority units resulted in very serious issues being completely overlooked by the”,
Youth Justice Board,
“the need for a review of PCC being the prime example”.
Judge Pollard then says that, at the inquest:
“The Jury concluded that one of the factors that caused or contributed to Gareth’s death was the failure by the YJB and the Home Office (as it then was) to undertake a review of the medical safety of PCC. It would be a wholly unforgivable and a double tragedy, would it not, if the holding of this ‘joint review’ was to obscure the clear and urgent issues raised by Gareth Myatt’s death, or was to lead to any delay in learning from and acting on the lessons that result from his death”.
That is why I am concerned that we have yet another review. As the Minister will find, an absolute torrent of evidence is available now to justify a firm decision that, as the coroner said, the methods that have been used are being overused for all the wrong reasons. That is something it is our duty to prevent.
My Lords, I offer my support to the noble Lord, Lord Carlile, and join in paying tribute to the officers working in these settings with these vulnerable and most challenging young people.
I have a specific question for the Minister. Will the review look at the professional framework within which officers in these settings work, which has been mentioned by several colleagues today? Before entering this work, many of them will have had no experience of working with children. After eight weeks of training, which will emphasise mostly physical restraint, they will be expected to work with, as my noble friend has said, some of our most vulnerable children and young people.
We can move so far forward with this. In Denmark, 84 per cent of the staff in settings such as children’s homes have degree qualifications for that work, while in Germany the figure is 50 per cent. In this country, only one-fifth of such staff have those qualifications; the others are less well qualified than those in these other settings, but they are working with far less vulnerable young people. I am sure that we accept that many of these incidents could be avoided if staff were given the right professional framework. It is to do with managing relationships with the young people, the expertise of the staff and the way in which they are supported.
We also know that, historically, the turnover of staff in secure training centres has been high. I hope that that is now beginning to improve, but what my noble friend Lady Stern said about Oakhill suggests that that is not the case. When there is a high turnover in those settings, expertise and experience cannot accrue and be passed on to enable officers to respond in the most constructive way.
I draw the Minister’s attention to the welcome proposals in the White Paper, Care Matters: Time for Change, including those on residential care, which emphasise a more pedagogic approach and contain some thinking that would be relevant to any consideration of how the situation might be improved. For instance, will the Minister look at the supported supervision of officers in secure training centres, where they are given time on a regular basis to reflect on the work with their supervisor? He might wish to contact the National Centre for Excellence in Residential Child Care, based at the National Children’s Bureau, where there is a great deal of expertise in terms of best practice in residential work with young people. I hope that we can move towards a far better professional framework for officers in these settings.
My Lords, as has been said, the material that we have had sent to us has been frankly horrendous to read. The evidence is so considerable that we must all be waiting to hear reassurance from the Minister in his new role, to which we welcome him. I hope that he will consider that these methods of restraining children can be done away with. I agree with the noble Lord, Lord Dearing, that that aspect needs looking at very closely.
We have heard again and again that there is far too much use of this kind of restraint. It cannot be justified, even as a last resort. Whether it is justified at all is highly doubtful. As a chairman of a juvenile court for over 20 years, I know just how vulnerable so many of these children are. This is clearly not the right way to treat them. It is interesting, too, that so many girls have shown up as being subjected to this form of treatment. One wonders what sort of upbringing they have had and how vulnerable their whole background has been.
Some of the new ideas that we have heard about smaller centres, where a completely new approach is taken, must surely be the right direction to go in. One thinks again of the Corston report, which talked about smaller units nearer children’s homes when dealing with women prisoners. I wish that we had had time to discuss that in the recent end-to-end offender Bill.
I am not going to say any more. I hope that the Minister will be reassuring. The noble Lord, Lord Carlile, with all the work that he has done in this field, deserves to be given a very clear answer about a new way forward.
