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Police, Crime, Sentencing and Courts Bill

Volume 816: debated on Wednesday 17 November 2021

Committee (9th Day)

Relevant documents: 1st, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

Clause 132: Youth remand

Amendment 219B

Moved by

219B: Clause 132, page 124, line 35, at end insert—

“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””Member’s explanatory statement

This amendment seeks to introduce centralised monitoring of the youth remand decision-making process.

Before we come to this important group of amendments, I have one housekeeping matter. As noble Lords are aware, the amendments have been marshalled according to the instruction of 13 October 2021, and that puts Clauses 55 to 61 towards the end of our Committee stage. If noble Lords who have the ninth Marshalled List of amendments go to Amendment 319A, they will see a number of pages of government amendments which, in effect, introduce a range of new offences and new powers for the state. In effect, they introduce the offences of locking on and of being equipped for locking on, and they change the law on wilful obstruction of the highway and on obstruction of major transport works.

This is not for the noble Lord, Lord Wolfson, but it would be convenient if the Government, at some stage during Committee, indicated how they intend to deal with the pages and pages of amendments. A whole new structure of offences is being introduced in Committee in the Lords without the stages in the Commons having been gone through and without a Second Reading on those issues. This is not for now, because I have given no warning of it, but it will take as long as it takes to get an answer as to whether special provisions will be made, whether the Government intend to stop the Committee and have a Second Reading, or whatever. Whatever the plans are in relation to this, we on this side of the House—indeed, I think the whole House—would like to know, so we can think about how we deal with it, because it is an important issue.

The group we are about to deal with concerns youth justice. We are into a new part of the Bill and part of this group will raise issues about the age of criminal responsibility. The only reason I am starting is because my Amendment 219B requires the centralised monitoring of court decisions to impose youth custodial remands. As noble Lords will know, a whole new regime of remanding people aged 10 to 17 in custody was introduced by the LASPO Act in 2012. It gives rise to very practical difficulties throughout the country in relation to finding appropriate places to remand people of that age in what is, in effect, detention of some sort. There is no centralised monitoring.

In responding to this amendment, will the Minister indicate what the current arrangements are for monitoring this nationally, and what is the Government’s proposal, if any, for making sure that national statistics are regularly available? Without such statistics, it is difficult to have an informed debate about what additional provision is required, save to say that the experience on the ground is that there needs to be more proper provision over a range of options. I beg to move.

My Lords, I shall speak to Amendment 220. I feel very strongly about the issue of the age of responsibility of children. I first raised it in this House in 2006, when a Labour Government dismissed it out of hand. I was for 35 years a family judge dealing with children; I happen also to have brought up three children, and I care about children. In 2006, what is now known about young children and the maturation of their brains was not particularly well known, but a great deal of evidence has now come forward. It was looked at by the Select Committee on Justice in the other place in November of last year.

Psychiatrists gave evidence, in particular about the fact that young children aged 10—and, for goodness’ sake, a child of 10 is young—do not really mature until considerably later. We have only to look at what is happening across Europe as an example. Scotland has raised the age to 12. The age of responsibility across Europe is either 12 or, in more places, 14. We remain at 10. I think it is probably because successive Governments, on both sides of this House, are afraid of what the public will say.

Let me give the House an example: the appalling crime of the killing of Jamie Bulger. The two children were 10. One of the newspapers had a cut-out asking readers to send in the coupon if they thought that the children should stay in prison for the rest of their lives; 84,000 people in this country signed it, to say that 10 year-olds should live the rest of their lives in prison.

Four or five years ago, the four Children’s Commissioners of the United Kingdom wrote a joint report saying that this country was the most punitive against children of any country in Europe—and my goodness me, those 84,000 people give one a pretty good idea. But we really have to move on. There is so much more evidence as to what can be understood about the maturation of the brains of children.

It is interesting that, so far—and certainly at the Select Committee chaired by Sir Robert Neill MP—the Minister, Lucy Frazer MP, has said she thinks that there is no likelihood of the Government changing their view that the age of responsibility should remain at 10. The world has moved on, but the Government have not. The Government appear to have shut their ears to what is now so blindingly obvious. I ask the Government just to open their ears a little, and at least look at the research and come back to both Houses and do what is the obvious—I use the word “obvious” again—and raise the age to 12.

As the noble Lord, Lord Dholakia, is not present, it falls on me to urge the Government to accept Amendment 220.

My Lords, I present the apologies of my noble friend Lord Dholakia, who is unwell and in some considerable pain. He is therefore not able to attend your Lordships’ House. On his behalf, I have his speech, from which I should like to read some extracts. I am sure that Members of the House of Lords will recognise, of course, that my noble friend had a Private Member’s Bill precisely on this issue, and that it passed all stages in this House. It fell because of Prorogation and therefore had no time in the House of Commons. This House has certainly made its view well known and presented it to the House of Commons. This amendment gives us an opportunity to make sure that what was decided by this House is carried forward.

My noble friend Lord Dholakia has said that, at present, in England and Wales, children are deemed to be criminally responsible from the age of 10, and this provision was last amended more than 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—which includes serious, violent and sexual crimes but can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.

The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006, the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. In Scotland, where the age of criminal responsibility was particularly low, at eight, legislation in 2010 amended it to age 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In Holland, it is 12; in France, it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania, it is 14. In most other European countries, it ranges between 14 and 18. Across Europe the average age is 14.

The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:

“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.”

In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable.

Taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend; it would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings rather than as a custodial punishment imposed in criminal proceedings.

In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:

“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process”.

The evidence internationally is overwhelming, and from the United Kingdom and from this House. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal College of Psychiatrists has expressed the view, based on evidence, that our age of criminal responsibility is too low.

While a 10 year-old might know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year- old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.

The age of criminal responsibility is an anomalous exception. In relation to the age of consent for sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law but take a diametrically opposite approach when it comes to criminal responsibility. The illogicality of our current law is increasingly recognised. The Law Commission concluded last year that the age of criminal responsibility is not founded on any logical or principled basis.

The fact that the numbers involved are relatively small is a strong argument for this amendment. It means that it will not be a huge burden on resources to make alternative provisions through welfare interventions; nor would dealing with these children through non-criminal processes put the public at risk.

Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. While the numbers are low, the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than a criminal justice one, would be small, and the positive benefits for them and for wider society considerable.

Even though some changes have been made to court processes involving children, it remains true that exposing young children to a criminal trial is no way to achieve justice. This is a short amendment but its recommendation, if implemented, will change the shape of our criminal justice system for our children.

My Lords, I strongly support this amendment, as I have supported the PMBs on this from the noble Lord, Lord Dholakia, over recent years. The reasons for raising the age by the—goodness knows— modest enough margin of two years, from 10 to 12, are cumulative and compelling. If there is any objection to this amendment, it is that it does not go far enough, but I do not make that objection.

I have three reasons for supporting this. First, a 10 year-old’s mental capacities are not comparable to those of an older adolescent or adult. The noble and learned Baroness, Lady Butler-Sloss, has made these points about maturation, and I will not repeat them.

Secondly, criminalising these youngsters while they are still developing their identities and character and growing socially and emotionally is deeply damaging to their self-esteem and future prospects. Brand a child of 10 or 11 a criminal and that is how he will come to see and identify himself, and so he will behave in future. The subsequent criminal records of those who have been thus branded bear this out. Their records attest to it.

Thirdly, whatever their wrongdoing and however grave—to call it criminal is of course to beg the question—they will be dealt with in the same basic way whether they are convicted under the criminal justice system or dealt with through corrective welfare processes. If they need to be detained securely, they will be. The necessary measures can be imposed whichever route is taken, whether they are prosecuted as criminals or treated as however gravely miscreant children requiring correction. The public will not suffer if in future they are recognised as children who have done something dreadfully wrong rather than wicked criminals. On the contrary, the public will benefit. These children are more likely to lead law-abiding lives in future if we change our system at last.

It is high time to banish the long shadow of the tragic Bulger case—it has already been mentioned today—that, alas, is still cast and obscures the realities and common sense on this issue.

My Lords, I also rise to support Amendment 220. When I was chairman of the Commission on Justice in Wales, we looked at this issue and had extensive evidence, including from the Children’s Commissioner for Wales. Without hesitation, we recommended that, were it free to do so, Wales should raise the age of criminal responsibility to 12, consistent with United Nations obligations it has untaken.

I agree completely with what has been said about the profound changes in the understanding of mental capacity that have taken place over the last 10 years in particular. I urge the Government not to delay any further a change to make our country no longer a laggard on this issue but one that is at least catching up. There are problems, such as knife crime, but the age of criminal responsibility is not the way to deal with them.

My Lords, it is very good to see the Committee refreshed and to have the opportunity to meet earlier in the day, so I thank the powers-that-be for making this possible.

I hope also that noble Lords who participated in proceedings on Monday night did not come to enjoy the type of correspondence that I have had in the hours and days that followed. I say that not out of fear or any sense of wanting to wallow in victimhood, but just to suggest that the toxicity of some of the debates that this Committee has to navigate around the Bill and matters in general is far from one-sided.

Moving on to this group and the issue of criminal responsibility in particular, I signed both the amendments on this. The noble Baroness, Lady Bennett of Manor Castle—I had a senior moment there and could not remember her name first thing this morning—put her amendment down first, and that is why I signed that with alacrity, but I want to be clear that I much prefer Amendment 220. She is not able to be here today, and I know that her noble friend Lady Jones of Moulsecoomb will represent her ably in a moment. I suspect that she would not necessarily disagree with me. I do not know if it is the time for reviews and so on, though they can happen.

Personally, I would like to see the age of responsibility be even higher than 12, given the data now available about the maturing of children and young people’s brains and so on, and given where we are in the world and what an outlier we are beginning to be even in the United Kingdom, let alone Europe. I would prefer the age to be 14 or 15, but we must bag 12 immediately.

I pay tribute to the noble Lord, Lord Dholakia, who is not able to be here, and wish him a speedy and full recovery. I also pay tribute to the noble and learned Baroness, Lady Butler-Sloss, who, like him, has been pushing this agenda in very difficult times over so many years. It is an absolute honour to have my name on this amendment paper next to them both. I remember them pushing this when I was a young lawyer in the Home Office in 1996 and 1997. I pick those dates to show the bipartisan nature of the problem as well as, I hope, the solution.

I am sorry that my noble friend Lord Blunkett is not in the Committee at the moment, but I would like to see the kind of statesmanship that he demonstrated on Monday applied by all noble Lords to this debate, because it is nothing short of barbaric for us to treat 10 year-olds as having criminal responsibility—and I try to use language carefully. We are such an outlier. This is so wrong.

I know we have had this law-and-order arms race for many years, but I feel the beginnings of an opportunity in this Committee to de-escalate it. Where better to begin? Perhaps we began on Monday in the context of the IPP anomaly that remains. We must certainly continue now with children.

The question that has been put to me, including by noble friends, is, “But what would you do about these bizarre cases of children who kill children, such as the tragic Bulger case?” The answer is to treat them as the child protection issue that they are. Some children, for whatever reason—quite possibly to do with the way in which they have been treated at home and elsewhere—are dangerous. We are not talking about them being allowed to continue in their current arrangements. We are talking about treating such cases in the appropriate way—as a child protection issue. We have the means and mechanisms to do this without throwing people away—criminalising them—at an age when they are really not capable of criminal responsibility.

I have made the point about the bipartisan nature of the problem. It is not for me to speak for my noble friends or, indeed, for noble Lords opposite who have been dealing with appalling, very difficult tabloid campaigns over the years. I am afraid that, at times, those have toxified any hope of rational debate about matters as serious as law and order. But I do think there is an opportunity to do better now. I wait on tenterhooks to hear from my noble and learned friend Lord Falconer. If he offers a bipartisan hand in relation to the age of criminal responsibility for children, I hope that the Minister will take that hand and shake it off. This is such an important issue, not just for the jurisdiction of England and Wales but to send a signal to other jurisdictions elsewhere.

I do not often think we should learn lessons on incarceration and criminal policy from the United States. There is a range of ages across different states, and some are really quite young. We could begin a conversation with people elsewhere in the common-law world by moving in this right direction. Jurisdictions such as India and some of the states in the US are not in good shape on this issue. This could be global Britain showing a bit of leadership by putting our own house in order first.

So, if there is to be a commission, by all means let it explore broader issues around youth justice, including the possibility of raising the age higher still—to 14 or 15. For now, in this Committee on this Bill, I say, “Let’s go for 12 as a bare minimum. Bag it now. Bag it on Report”. If noble Lords—in particular the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, when he has recovered—seek to push an amendment on Report around 12, I shall certainly support them.

The noble Lord, Lord Sandhurst, has tabled an amendment to the amendment from the noble Baroness, Lady Bennett, about a review. I thank him for trying to help us navigate the kinds of issues that we discussed on Monday. I will say no more about that. I understand what he is trying to do. But that is obviously a probing amendment. As I said at the beginning of my remarks, I much prefer the formulation from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, which was so ably, eloquently, bravely and wonderfully endorsed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

My Lords, I rise to speak in place of my noble friend Lady Bennett, who has tabled Amendment 221. As the noble Baroness, Lady Chakrabarti, said, it is perhaps a softer option that your Lordships might find acceptable.

I strongly support the amendment in the name of the noble Lord, Lord Dholakia, and the noble and learned Baroness, Lady Butler-Sloss. The only qualm I have about Amendment 220 is that it sets the age at 12 and not 14. Quite honestly, we treat our children in the criminal justice system absolutely abysmally, with demonstrably disastrous results and a recidivism rate of 40% within a year. This demonstrates that the courts are not working to address the issue of these children. As we have already heard, the Children’s Commissioner has described the youth justice system as “chaotic and dysfunctional”, and the children caught up in it are disproportionately from ethnic minority communities.

We are world leading in the awful way in which we treat children. At 10, we have the lowest age in Europe—far below the suggestion from the UN Committee on the Rights of the Child of a minimum appropriate age of 14. That is the average across European countries, but even China and Russia—where the UK rightly often has cause to point out human rights abuses—have higher ages of criminal responsibility than we do. And we do not have far to look—we can go to Scotland to see exactly what happens there. There the age is 12, and I would prefer it to be 14.

This is not a moral question but a scientific one. Children’s brains do not develop as quickly as people might think. Children below the age of 14 are still developing the capacity for abstract reasoning. Their frontal cortex is still developing; therefore, they are unlikely to understand the impact of their actions. I think there is some political will in Westminster to take this evidence on board and, to use a phrase so loved by the Government, “level up” our youth justice legislation. In 2020, the Justice Committee recommended that the Ministry of Justice review the minimum age of criminal responsibility. Unfortunately, the Government seem to have chosen once again to renew their ideological commitment to being tough on law and on youth crime, even when it is committed by children. This is not an acceptable status quo either on human rights or on scientific grounds. Children are being failed by antiquated government standards. This is an outrage, and reform is needed.

If the Government cannot accept Amendment 220—which they absolutely should—Amendment 221, in the name of my noble friend Lady Bennett, might be a soft option. Both she and I hate putting softer options to the Government, but, in this case, it might work. It would ensure a legally binding commitment on the UK Government to at least consider whether our abnormally low age of criminal responsibility is tenable, given international norms and expert opinion. My noble friend Lady Bennett would, of course, be happy to discuss a revised text for Report. Personally, I would tough it out and potentially vote for Amendment 220 and for our Amendment 221.

My Lords, I apologise to the noble Baroness who has just spoken. It is a pleasure, on this occasion at least, to follow her. I do not necessarily agree with some of the language she used. I do not feel a sense of outrage about this issue. I feel shame and sadness and I agree strongly with the speech of my noble and learned friend Lady Butler-Sloss, and other noble Lords who have spoken on this issue.

The noble Baroness, Lady Jones, used the term “outlier”. That is what I had scribbled down on the piece of paper in front of me. We are the outliers on this. As the noble Baroness said, in Russia the age of criminal responsibility is much higher. Indeed, the general age of criminal responsibility there is 16, with 14 for exceptionally serious offences. I have visited a number of countries in central and eastern Europe and looked at the way in which young children who have committed serious offences are dealt with, and I do not notice a higher level of disorder in a single one of these countries. I do not know any country with a higher age of criminal responsibility in which children roam the streets committing crime to a greater extent than—very occasionally, fortunately—happens here, and I can see absolutely no empirical reason for turning down this amendment.

I have also observed how children behave when they are sent to Crown Courts. I am happy to note that far fewer children are being dealt with in Crown Courts than used to be the case and that the Crown Prosecution Service is being much more sensitive than it used to be at one time as regards the joinder of children with adults in Crown Court trials. The CPS has recognised that, wherever it is possible, children should be dealt with in the youth court. That has led to a reduction in the number of Crown Court trials.

However, in individual cases where children as young as 10, 11 or 12 have been tried in the Crown Court, the characteristics of the case are confusion, bemusement and a lack of understanding of what is going on around them. That starts from the beginning. From the moment the word “indictment” is used, those children do not have a clue as to what is going on around them, except that they know that they are in an awful lot of trouble. That is not the fault of the judges, counsel or the solicitors, who make every possible effort to make the court accessible, not just by taking off their wigs and gowns but by changing the language they use. However, if, as I have done from time to time, one sees reports from psychologists or psychiatrists on the effect of those hearings on children, they are really worrying.

Furthermore, as others have said in this Committee debate, there are other measures that are used. All over Europe, there are other methods that are used. They are, to an extent, punitive where appropriate. They are, to an extent, kind where appropriate. They are child protection measures, as the noble Baroness, Lady Chakrabarti, said, which are used for the benefit not just of the child and the victims of whatever crime has been committed but of society as a whole. Surely our focus should be on producing decent citizens when they become adults. We will, no doubt, turn to that theme later in other amendments when we talk about the education of children in custody.

I say to the Minister who will reply that the responsibility of Ministers dealing with this sort of debate is to specify what gain there is, if any, by having such a low age of criminal responsibility. I think they will struggle.