My Lords, a while ago in Grand Committee, the noble Earl, Lord Listowel, and I were talking about the impact of Section 9 on the children of destitute asylum seekers. Now here we are in the main Chamber, talking about the impact of some of the measures affecting children in our secure training centres.
I listened carefully to the arguments advanced by the noble Lord, Lord Warner. I shall put my side and explain what I think are the problems. There are two central issues regarding the statutory instrument. The first is whether physical restraint should be used against children to reinforce staff instructions in circumstances that do not involve the risk of harm to people, damage to property or escape. The statutory instrument would allow the use of physical restraint when none of those issues applied, for reasons of “good order and discipline”.
The second issue is whether techniques involving the deliberate infliction of pain to the nose, ribs or thumb should be used in circumstances where none of those risks applies. The statutory instrument would also allow that to happen. The Government argue that staff should be able to use physical restraint as a last resort to enforce staff instructions in some circumstances. To reassure their critics, they point to the Youth Justice Board’s code of practice, which says at paragraph 10.4:
“Restrictive physical interventions must not be used as a punishment or merely to secure compliance with staff instructions”.
However, the code of practice does not have statutory force. The statutory instrument does, and its phrasing would allow the use of restraint merely to secure compliance with staff instructions. It would legalise the use of restraint to ensure “good order and discipline” without any further definition or restriction of the scope of that phrase.
In a Written Ministerial Statement in another place, Bridget Prentice MP stated:
“We would not anticipate that a refusal to comply with an instruction alone would constitute a breach of good order and discipline. However, where the circumstances of the refusal are such that the refusal to comply with an instruction has wider implications for the safe running of the centre, undermining the general authority of the staff or putting safety or security at risk in some other way, then a genuine concern about good order and discipline may arise”.—[Official Report, Commons, 21/6/07; col. 113WS.]
However, none of that is spelled out in the statutory instrument, which simply legitimises the use of restraint to ensure good order and discipline. Even if the Government’s view as reflected in that Statement were incorporated into the statutory instrument, it includes the phrase,
“undermining the general authority of the staff”,
which could be used to justify the use of force in just about any situation in which a young person refused to obey an instruction.
In a stakeholder briefing on 27 June 2007 entitled “Restraint in Secure Training Centres”, the Youth Justice Board argued that in such circumstances a refusal to comply with staff instructions could put other young people at risk of physical harm. But those circumstances are already covered by the present law, which allows restraint to prevent injury to the young person or other people.
The briefing then goes on to argue that restraint could be justified if a young person refused to stop swearing at a teacher because of the disruption caused to the education of other young people. This is an astonishing proposition. Pupils in urban comprehensive schools not infrequently disrupt the class by swearing at teachers, but their staff are not empowered to use physical restraint techniques against them as a way of preventing disruptions.
Why does the Government’s stance on this matter cause such acute concern to so many practitioner organisations, including Nacro, of which I am the president? The first reason is that dealing with young people in ways that involve the use of force in situations where they do not pose a risk to people or property seems a disproportionate response, as spelled out by many noble Lords. Secondly, it sets an example that force is the way to resolve situations, which runs counter to the messages that we should be imparting to young offenders. Thirdly, a high proportion of young people in secure training centres have suffered physical or sexual abuse from adults in the past. Manhandling them through physical restraint can cause them extreme distress, bringing back memories of what they have suffered at abusive adults’ hands.
Let us turn to the specific issue of painful methods of restraint. The Youth Justice Board’s stakeholder briefing appears to agree with its critics that painful distraction techniques should not be used where there is no risk of harm to the young people or others. The briefing says:
“Distraction techniques in particular may only be used when a person is at risk of harm”.
However, there is nothing in the statutory instrument to restrict the use of painful techniques to these circumstances. If the Government’s stance is the same as that of the Youth Justice Board as stated in the stakeholder briefing, why do they not amend the statutory instrument to make it clear that distraction techniques cannot be used unless there is risk of harm to a person? It cannot be right to frame restraint powers in such a manner that they would legally allow practices of which the Youth Justice Board rightly says it does not approve.