My Lords, perhaps I may begin by saying that I support Amendment 220. I endorse it completely and have nothing further to say on it. Noble Lords have spoken with great eloquence and force. As the noble Baroness, Lady Chakrabarti, has explained, my Amendment 221ZA, is a probing amendment designed to correct the terms of a subsection in Amendment 221 in case that amendment goes forward and the Government are interested. Let me explain.

I should say at once that Amendment 221 is, in principle, good. If accepted, it would require the Government to carry out a review of the age of criminal responsibility. I have no argument with that whatever. The issue that I raise is with the list of factors to be considered by any such review and, in particular, the use of the word “gender”. The right word there should be “sex”. The requirement in Amendment 221 is that the review should take into account certain factors. It can take other factors into account, but the following are mandatory:

“age, gender and ethnic background”.

My focus is on gender. Those noble Lords who sat through the important debate on Monday night will have heard lengthy discussion of those terms and their use in legislation. I will come back to that.

When I drafted my amendment rather hurriedly on the Thursday, I focused on the terms in the Equality Act. Why I did so will become obvious in a moment. I used too many words; I just lifted other factors in order to include them. I am now satisfied that the only proper course is to remove the term “gender” and substitute that with “sex and gender reassignment”. The cohort, if the review were to take place, will be those under 18 and, for the large part, those materially younger. One could call them children. Importantly, “sex” is established in statute and describes physiology. It is not a social construct. It is easily identified, and is listed and defined, as I shall explain, in the Equality Act. It should be noted that “gender” is not so defined. I say that for noble Lords who were not here on Monday or have not studied the Act in detail.

Section 11 of that Act states:

“In relation to the protected characteristic of sex … a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; … a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

There is further elaboration in Section 212, which defines “man” and “woman”—in other words, the terminology that has just been explained. It states that,

“ ‘man’ means a male of any age … ‘woman’ means a female of any age.”

There we have it all clearly defined. Sex is a physiological condition and, importantly for the purposes of a review, it is an objective fact, not someone’s opinion. It is not what someone identifies as. We are talking here about people under 18, usually those much younger. Also, we all know that sex is registered at birth. It is on the birth certificate.

In the case of a small number of people who are under 18 and may fall within the ambit of the review, there may be those to whom the term “gender assignment” will apply. They will be few, but if that does apply within the meaning of the legislation, that, too, will be a fact, not an opinion. That is because gender reassignment is also a protected characteristic under the Equality Act. Section 7(1) of that Act defines gender reassignment as follows:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”

So gender reassignment likewise refers to a physiological process and does not include mere self-identification or opinion. Lastly, in case anyone were to ask, “What about gender recognition certificates?”, they simply do not apply. One cannot have one of those if one is under 18. I say that so that everyone knows where we are.

Put simply, if there is to be such a review, the mandatory—if that is the right word—considerations should be age, sex, gender reassignment and ethnic background, but not gender. I commend this approach and await with interest the Minister’s response.

I should say briefly in the absence of the noble Baroness, Lady Bennett of Manor Castle—perhaps it is not my place to do so because it was her amendment that I signed—that I should thank the noble Lord, Lord Sandhurst. We have been using various terms in Committee, but on this occasion he must be right. If one were considering children under 18 in the context of a review of the age of criminal responsibility, it would be a glaring omission to include “gender” instead of “sex” in the legislation.

Sometimes it may be appropriate to use both terms, and I supported that position on Monday in the particular context of a different amendment about hostility towards people. What I tried to suggest, and which Twitter does not reflect, is that hostility can be towards people in broader categories than those protected under the Equality Act. I would not want someone to be subjected to violent hostility, even on grounds that are not currently in the Equality Act, because they were non-binary or whatever. That is not really the point in this context. If I may say so, the noble Lord, Lord Sandhurst, put it very well.

What is more, I hope that the noble Baroness, Lady Bennett, will forgive me for making that concession, given that this is a probing amendment and her list of factors to be considered in any review was inclusive and not closed. I hope it is helpful to respond to the noble Lord, Lord Sandhurst, in this way.

My Lords, I broadly support a rise in the age of criminal responsibility. I think the review is a good idea, and of course it should be science-based. The danger of going for 12 years, which is an improvement, is that it could be higher if only we thought about it well. I would be open-minded on whether it needs to be a matter of law or a government commitment to carry out a review.

There is just one area which I hope such a review might consider. The Bulger case is often referred to, for obvious reasons. Hard cases can make very bad law; we are aware of that. But I do think that that type of case imposes a duty on government to consider people’s concerns. There are two concerns that people might have if they lived in the area. One is where the child would live on return to society. That could be covered through care proceedings—you can control where someone lives and who they live with. The second is their occupation. If, at the age of 18, the murderers were released—as they were in the Bulger case—and wanted to go into childcare, or any of the care professions, would people be content with that? There would at least be a question about whether that would be wise. If they only have a care proceeding against them, they would be perfectly entitled not to declare what they were involved in at the age of 10. My point is not that they should be criminalised and therefore always carry that with them, but about how you manage their occupation, subsequent to their reaching an adult stage. It can be managed without criminalisation, but such a review might want to consider how that could be done most efficiently.

My Lords, I am constantly amazed by the persistence of this generally civilised country in being willing to treat children of 10 and 11 as criminally responsible.

The noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord German, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and all other noble and noble and learned Lords who have spoken have made the argument persuasively and on the basis of the scientific, social and international evidence. I say no more about the strength of the evidence.

The noble and learned Baroness, Lady Butler-Sloss, also pointed out the degree to which government inaction on this issue has been based on public prejudice and the Government’s pandering to it. Bluntly, that is moral cowardice, not leadership. Many of us find it unbelievable that, uniquely in western Europe, our children of 10 and 11 can be treated as criminals, when it is entirely clear that they lack the psychological maturity that is appropriate for any legitimate view of criminal responsibility. Why did change come successfully to Scotland and yet the Government seem unprepared to make it here?

I pay tribute to my noble friend Lord Dholakia, who has campaigned tirelessly on this issue for many years. I know he will have been most disappointed to have been unable to attend to speak today. But the House has fully recognised in this debate his commitment and his major contribution on this issue, and we will wish to send him our good wishes for a full and swift recovery.

Amendment 221A in my name and that of my noble friend Lord German has a different purpose. It is to pursue the worthwhile goal of diverting young offenders away from the criminal justice system and towards alternative methods of encouraging them to avoid offending. Youth offender teams have been established since 1998 and have as their function helping young offenders under 18 under supervision of the Youth Justice Board. Central to their function has been to establish services within their local communities to help prevent offending and reoffending. They have a wide remit that permits them to organise a range of activities in an effort to keep young people away from crime. Sometimes this involves involving young people in a form of restorative justice by bringing them into contact with their victims and helping them to organise reparation where it is thought that might help the offender and be accepted by the victims. Among their functions is to help supervise community sentences for young people. Our amendment is designed to help youth offender teams fulfil their function by diverting young people within their area away from the criminal justice system.

On the other amendments in the group, such as the amendment of the noble and learned Lord, Lord Falconer, on youth remand, we join him in seeking further information by way of a requirement for a report on the decision-making process on custodial remand. We also agree with the noble Lord, Lord Sater, in seeking a review of youth sentencing. Our Amendment 292P, calling for a royal commission on sentencing seeks a wholesale review, will include a review of the needs of young people in custody and in relation to community sentences. I look forward to debating that proposal in a later group.

But the central point of this group is to lower the age of criminal responsibility. The Government should be in no doubt that we will vote on this on Report if the case for change is not accepted by the Government. Gone is the time for review, although I note and accept the points made by the noble Lord, Lord Hogan-Howe, on what has to be dealt with when the change is made. But the evidence is in the public domain. It is clear; it is all one way. We need no review; now what we need is change, and we should do all we can to shame the other place into accepting the need for change by accepting an amendment passed by this House.

My Lords, I rise to speak briefly to Amendment 221B in my name, which is a probing amendment on the need for a review of youth sentencing. I would also like to refer to my interests as set out in the register.

I appreciate that this is a very extensive Bill, and as a former member of the Youth Justice Board and a youth magistrate I note that there has been little reference to the youth courts. It would be a real opportunity lost not to commit to undertake a review of youth sentencing, especially with the ever-evolving criminal justice landscape.

As I mentioned on Second Reading, I have several concerns relating to youth sentencing, and one in particular that I would like to refer to today, which is the unfairness in the treatment of the jurisdiction of young offenders under 18 years of age with regard to the dates of the offence and their first court appearance. Simply put, young people who commit an offence as a child but are then not brought to court before their 18th birthday through no fault of their own are treated as adults in the adult courts. However, defendants who do not get to court before their 18th birthday will go to the youth court where they will benefit from all the specialisation and expertise of the youth court, the youth court practitioners and the youth court’s specific focus on the defendant’s needs and welfare.

It should not be a postcode lottery of where you live due to multiple issues, including court scheduling, that can affect which court you end up in and therefore how you are dealt with. Reforming this now is important, so that defendants are instead dealt with according to their age at the time of the alleged offence, which would mean that youth justice principles would be followed and all defendants would be given the same opportunity and fairness in having access to the youth court services and the support that is so needed to reduce reoffending. We know that the adult court cannot offer the same specialist support as the youth court.