A number of noble Lords have talked about Adam Rickwood. His suicide followed a few hours after he was instructed, not because he was threatening to assault someone or injure himself, but because he was refusing to go to his room. Unless the statutory instrument is withdrawn or amended, it will enshrine in law the right of staff of secure training centres to behave in the same way to other vulnerable young people with predictable and potentially tragic results.
My Lords, I support everything that the noble Lord has just said and the remarks made by the noble Lord, Lord Carlile.
The rules are defective in that they refer to “good order and discipline”. That phrase should be totally rejected because it gives the wrong impression and sends out the wrong statement about what the ethos of a training centre should be. I may be assisted by other Members of the House on this matter, but I am not aware of any criminal statute that refers to good order and discipline as such, or of any classic judgment that refers to it. I believe that the phrase laces the Queen’s regulations for all the armed services—it is none the worse for that—but it is a catch-all provision, dealing with a plethora of offences, some of them very minor indeed.
The idea that you should be allowed to use substantial force and pain as an instrument is quite wrong. Would you use pain to train a dog or horse? Why should you use pain to train a child? There will of course be circumstances when force has to be used. I accept that. But the bar should be set very high and the rules should be made absolutely clear, possibly by defining the circumstances or by giving illustrations of the sort of circumstances where such force would be justified and where one could act ejusdem generis with that list. Such a list would make it obvious that force could be used only where there was imminent danger of violent disorder or of substantial injury and so on. If we are talking about cases of minor infractions of good order and discipline—nothing more than an institutionalised system of disobedience—then most certainly this should be changed. That cannot be done in this debate tonight, but I suspect that the Minister will be able to say that, if the evidence convinces him—and I agree with noble Lords who say that the evidence is totally overwhelming—he will be prepared to replace the rules with something more humane and civilised.
My Lords, not for the first time the noble Lord, Lord Elystan-Morgan, at the end of a debate and before the winding-up process is completed, has made a devastating point. The fact of the matter is that the real implication of those words is that the rule of law will not apply in these institutions. It is quite impossible, given those words, for a court to know whether an individual applying physical restraint is acting within or outside the rule of law. That is an additional matter to which I hope that the noble Lord—to whom I, too, express the sympathy that has been extended by so many of your Lordships when making their interventions today—will address his considerable intellect.
In the context of the tragic circumstances of recent individual deaths in STCs, the text of this statutory instrument is, on the face of it, inexplicable. Of course there will be occasions when restraint will be necessary. But they should be, as so many of your Lordships have stated today, only a matter of last resort; and then only if we are clear about what the consequences of any technique used are likely to be.
In the case of Gareth Myatt, the jury expressly found that there had been an inadequate assessment of the safety of physical controls generally, and in particular an inadequate assessment of the technique of the seated double embrace used on him. They went on to say that that inadequate assessment caused or contributed to Gareth’s death. What steps have the Government taken to make such an assessment of the existing techniques used; and have such assessments been made of the techniques foreshadowed in the statutory instrument?
The noble Lord, Lord Carlile, referred to a number of officers who were too ready to use violence. No doubt there will always be individuals like that. They do not belong in the secure training centre service. But most members of the service are fundamentally decent people who use certain physical restraint techniques out of ignorance. That ignorance flows partly from a lack of training and partly from the absence of a clear set of procedures that permit physical restraint only when all other options are exhausted. I turn again to the noble Lord, Lord Elystan-Morgan, for I believe that that is fundamentally encapsulated in the remarks that he made.
There is powerful evidence that there is a woeful lack of proper training in the service. As the noble Lord, Lord Carlile, said, a high percentage of the children inclined to violence were themselves the victims of violence as young people. This is, as your Lordships are so well aware, an exceedingly complex matter, which needs managing by individuals who are well versed in the origins of child violence. What steps are the Government taking to improve the quantity and quality of training? I should also be interested to learn from the noble Lord what non-physical control techniques are being taught to handle the behaviour of individuals who are potentially capable of violence.
I must confess that, like the noble Baroness, Lady Linklater of Butterstone, I am uneasy about these children being in institutions run by the private sector, where the conduct of the supervisory staff is determined by the law of contract, not by the ethos of public service. STCs ought to be about making young people fit to return to society to play a constructive role. Their management ought not simply to be required to fulfil a series of contractual obligations as a response to levels of violence. I hope that the Minister can reassure your Lordships that the private sector is capable of playing the constructive role to which I refer.
More transparency—again, a matter underlined by the noble Lord, Lord Carlile—would have exposed these deep-seated problems much earlier. As it turns out, it is tragedy that has uncovered them. The Government must now develop a strategy that will transform this sombre scene so that these harrowing losses of life will not have been in vain.
My Lords, like other noble Lords, I thank the noble Lord, Lord Carlile, for the opportunity he has given us, by praying against the statutory instrument, to have a serious and sober debate on these very important issues. I am very grateful to him for his constructive approach and for the discussions that have taken place in the past week between him, my right honourable friend Mr Hanson and officials in my department. I also thank all noble Lords who have spoken in this wide-ranging and important debate.
We all have in mind the tragic deaths of Adam Rickwood and Gareth Myatt. I reassure all noble Lords that the safety of young people in custody—and custody for young people should, in my view, always be a last resort—is a priority for my department and the Youth Justice Board. The noble Baroness, Lady Linklater, described a lack of horror at these cases. I have not discovered that in my very preliminary dealings with the department and the service generally.
I visited Rainsbrook secure training centre last week, where I talked to young people and the staff. I found it very informative and, indeed, moving. I have also read the noble Lord’s report, which was very well written and clearly expressed. The right reverend Prelate talked about the essential requirement for training in the training centre. I was impressed with the education centre there and the outcomes that I hope it will produce for those young people.
I understand fully the concerns that noble Lords have expressed but I do not believe that this statutory instrument will turn back the clock. I know that the right reverend Prelate the Bishop of Worcester did not like the word “clarification” and thought that it had an Orwellian aspect, but the amendment to Rule 38 is being introduced because, in terms of the inquest, there is a lack of clarity. That is what the SI is designed to do—nothing more. It is not an attempt to put back the clock or open the door to the inappropriate use of restraint.
The primary legislation governing the establishment and running of secure training centres is the Criminal Justice and Public Order Act 1994. I was rather surprised when the noble Lord, Lord Kingsland, referred to the use of the private sector, and I shall come back to that in a moment. He will recall that the Act provides for the centres to be run by either the public or the private sector and makes special provision for any centres that are contracted out. All four of the centres that have so far been established are contracted out.
Section 9 of the Act is headed:
“Powers and duties of custody officers employed at contracted out secure training centres”.
Subsections (1) and (2) deal with officers’ powers to search offenders or other persons at the centre. Subsection (3) lists the duties of officers as respects offenders detained in the centre. These are: to prevent their escape from lawful custody; to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts; to ensure good order and discipline on their part; and to attend to their well-being. So the phrase,
“to ensure good order and discipline”
is already on the statute book and was placed there in relation to this aspect in the 1994 Act.
However, the question of clarification arises because in the Secure Training Centre Rules 1998, in their original form, Rule 38, which deals with the use of physical constraint, does not include ensuring good order and discipline as one of the purposes for which physical restraint may be used.
My Lords, the words appear in the statute; I was quite wrong in saying that I could not think of any such use previously, but it follows two other matters in a list of three. Is it the Minister’s view that, as a matter of law, that third category of good order and discipline is then ejusdem generis—in other words, to be construed as being of the same family as the other two categories, which are, let us face it, rather serious in any event? It is a very important matter.
My Lords, it appears in the list, as the noble Lord says, and, as far as I know, there is no prioritisation in that list. My understanding is that “good order and discipline” is also to be found in the young offender institution rules and the prison rules. I also understand the phrase is of long standing. I have not come across, nor been advised of, suggestions that a court would not be properly able to interpret it.