In February, the MP for Aylesbury, Rob Butler, introduced a 10-minute rule Bill on this issue in the other place, where he outlined how his proposals garnered a wide range of support, not only cross-party support but support from key stakeholders and organisations including the YJB, the National Association for Youth Justice and the Magistrates’ Association. There seems to be no common sense or fairness that these young people are treated so differently.

The Covid-19 pandemic has thrown up challenges and, in turn, some positive innovation in youth justice. At the same time, there remain outstanding anomalies in youth sentencing that pre-date the pandemic; I have spoken about some of those issues before in this place, and again today. All taken together, surely now is the right time to commit to a wide-ranging review and for the Government to bring forward a report. In doing so, not only can we address and meet future challenges, and keep under review the innovation we have seen, such as the use of video linking, to ensure that it results in the intended outcomes; importantly, we can also help to address the historical anomalies in the system that existed well before Covid-19.

I look forward to hearing from my noble friend the Minister and hope that he will consider this review, which I hope will help to deliver and improve outcomes in youth justice.

My Lords, I apologise to the noble Baroness for speaking before her; I did not realise that she wanted to speak. I also apologise for erroneously referring to her as the noble Lord, Lord Sater.

My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.

Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.

We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.

However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.

We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.

My Lords, I join noble Lords in wishing the noble Lord, Lord Dholakia, well and a fast recovery. He has played an important part over many years in the debate on child responsibility and the criminal responsibility age. We miss him today in this debate.

I also express my unconditional support for Amendment 221A in the names of the noble Lords, Lord Marks and Lord German, which would put pre-charge diversion schemes on a statutory basis. As the noble Lord, Lord German, said, these good schemes are present in many places; it would be a good thing if they were put on a statutory basis.

I agree with many of the points made by the noble Baroness, Lady Sater, on Amendment 221B. I will be interested to hear what the noble Lord, Lord Wolfson, says about it. I do not know whether a review of the whole sentencing position in relation to the youth court is the right answer—let us see what the Minister has to say—but the noble Baroness’s points were powerful and important, and the Government need to deal with them.

The main issue in the debate on this group is the age of criminal responsibility. The case for increasing it has been made overwhelmingly and I agree with it, particularly the point about evidence on the maturation of children and whether they should be viewed in the same category. I strongly support the view that that would increase reoffending because it would make a child see himself or herself as a criminal, which is bad for society. I was also influenced by the point that we are an outlier and that what we do with children, whether in the care system or in the criminal justice system, should not be different.

I have one big concern, however. I do not accept the characterisations of the noble Lord, Lord Marks, and the noble and learned Baroness, Lady Butler-Sloss. Both referred to the incredibly tragic Bulger case, saying that you should not give way to pressure because it does not show leadership when dealing with a case like that; the noble and learned Baroness referred to the tabloids. What happened in the Bulger case was awful and had an utterly legitimate effect on the Merseyside community. To try to dismiss that as something “got up by the tabloids” is, in my respectful view, to misunderstand utterly the significance of the event. Also, if you speak to people who were involved in the Bulger trial, you realise that it was an incredibly important trial. It lasted a month and brought to the fore a whole range of things that were troubling the community, and it also identified what had happened.

For justice to work in our country, it must to some extent reflect reasonable views about what should happen. I do not say that as a result of the Bulger trial, the age of criminal responsibility should be 10. But in considering how to deal with the age of criminal responsibility, which may well go up to 12—the evidence on that is overwhelming—you have to have a justice system that functions properly to deal with that sort of case. Otherwise, the community reacts not because they are inflamed by the tabloids, but honestly and in a normal way to what has happened.

Jamie Bulger’s parents, quite legitimately, made public what had happened and the community knew what had happened. The justice system must be able to deal with that, perhaps through some sort of intermediate proceedings; however, we do need to address this. To those noble Lords, such as the noble and learned Lord, Lord Brown, who say that it casts a long shadow, I say this: it does and it is still there, and it must be dealt with.

Subject to that, I am in favour of increasing the age of criminal responsibility from 10 to something higher. I am not as dismissive as other noble Lords of having some sort of review to deal with this. It would need to look at the issues raised by the noble Lord, Lord Hogan-Howe, which are important. Also, if you are taking 10 to 12 year-olds out of the criminal justice system, it would need to consider how to deal with the issues raised by the Bulger trial, perhaps not through criminalising but through some other process.

My Lords, the noble and learned Lord misunderstood, if I may say so, what I was saying. Of course one had to treat the Bulger case with great care. I had a part in giving what were by then two young men lifetime anonymity, so I had to learn a great deal about what went on. Of course they had to be dealt with severely but what should happen in the future, in another case, should be, under the Children Act, secure accommodation, where they could have been kept as long as if they had been criminalised. I was merely using that appalling Bulger case as an example of how 84,000 people thought that they should stay in prison for ever, until they died. My point was not to treat the Bulger case as less serious; it was unbelievably serious. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it has cast a long shadow, which continues today. The Bulger case was wrong in that the children should not have been tried in an adult criminal court. It was purely and simply to show the punitive element in this country, which had a marked effect on the noble and learned Lord’s Government. When I raised this issue in 2006, I was dismissed summarily, it being seen as quite unsuitable to raise the age from 10 to 12. That Government were without the evidence that there is today, but, for goodness’ sake, they also took the view that Lucy Frazer took to Sir Robert Neill’s committee.

My Lords, that was my fault. I was not for one moment suggesting that the noble and learned Baroness, Lady Butler-Sloss, was saying that the Bulger case did not require enormously sensitive handling, nor that she was in any way underestimating the seriousness of it. I was seeking to say that the fact that there were tabloid campaigns about it and that people were very concerned about it was absolutely legitimate. What they were asking for was not necessarily legitimate, but there was very real concern. Obviously, there must be anonymity, but if the matter is dealt with entirely in the care system, without any public element of how the law is dealing with it, then the community never gets satisfaction in relation to what is happening. By satisfaction, I mean that there must be some recognition within the justice system of the appalling nature of what has happened.

Surely the noble and learned Lord is not saying that the public aspect of this, which he describes rightly, must be dealt with by a criminal trial. Numerous other mechanisms can be used. An inquiry, for example, can ventilate all the public factors that need to be discussed without the artifices of a criminal trial for 10 year-olds.

I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.

My Lords, I associate myself with everything that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, have said. I am not sure that the noble and learned Lord, Lord Falconer, has accepted my point, which to a certain extent is the same as that made by the noble and learned Baroness, Lady Butler-Sloss, that we do not wish to reduce or minimise the importance of the Bulger case. My point is that, where publicity is as extensive as it was following that case and where the publicity seems to be directed as in the example that the noble and learned Baroness gave, producing a result where children under the age of 12 would be sent to prison for life and be treated by ordinary criminal process, which is entirely unsuitable for children of that age, the Government must show moral leadership and change the position based on the evidence, rather than taking a political view that it might be easier to duck the question when the evidence is so clear. That is the point that I invite the noble and learned Lord to take. I understand that he supports the increase in the age of criminal responsibility, but I do not hear him saying that the Government must show the leadership to do that in spite of publicity to the contrary.

I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.

My Lords, these amendments concern youth justice matters. I will address each of them in turn.

Amendment 219B, tabled by the noble and learned Lord, Lord Falconer of Thoroton, would require the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. I understand that the amendment’s purpose is to improve the scrutiny and monitoring of youth remand trends. However, that is precisely what our measures seek to achieve, as I will explain, while leaving the detail of operational processes to the various operational bodies. We think that this is the better way to do it.

The new measures will require the court to be explicit that they have considered not only the two sets of conditions but the interests and welfare of the child. Furthermore, while at the moment the court only has to explain the reason for remand in open court and specify it in the warrant and in the register, our new subsection (5)(za) requires that the court also gives the reasons in writing to the child, their legal representative and the youth offending team, which will enhance the ability of those justice partners to monitor the reasons for custodial remand.

Turning to the specific question put to me by the noble and learned Lord, Lord Falconer, on what arrangements are in place for monitoring courts’ decisions and whether statistics are readily available, as I have said, courts already state in open court their reasons for remanding the child to youth detention accommodation. That information is included on the warrant of commitment and the court register. Pronouncement cards from the Sentencing Council provide guidance to the judiciary on how to do that.

As for statistics, my department already publishes annual statistics on court outcomes on youth remand. The population on remand in the youth custody estate is published monthly. We have new IT systems being developed and, in light of those new systems, we will reconsider the best way to collect, analyse and, so far as is appropriate, publish the information that courts will now be required to provide in writing. However, it is best to leave that granular level of operational process to the entities doing the work on the ground, rather than to prescribe it in statute. Our intentions are certainly aligned. I am sure that the noble and learned Lord will appreciate the need for pragmatism in how best to achieve that.

Amendments 220, 221 and 221ZA seek to raise the age of criminal responsibility from 10 to 12 and to require the Secretary of State to complete a review of the age of criminal responsibility including, as my noble friend Lord Sandhurst explained, an assessment of the protected characteristics of children in detention, under the Equality Act. I listened very carefully to my noble friend and, I think it is fair to say, I set out the position on that in some detail on Monday. With respect, I am not going over that again. I hope I made the Government’s position clear on Monday.