Rule 38 of the Secure Training Centre Rules 1998 deals with the use of physical restraint. It does not include ensuring good order and discipline as one of the purposes for which physical restraint may be used. The purposes listed in those rules are to prevent a trainee escaping from custody, injuring himself or others, damaging property or inciting another trainee to injure himself or others or to damage property. Clarification is required on how Rule 38 relates to Section 9 of the 1994 Act. It has clearly been the subject of some confusion. That became apparent at the recent inquest into the tragic death of Adam Rickwood. The coroner highlighted the need urgently to clarify the interrelationship. That is why this statutory instrument has been laid. It adds to the purposes for which physical restraint may be used, set out in Rule 38, that of ensuring good order and discipline. It does the same to Rule 36, which concerns removal from association. Before this change, we consulted the Youth Justice Board and the directors of secure training centres. They were firmly of the view that those powers are essential if centres are to be run safely. I shall come back to that point in a moment.
I clearly understand the concerns raised here and in representations that my department and, I understand, the Youth Justice Board have received that “good order and discipline” is a catch-all expression that will enable custody officers to use physical restraint techniques on any young person who refuses to follow an instruction by a member of staff. While I completely understand why noble Lords are concerned, that is not the case. A threat to good order and discipline is more than a simple refusal to follow an instruction from a member of staff. It must involve behaviour which puts the safe running of the wider establishment at risk. I emphasise to the right reverend Prelate that the power relating to good order and discipline is not catch-all. The right reverend Prelate said also, as did my noble friend Lord Warner, that some of the young people who are resident in secure training centres are very troubled and can sometimes be a danger to themselves and others. I do not think that there is any disagreement among noble Lords about that; nor is there any disagreement, I suspect, that it is critical that staff maintain effective control so that everyone in the establishment is kept safe. We have already heard about the duty of care, and I echo those remarks. I fully accept also that, in managing young people’s behaviour in custody, members of staff must seek to influence them through their own example and leadership, and enlist their willing co-operation. That is stated in Rule 31. Equally, however, if good order and discipline are threatened, physical restraint may on occasion be necessary as a last resort.
My noble friend Lord Warner said that many staff do an excellent job. It is right that we acknowledge that. It is important to understand, as I always do, that these are challenging situations in which to work. We must acknowledge also that many of the staff who work in those institutions are incredibly dedicated. Equally, however, none of us must be naive. My noble friend Lord Warner made it clear that there will be rogues, and we have to have safeguards in place to ensure that, as far as is humanly possible, they are contained and removed.
I again make it clear to noble Lords that Section 9 of the 1994 Act states that reasonable force may be used, but only where necessary. That qualification is very important. Equally important is the stipulation in Rule 38 that physical restraint may be used only where no alternative method is available. It is clear in both the Act and the rules, therefore, that physical restraint must be used only as a last resort, when there is no alternative available or other options have been exhausted.
In discussions with me in the past few days, the noble Lord, Lord Carlile, suggested that it might be helpful if the actual words “as a last resort” were included in the rules. Ministers have asked for advice on that. The advice that we have received is that the current wording,
“only where no alternative method … is available”,
carries the same meaning as “as a last resort”.
The code of practice is very important. I know that the noble Lord, Lord Kingsland, expressed doubts about whether a contractual relationship between a public body and a private sector provider is appropriate and sufficient. He will know that I come from the healthcare field. It is not an unusual phenomenon for there to be a contract between a public sector commissioner and a private sector provider. Provided that the law is clear and understood, that the private sector provider is capable of providing the services that are required, and that the contractual process is properly in place and adequate monitoring takes place, there is no reason why that cannot be a suitable arrangement. Clearly, the code of practice that informs the contracting process, developed by the Youth Justice Board, is very important. The code was introduced last year after extensive consultation. It outlines very clearly the Government’s and the Youth Justice Board’s policy on the use of restraint. I make it absolutely clear that an unjustifiable use of force in any environment is an assault, as the noble Baroness, Lady Linklater, said. The Government and the Youth Justice Board have never accepted that force may be used simply to gain compliance with staff instructions, and we never will.