I am grateful to the noble and learned Baroness, Lady Butler-Sloss for raising Amendment 220. I am aware, as she said, that she has brought this to the attention of the House on a number of previous occasions. As far as open ears are concerned, I assure the noble and learned Baroness that my ears are always open. I listened carefully to her speech and the speeches of the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Thomas of Cwmgiedd. I join other noble Lords in wishing the noble Lord, Lord Dholakia, who is absent, a speedy and full recovery.

I will set out the Government’s position on this issue. We believe that setting the age of criminal responsibility at 10 provides flexibility in dealing with children, allowing early intervention with the aim of preventing subsequent offending. Our primary objective when it comes to children, as I have made clear on previous groups, is to prevent children offending in the first place. Where there is offending, we need to provide the police and courts with effective tools to tackle it. Critically, having the age of criminal responsibility at 10 does not preclude other types of intervention—for example, diversion from the criminal justice system—where it would be a more suitable and proportionate response. To that extent, I agree with the noble Lord, Lord German, that diversion from the criminal justice system should be at the heart of how we approach children in the vast majority of cases.

When considering the most appropriate and proportionate response to offending by a young person, the maturity and needs of a child, as well as their age—to make the obvious point, a 12 year-old is not a 17 year-old—are always considered. We also consider protected characteristics in our work, as per the public sector equalities duty. This is borne out in practice. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out of court disposal. The number of children aged between 10 and 12 years in the youth justice system has fallen dramatically since 2009, and we are keen for that downward trend to continue. Since 2010, which is more than a decade ago, no 10 or 11 year-olds have received a custodial sentence.

It is, however, important—to this extent, I adopt the remarks of the noble and learned Lord, Lord Falconer of Thoroton—to ensure that, when appropriate, serious offences can be prosecuted and the public protected. The horrific Bulger case has been mentioned by a number of noble Lords and I remember it clearly. I grew up in Liverpool and it shocked my native city to the core. Whether we are talking about the Bulger case or any case involving children, even the most serious, there is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that they have their own specific needs that require a different and more tailored approach. That looks at age, so someone aged 13 is treated differently from someone aged 17 and a half. As noted by the noble Lord, Lord Carlile of Berriew, that pervades the approach of the criminal justice system to children. It is not a matter just of clothing, words or wigs; there is a fundamentally different approach tailored to dealing with children.

The Government therefore believe that the current age of criminal responsibility is appropriate and there is no need to either change or review it. Although I am always happy to discuss anything with anyone, I have to set out the Government’s policy clearly to the Committee and that there are no plans to change it. I heard the noble Lord, Lord Marks, on how we may or will approach this matter on Report, but I hope he accepts that I have set out the Government’s position with clarity.

Amendment 221A would place a statutory duty on youth offending teams to develop a pre-charge diversion scheme for children in their local area. As I have said, we agree that, wherever possible, children should be diverted from the criminal justice system into services that provide support to address their offending behaviour. Diversion is widely practised by the majority of youth offending services across England and Wales. The Youth Justice Board and the National Probation Service initiated the prevention and diversion project to help understand more clearly the effectiveness of prevention and diversion schemes. The Youth Endowment Fund is investing in diversionary activity. My department is supporting work such as the deferred prosecution pilot, called Chance 2 Change, where children complete a programme of intervention work as an alternative to being prosecuted. We believe that youth offending teams, on the ground and in partnership with local agencies, are best placed to decide the most appropriate way to divert children out of the youth justice system.

However, the decision to divert has to remain the role of the police, in consultation with the CPS and youth offending teams. Therefore, I suggest that the proposed change to the statutory obligations of youth offending teams is not necessary, given what is already happening on the ground. I urge that that amendment is also not pressed.

I come finally to Amendment 221B, in the name of my noble friend Lady Sater, which calls for an overall review of sentencing for children. I understand the amendment’s intent to ensure that youth sentencing is effective and meets the principal aim of the youth justice system to prevent offending. I will make a broad point, then turn to the specific point she raised about people who turn 18 during the process.

As I have said, the current sentencing framework provides flexibility to address the different needs and profiles of children who commit crimes. I have already explained how the current system has a range of sentences and approaches and have spoken about the youth offending teams. The genesis of the youth justice measures in this Bill is the White Paper entitled A Smarter Approach to Sentencing, where we set out our assessment of the key areas of the youth sentencing framework that could be improved. As I have said on other groups, there is evidence that community sentences can be more effective than custody at reducing reoffending. We want to give the courts more effective tools to divert children from custody, while keeping the public safe. Although there may be children who have committed serious offences for whom custody is the only appropriate option, we monitor the youth justice system on an ongoing basis to make sure it is working properly in practice.

As I understood it, the specific example that my noble friend raised was of a child who committed a crime at the age of 17, but who turned 18 before appearing in court and being sentenced. The answer to that point is to bear in mind that, although the offender is now an adult and being sentenced at 18, sentencing powers are determined by their age at the time of conviction. That therefore means that some cases, when a child turns 18 after an offence is committed but before their first appearance in court, they will be tried in an adult court, as my noble friend pointed out. However, sentencing guidelines make it clear that courts should use the sentence that would have been given at the time the offence was committed, as a starting point. In addition, the guidelines emphasise that sentencers should take an offender’s maturity and all other relevant factors into account, even after they turn 18. I invite my noble friend and other noble Lords who have put down these amendments not to press them, for the reasons I have set out.

Will the Minister deal with two points that he has not yet addressed? First, even Scotland has gone to the age of 12, and right across Europe it is at least 12 or 14. He has not dealt with why we are now, alone in Europe and in the United Kingdom, at 10. Secondly, it is contrary to the United Nations Convention on the Rights of the Child, and the Government seem to be ignoring that.

I appreciate that there is a range of ages across Europe. We are at 10; some are at 12; some are at 14; some are at other ages. I have sought to set out why we believe that 10 is the correct age, given the way that our criminal justice system deals with children. I appreciate that what I have said will not have persuaded the noble and learned Baroness, but it is not simply a question of looking at the age but at how the criminal justice system as a whole responds to very young offenders.

As far as the United Nations Convention on the Rights of the Child is concerned, Her Majesty’s Government believe that we are in compliance with our international obligations. Indeed, as the noble and learned Baroness will know, that convention was the subject of a recent Supreme Court decision on the different ways in which England—or to be more precise, the UK—and Scotland, which wants to incorporate it into domestic legislation, have applied that convention.

I thank my noble friend the Minister for his response. On the jurisdiction of under-18 year-olds, it does not address the fact that they will not get all the wraparound services and support from the youth court and youth practitioners. Furthermore, if they go to the adult court, they will still not get a referral.

I am grateful to my noble friend for the question, and for taking the time to discuss it with me in the past. Because the offender is 18 at the time of the case and of the sentence, the system has to respond to the fact that they are now adult. It may well be, in some cases, inappropriate to lump that adult in with children. Some sentences and responses that the youth court can give to children would be inappropriate for someone who is now an adult of 18. I suggest that the fact that the court starts with the sentence that would have been appropriate at the time of the offence, and then takes into account all other relevant factors, means that we deal with these cases suitably, bearing in mind the time gap before sentencing during which the offender has reached legal maturity.

My amendment was the monitoring amendment and was not the heat and burden of this debate. I beg leave to withdraw the amendment.

Amendment 219B withdrawn.

Clause 132 agreed.

Clauses 133 to 135 agreed.

Schedule 15 agreed.

Clause 136 agreed.

Schedule 16 agreed.

Clause 137 agreed.

Amendments 220 to 221 not moved.

Amendments 221A to 221B not moved.

Clause 138 agreed.

Clause 139: Secure 16 to 19 Academies

Amendment 222

Moved by

222: Clause 139, page 128, line 15, leave out “pupils” and insert “students”

Member’s explanatory statement

This amendment changes “pupils” to “students” to refer to those attending a secure 16 to 19 Academy. No difference of meaning is intended; the change is to avoid confusion arising from the fact that “pupil” is defined in the Education Acts to refer to those attending a school (and a secure 16 to 19 Academy is not a school).

My Lords, Amendments 222 and 223, which I move today on behalf of the Government, are technical amendments to Clause 139, which clarifies that 16 to 19 academies can provide secure accommodation and allows for the establishment and running of secure 16 to 19 academies to be treated as a charitable purpose. The amendments, as can be seen from the Marshalled List, are a technical tweak, and will have no practical impact on the children or young people placed in these secure academies, or on how the academies are run. They are simply there to ensure consistency with other education legislation. “Pupil” is defined in the education Acts to refer to those attending a school; 16 to 19 academies are not, in the legal sense, schools, and “student” is the standard term used in the context of such academies.

I am conscious that this group also contains amendments from the noble Lord, Lord German, on the organisations which can establish a secure school, and from the noble Lord, Lord Ponsonby of Shulbrede, on local authorities’ secure accommodation provisions. I propose, if the Committee finds it helpful, to pause my remarks now, having introduced my amendments, and allow other noble Lords to speak to those amendments, and then I will respond. I see some nodding heads. If that meets with the Committee’s approval, I will sit down, having formally moved my amendments.