Important questions were asked about the monitoring of the centres. I am the first to acknowledge that criticism was made in the inquest about the Youth Justice Board’s monitoring policy. Some noble Lords will know that the Youth Justice Board expressed regret that, for example, PCC was not reviewed before 2004. My understanding is that the board has been very active since then in promoting improvements in behaviour management. Its 2006 code of practice emphasises the strict limits on when restraint may be used.
A number of noble Lords asked what the alternatives are and how they are being developed. A range of other actions is being planned by the Youth Justice Board. They include trial and evaluation of a modified version of a control and restraint system used by the Prison Service, which emphasises de-escalation techniques, a new assessment of compliance with a code of practice, and a review of research literature on behaviour management approaches in different parts of the world. I fully understand the need for us to observe, understand and learn from methods that have been developed in other countries. The Youth Justice Board is also supporting the British Institute of Learning Disabilities to create a tool to assess the safety, effectiveness and social validity of restraint techniques. It is piloting therapeutic crisis intervention methods, which are clearly very important. Early indications from the evaluation of a pilot at Hassockfield secure training centre are that TCI has had a positive effect and that levels of restraint have been reduced. The board is also planning to convene a panel comprised of experts from the relevant medical fields to review the medical safety of PCC techniques and, as was mentioned in our debate, it is piloting restorative justice approaches to managing difficult behaviour.
I acknowledge what the noble Lord, Lord Carlile, said about consultation. The Explanatory Note is short. However, I would refer noble Lords also to the Explanatory Memorandum. I pay tribute to the work of the Merits Committee. Following its request to the Government, Explanatory Memoranda are now produced for all statutory instruments, not just affirmative ones. It is fair to say that the Explanatory Memorandum gives more clues to what the statutory instrument is all about.
I know that there is concern about the number of times that distraction techniques are used routinely on young people in secure training centres. The noble Baroness, Lady Murphy, referred to the 3,036 occasions when physical restraint was used in secure training centres between November 2005 and October 2006. That figure includes both restrictive holds and distraction techniques. The latter were used 169 times from February 2006 to March 2007. We want to see a reduction in their use, and that is why we have put in place the code of practice for behaviour management. Yet the level of restraint also reflects the scale of the challenge posed by some of these vulnerable young people and the problems faced by staff in dealing with them.
The noble Baroness, Lady Murphy, asked about the difference in figures between centres and also between secure training centres, secure homes and young offender institutions. Clearly it is important that these differences are monitored to understand what lies behind them. I am happy to write to noble Lords about our analysis of the monitoring, but my understanding is that monitoring shows that the level of restraint rises when particularly challenging children who are seriously disturbed are placed there, wherever the setting. I also understand, and the noble Baroness hinted at this, that secure training centres have not used the same counting rules for restraint. The Youth Justice Board has recently clarified the counting rules. I will write to noble Lords about that.
Noble Lords asked about the training of custody officers. I accept that it is important. There is an initial training programme, there are refresher programmes, and staff required to use physical restraint or to instruct others in its use are trained by accredited instructors, approved by the authority during the initial training programme. In response to the noble Lords, Lord Kingsland and Lord Dholakia, the noble Baroness, Lady Linklater, and the noble Earl, Lord Listowel, there can be no complacency about the training programmes. We must continually look at and refresh them. I accept the point made by the noble Earl, Lord Listowel, about the supervision and structure, because training and the work of individual custody officers does not happen within a vacuum. In the end, we must come back to leadership, which is so critical in all these areas.
I understand the comments about specific centres. The inspection reports are of course very detailed in that respect. It is important that we build on them. On the comments about Oakhill made by the noble Baroness, Lady Stern, she will know that a new director has moved into that centre in the last couple of weeks. We will be monitoring the situation there carefully.
We have heard some negative remarks about secure training centres, and that is fair comment; yet there are also some good outcomes, and we must acknowledge that for the sake both of the young people there and of the staff. I met a young man at the centre I visited last week who had been through custody a number of times. As a result of the fantastic education he had been given, he was now going back to his community and a school place had been allocated. It is important that I acknowledge the good work that has been undertaken, particularly the emphasis on education and the record in raising the levels of literacy and numeracy, often from a low base.
On the power of a Prayer, this has been a wide-ranging and important debate. There are clearly issues much wider than this statutory instrument, relating to restraint and extending beyond secure training centres to young offender institutions and secure children’s homes. I fully accept that we have to look at policy and practice across the board. It was announced in another place last week that we intend to set up a joint review of restraint issues with the Department for Children, Schools and Families. We took this decision after discussions with the Youth Justice Board, and we will use the review to build upon the extensive programme of work that the board has undertaken around both the specific issue of restraint and the wider issue of how best to manage the challenging behaviour of this group of young people.
This review will certainly need to look at the operational efficacy and safety of restraint methods in juvenile secure settings, including physical control in care—the system of restraint used only in secure training centres. It is likely to encompass the medical safety of the individual techniques, and it will also consider how we can ensure that there is cross-departmental knowledge-sharing on use of restraint across a range of secure settings. The details of the review will need to be worked out with other government departments and with the Youth Justice Board. Of course I will ensure that the comments of noble Lords tonight will be fed into that process of working through the detail of the review, and into the review itself.
I confirm that the review will consult widely and that it will have an independent chair. I understand that noble Lords do not wish a review to be seen as simply a way of postponing decisions and responses for a long time. It is our hope that the report can be completed within about six months of the appointment of the independent chair. I hope that noble Lords will accept in good faith that we are keen to get on with this work.
On the specific question that the noble Lord raised about cross-government working and the Department for Children, Schools and Families, that department now has a joint role in relation to policy and funding for youth offending and the Youth Justice Board. How this will be discharged in practice is being worked out at the moment, since we are all new to these particular roles. Given that restraint techniques are used in secure children’s homes as well as secure training centres and young offender institutions, and that there are risks in all three settings, the involvement of the new department and my department in this particularly complex area provides an opportunity for us to look at these issues afresh.
I do not know whether the noble Lord, Lord Ramsbotham, is here. He does not seem to be, so I should not really respond to what he said. I understand that we have received the coroner’s letter, and of course any recommendations that the coroner makes will form part of the consideration of the review.
I understand the issues that my noble friend Lord Warner raised about accountability. They are important issues, and he is right that the Secretary of State is legally accountable for approving systems of restraint for use in secure training centres. That is probably one of the answers to the noble Lord, Lord Kingsland, about the arrangements regarding the use of the private sector. I suspect that that was one reason why it was placed back in the original legislation. I understand the issues raised by my noble friend and will ensure that that issue is considered within the scope of the review.
I apologise for speaking perhaps too long tonight, but I thought it important to respond in detail to this extensive and important debate.
My Lords, I had hoped that, by saying that the review would look at issues of policy and practice across the board and the operational efficacy and safety of restraint methods for juveniles, I had met the noble Lord’s point.
I have spoken for too long. I hope that noble Lords will accept that there is absolutely no complacency on my department’s part; we think that clarification is necessary. I hope that this statutory instrument will be allowed to follow its course, but the review is very important. I am grateful to noble Lords for the way in which they have approached this debate.
My Lords, I hope that I will be permitted the opportunity of a short reply to this debate. I should have congratulated the Minister earlier on his new role and I do so very genuinely. I also congratulate Sally Keeble, his honourable friend, on her contribution to the debate in another place.