I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.

Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.

While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.

It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.

My Lords, I apologise for being slightly out of turn; I will speak to Amendment 223A in my name and that of my noble friend Lord Marks, on secure accommodation and local authority provision. In December 2016, the Government committed to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation and are defined in the Bill as “secure children’s homes”.

In 2019, the Ministry of Justice contracted Oasis Charitable Trust to run its first experimental secure school, now called a secure 16 to 19 academy. As I understand it, this is due to open in late 2022, and local authorities were not permitted to tender for this contract. The Local Government Association responded to that decision in 2019, saying:

“We welcome the Government’s commitment to take forward the recommendations from Charlie Taylor’s review of the youth justice system … for secure schools to support improved outcomes for children in custody. We are, however, disappointed that councils were excluded from the opportunity to run these despite their significant expertise in youth justice and success in running SCHs.”

Noble Lords who have read and know Charlie Taylor’s review will know that his words were that local authorities were best placed because of the range of services that they provide and because they had experience of both education and secure schools, and, of course, the social services that manage and support young people. In response to the LGA’s point, the Government said:

“It is the policy of the government that academy trusts not be local-authority influenced companies, and as a result, no academy in England is operated by a local authority. The Ministry of Justice is committed to mirroring academies policy and procedures in secure schools to the greatest extent possible and our policy on this issue will be consistent. We will though want to keep this issue under review.”

Well, here we go; we are having a chance to debate that and to see whether the Government have kept it under review.

Local authorities have a long-established and important role in children’s social care and in youth justice provision, including, of course, the running of secure children’s homes. These new establishments will be “secure children’s homes”—that is how the legislation says it. They will be required to meet the quality standards set out in children’s homes regulations and, like all other secure children’s homes, they will be inspected by Ofsted and the Care Quality Commission. However, from the financial and administrative perspective, they will operate as academy trusts. This amendment removes the ambiguity about local authorities running secure 16 to 19 academies. It makes children’s welfare and interests paramount, rather than financial and administrative arrangements. Local authorities have the body of expertise for meeting vulnerable children’s needs in custodial settings and they provide a wide range of services to families within their local communities. Given the very serious harms caused by the most recent experiment of secure training centres, which were outsourced from their inception, this amendment provides a well-tested and tried way of providing these vital services.

The Government’s position is that academies cannot be run for profit. However, this is a new type of children’s establishment, which spans secure children’s homes and academies. All but one of England’s secure children’s homes are run by local authorities and the other one is run by a charity, although it does not look after children who are remanded or sentenced. Children may live in secure children’s homes after a family court has made an order depriving them of their liberty for welfare reasons or because a criminal court has remanded or sentenced them to youth detention accommodation.

Latest inspection judgments for England’s 13 secure children’s homes show that 69% are outstanding or good—including 54% that are good—and 31% require improvement to be good. There is, therefore, considerable expertise within the local authority sector in caring for children with very high levels of need in a locked environment. It simply does not make sense to exclude this knowledge and learning from the secure 16 to 19 academies. The lesson from the last experiment in child detention—secure training centres—should at least ensure that all future secure establishments are run by those with proven expertise in keeping children safe and looking after them well.

This amendment will not affect the first secure 16 to 19 academy—though it will ensure that future establishments are not run for profit—but, critically, it will allow local authorities to apply to run future establishments. Rebuilding the provision of local authority-run secure children’s homes through secure 16 to 19 academies would protect not only those children who would formerly have been sent to a penal institution but also those children in care for whom councils and family courts are desperately seeking secure accommodation.

Ofsted reported this summer:

“There is a shortage of secure children’s homes in England. Since 2002, 16 secure children’s homes have closed. At any one time, around 25 children each day are waiting for a secure children’s home place and around 20 are placed by English LAs in Scottish secure units due to the lack of available places. The limited number of secure children’s homes places means that, even when children get a place, they will likely end up living far away from home.”

Rather than reinvent the wheel, the Government should give local authorities the opportunity to tender for these secure establishments. I must say that this sounds like dogma—the dogma which says that “academy” can mean only something which is not local authority. For goodness’ sake, the important thing here is the service that is to be provided and not the name it is called. The definition of “academy” in this manner may suit the Government but it does not suit the interests of children, who need the best services so that they can get the best form of education in a secure environment and come out of that with an opportunity for their lives in front of them.

My Lords, it is a pleasure to follow the noble Lord, Lord German. I know that he has an immense amount of experience in matters around education, from both his personal experience of teaching in earlier decades and his work in the Welsh Assembly Government. I probably support his amendment, but I am much less interested in the amendments here than in achieving a shared purpose, which is that children who are in custody have the chance of a quality education which will enable them to go on to higher education, where appropriate, good apprenticeships and other forms of training which will give them a decent chance in life—most of them not having had a chance in life. I am afraid it is a truism, at least in my experience of visiting many institutions holding children, that for many of them, that institution is the most comfortable and secure place, emotionally, that they have ever lived. That is a sad commentary on their situation.

I carried out some voluntary work for the Howard League some years ago, and it involved visiting Oakhill, Rainsbrook and, indeed, Feltham—a place which has been through good and bad patches over the years but, from what I hear from people who work there, is at the moment pretty challenging and not providing children with a particularly good education.

The ambition that we surely all share is that there should be a consistent level of good education throughout those institutions. I will give an illustration of why. When I was doing the voluntary work for the Howard League, of which the current president is another Member of your Lordships’ House, the noble Lord, Lord Macdonald of River Glaven—I am very happy to see him in that role—I went to one of the institutions that I have named. I was taken around and a boy of about 16 asked me to go into his room, as he called it. I went into his room and all over the wall there were maths certificates, including a grade A GCSE maths certificate. I said something really silly like, “You must be very good at maths.” He said, “I love it, sir. I want to be a maths teacher when I leave this place.” I do not know what happened to him, but he certainly had the ability to be a maths teacher. The reason he got that maths GCSE was because there was one really inspired teacher in that institution who spotted his talent at maths and had taken it to that level. I said to this boy, “Did you like maths when you were at school before you came here?” He replied, and I will never forget these words: “I never went to school, sir.” The capacity of education in these institutions and the opportunity it provides are enormous, but it has to be consistent.

Charlie Taylor, who has been referred to in this debate, did some very valuable work. I was very fortunate in that I was a consultee for him from time to time. He absolutely shares the views I expressed in the last few minutes. I ask the Government to accept that the ambitions I have expressed are shared by the Government too and that, whatever we call these institutions, whoever runs them—I do not really care, to be frank, as long as they reach the requisite standard—will try to reach standards that have been reached in the past. Noble Lords will remember Peper Harow, which was a very fine institution run in the voluntary sector by a number of trustees who would have been familiar in some way or another to Members of your Lordships’ House. It came to a slightly abrupt end because there was an accident there, but people who left Peper Harow, having had their education, commonly went straight to university and achieved university degrees, or did other training that gave them a good life after custody.

I say to the Minister: please can we have an assurance that we are not getting bogged down in process and the name we give to these educational institutions, and that we are actually trying to achieve a gold standard of quality with young people who are bored of being in an institution and for whom education is a really welcome change if it is good enough?

My Lords, I am sorry, I was looking around the Chamber to see who was poised and trying to be too polite. It is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, who many members of the Committee will associate with his legal expertise, but it is to be remembered that he has a considerable track record, to say the least, in matters of penal reform.

It is also a pleasure to have my name associated with this amendment in the names of the noble Lords, Lord German and Lord Marks of Henley-on-Thames. It seems totally anomalous that local authorities should be excluded from giving this provision, for all the compelling reasons given by the noble Lord, Lord German, about the expertise that they have accumulated in relation to education, children, care and so on. It can be only an ideological justification—I must not be too smug about ideology because I have a little of my own. Although there are always political debates about the role of the state in relation to all sorts of goods and services, most people, across politics and across the Committee, have some sort of notion of the irreducible core of the state. Personally, I think that, as with policing and the Army, incarceration ought in general to be a primary responsibility of the state itself, for obvious reasons to do with the vulnerability of those incarcerated and the responsibility, including democratic responsibility, of politicians, whether at local or national level, in relation to powers of coercion and the incredible vulnerability of people who, of course, cannot even vote.

Unlike the noble Lord, Lord Carlile, I have not had the privilege or the experience of visiting incarcerated children, but I have seen bad things in the privatised detention estate in the context of immigration and asylum. My biggest fear in relation to establishments that are privately run is of buck-passing when conditions are poor: one contractor responsible for some services blames the contractor responsible for the others, everybody blames whoever it is at the top of the tree—the Home Office or the justice department—and nobody is responsible. That is why I have a huge problem in general with vulnerable people of whatever kind being incarcerated for profit in private hands. Noble Lords need only to look to the other side of the Atlantic to see the logical conclusion of an ever more privatised and ever-growing state of incarceration.

Whether I am right or wrong about that, and I have friends on the Benches opposite who think that private prisons are fine, and whatever your view on private prisons, incarcerated children are in a particularly vulnerable position. We as legislators, and government, national and local, have particular responsibilities for this cohort, for the reasons set out so ably by the noble Lord, Lord Carlile.

I will say one final thing on this to the Minister; I do so rather crushed by the way the debate on the previous group ended, with the door being slammed on even reviewing the age of criminal responsibility. We debated very serious crimes and rightly so, such as the Bulger case and so on, but for many other children criminality is about things such as common assault, slightly more serious assault, criminal damage or crimes of dishonesty. The reality of family life and children’s lives is this: one child will be treated one way because they have the support of their family, and another child, in particular a child who comes from a chaotic family with a lack of support and parenting, or who is looked after by the state, will face a very different outcome and will be much more likely to find themselves incarcerated, under whatever label of institution. That is why it is particularly pernicious that any such institution should ever be run for profit. We the community have already failed that child and we need to compensate for our failure when we look after these most vulnerable children. That is why I support noble Lords’ speeches and the amendment from the noble Lord, Lord German.

My Lords, our first aim with Amendment 223A, to which I have added my name, is to ensure that secure academies may be run by local authorities. The present position is that, under the Academies Act, the local authority may not maintain a school that becomes an academy. The result is, as my noble friend Lord German said, to prevent local authorities running secure academies, apparently in the interests of consistency between secure academies and other academies.

Our amendment would enable a local authority to play its part. However, it is entirely non-prescriptive and does not require secure academies to be run by local authorities. It simply permits them to be so. We believe that local authorities have a very important part to play in the running of secure academies, with the very best prospect of success in educating, training and rehabilitating young offenders.

The noble Lord, Lord Carlile of Berriew, mentioned Charlie Taylor. He has always taken and expressed the view that education for young offenders is at the heart of youth justice, and at the heart of reform and rehabilitation. We have considered in Committee the role of local authorities in youth justice at a number of levels and in a number of spheres. Education is, of course, at the forefront, but we should also not underestimate the importance of the local authority role in housing and social services. Both departments have a great deal to do with the criminality of young people. There can, we suggest, be no justification at all for ruling out local authority involvement in these secure academies.

I agree with the noble Lord, Lord Carlile of Berriew, that generally we should be keen to avoid dogma and that what we are doing should be about outcomes. Nevertheless, the second purpose of our amendment is to ensure that secure academies are run on an entirely altruistic basis by not-for-profit organisations. The purpose of this part of the amendment is to ensure that secure academies must be run not for profit but for the good of those who attend them as students.

We have all seen the difficulties that befell the probation service under the Grayling changes, which have since been abandoned. Then the larger part of the probation service was shunted off to community rehabilitation companies, and that led to a decline in voluntary sector involvement, which is particularly important in this area. A failure of collaboration with local authorities and an excessive and single-minded pursuit of profit was to the detriment of the clients that the CRCs were established to help and look after.

I do not believe for a moment that that is in the Government’s mind, but it is a danger that may be inherent in the present proposals, and we suggest that the care of damaged young people who have been sent to secure academies by the courts should never be in the hands of organisations run for profit.

My Lords, it takes a very particular kind of person to be a teacher, but it takes a much more particular kind of person to work in an institution with young people who are clearly already damaged when they arrive. The idea that the Government appear to be taking—a rather dogmatic view about how 16 to 19 provision should be run, in terms of there being only academies and only reflecting the way academies are seen in law in the schools sector—seems to be completely wrong.

It is obvious that the profit motive simply cannot function in this type of provision. Teachers, whether in secure accommodation or other places, are not as well paid as they should be, but the fact is that they are not motivated in general by the level of their salary. Therefore, there is absolutely no reason why we should think that anyone affording that provision should be motivated by profit.

My own experience of young people of this type is that I did, very many years ago, work in a non-custodial, non-residential setting for young people who were at risk of care or custody. I have to say that they were all at risk of custody. But the fact that I worked in a local authority provision, where we were able to work very closely with the youth offending team, our local social services and our probation service, and all of our play therapists and other types of therapists, meant that, in general, it was a very successful provision.

I have, like the noble Lord, Lord Carlile of Berriew, had the opportunity through my union experience to visit teachers working in a whole range of institutions—some of which, I am sorry to say, no longer function. This type of provision, as my noble friend Lady Chakrabarti said, should be at the irreducible core of what the state does and affords for some of our most vulnerable young people. For that reason, I am very happy to support the amendments.

My Lords, I am very grateful to those who have spoken in this short debate. Clearly this amendment is at the centre of this group of amendments. In summing up what everyone has said, I would say that the direction everyone has travelled in is not that these schools or academies should be provided by local authorities, but that they should be given the right to tender to provide those schools or academies.

The judgment that the noble Lord, Lord Carlile, made, was that it does not matter who runs them, providing they get the very best education for these very vulnerable children. The standard of education is what is important, not who runs them. At present, local authorities are excluded simply because there is a view that anything called an “academy” in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.

As the noble Baroness, Lady Chakrabarti, said, these are the most vulnerable of children and young people; their lives and futures are at stake. The noble Baroness, Lady Blower, talked of the qualities of the teachers. These teachers have to be the very best, because they are facing the most difficult of circumstances and it becomes a real challenge. It requires a very special person indeed to devote their life to this sort of education. Where you find the best teachers is in the quality of the tender exercise for these establishments.

Excluding local authorities because they breach the Government’s standard that any academy must not be run by a local authority seems to miss the point. My noble friend Lord Marks talked about the experiment with the rehabilitation companies. A lot of effort went into those. The one thing that was totally absent at the end was the engagement of the charitable and voluntary sector. In other words, because they were driven by having to meet a contract, they were not driven by providing the best service for rehabilitation. Quite rightly, that system has now been overturned.

It drives one to think that, if you have as your goals what is best for the child and what are the best services you can provide, excluding those with the most expertise in this area seems simply crazy. I hope that the Minister will be able to address these matters and take on board the whole point of these amendments, which is not to prescribe local government but to offer it the opportunity where it can compete, providing it can offer the best. What matters is the best for our children, not who should run the service.

My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.

Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—

I am grateful to the Minister for giving way. Has he had regard to Section 6 of the Academies Act, which provides that a local authority must cease to maintain a secure school if it becomes an academy? That seems to have the effect of ruling out local authority involvement, even if it operates in a slightly circuitous way.

It might well be that it operates in a slightly circuitous way. I have not looked at that section myself. Let me look at it after I sit down. If I need to upgrade, so to speak, what I have said, I will write to the noble Lord, because I do not want to understate the position if I have inadvertently done so. I will look at the section later—I hope, today.

The noble Lord, Lord Carlile of Berriew, said that it is not so much about the name of the institution as about what goes on within it. On that, I strongly agree, as I do on the importance of education in this context, especially in the example given by the noble Lord, of somebody who it appears had not had the benefit of any education before. That is therefore especially appropriate.

At the same time as what I said earlier about local authorities, it is right to say that local authorities have a statutory duty to safeguard and promote the welfare of children in their local area. We would therefore expect secure school providers to work closely with local authorities in relation to the well-being of children in their care. It is important to note also that secure children’s homes, which can be run by local authorities, remain an important part of the current and future youth custodial estate.

Let me deal particularly with the profit motive, which seemed to lie at the heart of a number of contributions to this debate. As academies, secure 16 to 19 academies will be state funded with the core charitable purpose of providing education for the public benefit. All academies, including 16 to 19 academies, are part of an academy trust, which is a not-for-profit charitable entity and, as such, cannot make a profit—or, to be more precise, any profits which are made have to be ploughed back into the purpose of the trust. Secure schools will always be run by non-profit organisations. I therefore hope, in light of what I have said, that it will be appreciated that the second part of this amendment, proposed new subsection (9), preventing profit corporations establishing or maintaining these academies, is unnecessary.

On Amendments 223B to 223F, presented to the Committee by the noble and learned Lord, Lord Falconer of Thoroton, I have assumed that these amendments are intended to apply to children looked after by local authorities, but it is worth noting that secure accommodation is used more widely, including for children who are detained by the police and for children who are sentenced or remanded as part of criminal court proceedings.

Local authorities have a duty under the Children Act 1989 to ensure sufficient appropriate accommodation for all the children they look after. I recognise that some local authorities have found it difficult accessing in practice the most appropriate accommodation, particularly for children with the most complex needs. The lack of available and suitable placements for those most vulnerable children is extremely concerning and is something which I and the Government take seriously. We are taking significant steps to support local authorities to fulfil their statutory duties. A programme of work is starting this year to support local authorities to maintain existing capacity and expand provision in secure children’s homes. That means that children can live closer to their previous home and in provision which best meets their needs.

Let me deal specifically with Rainsbrook, to which the noble and learned Lord referred. The situation there is completely unacceptable. We acted decisively to empty the site. All children have now been removed from Rainsbrook. We transferred them to alternative appropriate accommodation within the youth secure estate. We are working through the contractual options with MTC on the future of that contract. When we have completed that work, we will make a further announcement.