The Minister should not apologise for one moment for the length of his reply. His reply has dignified this debate by being so full and addressing the concerns of all Members of the House. This has been a detailed, informed, sombre and instructive debate that should be required reading for all those involved in the management of secure training centres. This was the House of Lords at its best, with contributions from the church, the law, psychiatry, the criminal justice system and the youth justice system, as well as experts in social policy, children’s issues, the penal system, senior judicial experience, the voluntary sector and even Scotland.
We have heard the contribution of two right reverend Prelates. I hope that the right reverend Prelate the Bishop of Norwich will forgive me if I focus for one moment on his noble friend the right reverend Prelate the Bishop of Worcester, who is retiring shortly. We had a typical contribution from the right reverend Prelate the Bishop of Worcester tonight, and we shall miss in this House what I hope I shall be forgiven for calling his combination of a Socratic style and Aquinian principle. He can make what he wishes of that.
A number of very important issues have been raised about staffing levels. That was a point made by the noble Lord, Lord Warner. On these issues, I would never start from the same starting gate as the noble Lord, but I was very grateful for his contribution.
The noble Baroness, Lady Linklater, made a very powerful point that must be repeated again and again. We are talking about children—and maybe we can learn something about how children who commit crime are dealt with in Scotland in a rather more constructive way.
We heard brief and eloquent arguments from the noble Lord, Lord Dearing, the noble Baroness, Lady Murphy, and the right reverend Prelate the Bishop of Norwich about keeping the numbers down, the importance of recording events and always presuming that there should be no violence. The noble Lord, Lord Ramsbotham, rightly emphasised the importance of the views of His Honour Judge Pollard, which were given today and should heavily inform the debate.
The noble Earl, Lord Listowel, whose contributions on children’s matters we always regard as important in this House, along with the noble Lord, Lord Kingsland, emphasised the need for proper professional qualifications, experience and expertise among those working in secure training centres—which, as the noble Baroness, Lady Howe, and the noble Lord, Lord Dholakia, emphasised, should be smaller.
As to the Minister’s response, I am very grateful for that. However, I do not resile from my point about the Explanatory Note, because I took the trouble today to look on the Government’s excellent new statute law website. The Explanatory Note appears on the website but not the Explanatory Memorandum. If people are to understand what is meant by the legislation, please can the Government extend the website so that the manager of a secure training centre can see the Explanatory Memorandum as well as the Explanatory Note?
The Minister obviously listened with great care to all that was said during the debate, but he did not quite answer the point made by the noble Lord, Lord Elystan-Morgan, perhaps because he couched it in a fine Welsh-Latin phrase, ejusdem generis. But it is important that we all realise that good order and discipline is not a phrase with a separate meaning and it is not a “safety valve”, to adopt the language used about another statute. It is simply part of the whole definition, which does not in any way dilute the last-resort principle. I am grateful to the noble Lord for making that point.
The Minister has made considerable and generous concessions to the concern expressed in the debate, which I have expressed to him and his right honourable friend in the past few days. He has placed an emphasis on de-escalation techniques, which are of the essence of this argument. He has provided a clarity of statement, which I can tell him will be pored over and used by all those who deal with legal cases involving violence used in secure training centres. I welcome his confirmation that the scope of the inquiry will be wide, its timescale short and that it will have a fully independent chair. I take it on trust that that inquiry will be appointed very soon indeed.
The Minister knows that I and others will return to this subject assiduously. I was reluctant not to divide the House on this subject but, having considered what the Minister said and how he said it, I have concluded that we should take his statement in its full constructive spirit and that in the circumstances—and just—it would be wrong to ask for the opinion of the House on this matter. I know that he is now the Minister responsible for legal aid and I hope that he will show the same constructive spirit when soon he is invited, as he will be, to the Old Bailey Bar Mess, to talk to barristers about recent unilateral changes made by the Government in the legal aid fee system. I hope that it will not be regarded by him merely as an initiation rite but as an opportunity for the sort of constructive dialogue that we have had tonight.
I thank all noble Lords for their contributions to this important debate. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.