In response to the recent concerns about performance at Oakhill, the former Lord Chancellor commissioned Ofsted to undertake a monitoring visit. That took place on 13 September. The report was published within a month, on 11 October, and noted concerns that inspectors had had. Having subsequently attended the centre for a full annual inspection at the beginning of October, Ofsted, together with the Chief Inspector of Prisons and the Care Quality Commission, invoked the urgent notification process at Oakhill on 14 October; that is, within the last month. On the 11th of this month, a response was published to Ofsted and the accompanying action plan, and we are now considering plans to ensure sufficient accommodation for those children at the site.

The spending review announced another £259 million to continue the programme to maintain capacity, expand provision and support local authorities in this regard. There is also the independently-led care review to support improvements to children’s social care and ensure that good practice is applied to every child. That review is expected to be published in the spring. I do not want to pre-empt it now, but we are alive to the particular needs of the children in this cohort.

I have received a note—I will keep my word to look at this matter again later—which indicates that the noble Lord, Lord Marks, may have erred. It is such an astonishing proposition that I will check it for myself later. I am told that he may have nodded in the sense that Section 6 relates to schools being converted to academies. It has no impact on local authorities entering into funding agreements with the Secretary of State. Whether the noble Lord has misunderstood, or whether the note I have been provided with is somewhat cryptic, I will keep my promise to look at it myself later in the day.

The Minister mentioned £259 million in relation to the secure training programme. I may have not quite heard what he said. Is that new money or is it just maintaining the existing amount of money per annum?

My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.

Before the Minister sits down and before I admit to nodding, the point he made is why I referred to the operation of Section 6 as being possibly circuitous. It seems that in certain circumstances it may well apply, and it may well apply more generally.

The reason why I did not say it in terms that I was certain that the noble Lord had got it wrong was precisely that point. It seems that we might be approaching this point from different ends, but I will look at it myself and, if necessary, I will drop noble Lords a note. It may not be necessary given what has now been said.

Amendment 222 agreed.

Amendment 223

Moved by

223: Clause 139, page 128, line 22, leave out “pupils” and insert “students”

Member’s explanatory statement

This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 128, line 15.

Amendment 223 agreed.

Amendment 223A not moved.

Clause 139, as amended, agreed.

Amendments 223B to 223F not moved.

Clause 140: Serious violence reduction orders

Amendment 224

Moved by

224: Clause 140, page 129, line 27, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”

Member’s explanatory statement

This amendment would raise the threshold for the standard of proof required to impose an SVRO, from a civil standard (the balance of probabilities) to the criminal standard (beyond reasonable doubt).

My Lords, with the leave of the Committee, I am going to make a slightly unusual request. The noble Baroness, Lady Meacher, cannot unfortunately be in her place. She was unable to be in the House at very short notice. However, the noble Baroness, Lady Armstrong of Hill Top, needs to chair a Select Committee at 3 pm, so I wonder if I could formally move Amendment 224 and then allow the noble Baroness, Lady Armstrong, to make her speech. On that basis, I beg to move Amendment 224.

My Lords, I am enormously grateful to the noble Lord, Lord Paddick. I am chairing a Select Committee. I will come back for the rest of the debate, but I have to come back from Millbank, and I am not as fast as I used to be.

I want to be brief, but I return to an issue that I have consistently raised with the Minister over several Bills: the position of girls and women who are being sexually exploited, abused and subjected to violence. I want to help the Government to get out of the hole they are digging themselves into, where they are losing what they learned during the passage of the Domestic Abuse Bill about coercive control and about what happens to women who have been traumatised by this sort of behaviour. I want them to think about that in relation to my amendment on these very difficult serious violence reduction orders. I am not going to intervene in the rest, because I will support them if there is a vote at Third Reading, but this is a very specific amendment.

I realise the pressure on the Minister. I hope she has had a chance to look at the very short video that I sent her of a young woman from Newcastle—so the Minister should recognise the accent—telling of her inability to tell anyone of the activity of the perpetrator who was grooming and abusing her until she had been sentenced for something ridiculously small that was technically nothing to do with her abuse. Once she got to see a probation officer, she really felt that she had to say something about why she had been involved in criminal activity, and she was then referred to the charity Changing Lives; I ought to say that I still mentor the person who deals with women in that charity. The young woman from Newcastle was then able to talk about the abuse that she had suffered, the effects of what the perpetrator had done to her, and why this had led her to behave in the way she did.

It does not take much imagination to recognise that women who have been trafficked, groomed and subjected to physical, psychological and sexual abuse are not going to say what they know about the criminal activity of their abusers without themselves being supported and protected by those who understand trauma and what has happened to them. This amendment seeks to remove the “ought to have known” provision that will mean that women and girls who are judged that they “ought to have known” that someone in their company was in possession of a bladed article or offensive weapon could face two years’ imprisonment for a breach of the order’s terms. This simply criminalises women who are already being subjected to appalling criminal abuse. I do not believe that that is what the Government want to do. We know how we can change women’s life chances in these circumstances. We can do it. I work with people who do it, but this is not the way. This will not help them into a more stable and secure life. This will drive them into more criminal behaviour and into entrenching their problems.

I gather that this is seen as an extension of the joint-enterprise laws. The problem the Government have is that these laws have brought women into the criminal justice system when they had no involvement in the alleged offence. Research has found that in 90% of joint-enterprise cases against women, they had engaged in no violence at all, and in half of the cases they were not even present at the scene. We also know from research that more women and girls from BAME backgrounds are likely to be picked up under this sort of provision, and the Government really need to think about that, too.

This provision was not included in the consultation on these orders. I really do think that the Government did not have the opportunity to think the provision through in relation to the women and girls I am talking about. They have the opportunity to quietly drop it now before Report, and I hope and trust that they will.

My Lords, my noble friend Lord Paddick will speak from the Front Bench for my party on this group, but he has quite a lot to say and, in view of the time, he has asked me to speak now, so with your Lordships’ permission or agreement, I shall address a number of points where serious violence reduction orders—SVROs for short—offend against cardinal principles of justice that our criminal law generally holds to be of the greatest importance.

I say at the outset that we should be in no doubt that an SVRO is to be a criminal sanction. That is, first, because of the requirements and prohibitions it imposes on an offender who is made subject or is to be made subject to such an order. It is, secondly, by reason of the draconian powers exercisable by the police in respect of an offender who is to be made subject to such an order, which are the equivalent of a criminal sanction on that subject. It is, thirdly, because the exposure of an offender subject to an SVRO to further criminal sanctions for the breach of any conditions attached to it amounts to a criminal sanction in its imposition.

Against that background, my first objection of principle is that it is wrong that a criminal sanction should be imposed independently of any criminal offence. Amendment 225, in the names of my noble friend Lord Paddick and the noble Baroness, Lady Meacher, is addressed to the novel and unwarranted approach to carrying a bladed article in the proposed new subsections 342A(3)(b) and (4)(b). As their explanatory statement makes clear, carrying a knife is not of itself a criminal offence, yet these provisions would render an offender liable to be made subject to an SVRO if either the offender or a joint offender with that offender had a knife with them, for whatever reason, whether the carrying of that knife was an offence or not. These orders as proposed would impose criminal sanctions for conduct which did not amount to an offence known to the law. That is contrary to principle in a profound and unacceptable way.

My second objection is that our criminal law generally insists on proof of guilt to the criminal standard, beyond reasonable doubt, before any criminal sanction can be imposed. Certainly, the civil standard of proof has its place in the criminal law, but that is generally when the law imposes a burden of proof upon the defendant to establish the facts of a defence which, if proved, would justify conduct that would otherwise be criminal. However, what is proposed here is that a criminal sanction can be imposed on the basis of proof, to the civil standard only, of the primary facts giving rise to that sanction. Again, that is contrary to principle and is calculated to water down, even to undermine, one of the most fundamental principles of our criminal law—one that I venture to suggest is probably the best known of any of those principles among the general public.

My third point concerns the unwarranted extension of the law relating to joint enterprise embodied in the proposed new subsection 342A(4). That is why I have added my name to Amendments 226A and 226B just spoken to by the noble Baroness, Lady Armstrong of Hill Top. I do not understand how it can be contended that an offender should be subject to criminal sanction if that offender did not know that a bladed article or offensive weapon would be used by a joint offender in the commission of an offence on the basis that he merely “ought to have known” that fact. That is proposed new subsection 342A(4)(a).

Proposed new subsection 342A(4)(b) is even worse: an offender is to be subject to the criminal sanction of an SVRO because a joint offender had a bladed article or offensive weapon with him at the time of the offence, even if the offender did not know that, simply on the basis that he “ought to have known”. And all this to be proved to the civil standard only, notwithstanding that possession of a knife is, of itself, not a criminal offence.

That is not all. I shall be supporting the noble Lord, Lord Ponsonby, in opposing Clause 140 standing part of the Bill because, in addition to all that I have said so far, SVROs are to be imposed without any right to trial by jury; they are to be imposed by a judge alone, following conviction. As for the evidence to be adduced to support their imposition, in the words of proposed new subsection 342A(8), it is not to matter

“whether the evidence would have been admissible in the proceedings in which the offender was convicted.”

That anomaly is the subject of Amendment 231, in the name of my noble friend Lord Paddick. I simply ask, in connection with these SVROs, where are we heading. It is in the wrong direction for our criminal justice system.

Debate on Amendment 224 adjourned.

House resumed.

Sitting suspended.