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Hilary Benn: I, too, am grateful for the opportunity that the new clause has given us to debate briefly the consequences of the judgment in the High Court on 29 November in the case brought by the Howard League for Penal Reform. I said at the time—I say it again—that I welcome that judgment. It might be useful if I remind the Committee what the judgment said.
The judgment said that the Children Act 1989 does not confer or impose any functions, powers, duties, responsibilities or obligations on either the Prison Service or the Home Secretary, but the duties that a local authority would otherwise owe to a child, either under section 17 or section 47 of the Act, do not cease merely because a child is currently detained at a young offenders institution. In that sense, the Act does apply to children in YOIs. However, a local authority's
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functions, powers, duties and responsibilities under the Children Act 1989 must operate subject to the necessary requirements of imprisonment.
The judgment held that the statement in the paragraph of the Prison Service order that says that the Act does not apply to under 18-year-olds in prison is wrong in law. The Prison Service had identified that because it said that it intended to remove the statement from the order.
The judge said that with the sole exception of that statement, the policy set out in the Prison Service order complied with domestic law, especially with the Children Act 1989, and more than adequately met the Prison Service's obligations under human rights law. Indeed, the order was commended for the humanity that shone out from every page. The hon. Member for Somerton and Frome hit the nail on the head when he said that the issue is not what the law says but the implementation of the policies within the Prison Service. That is why it has revised its child protection protocol to set out clearly the relationship that is expected between young offenders institutions and the local area child protection committee in every case.
Most governors now have representation on a local ACPC. Each young offenders institution in the juvenile estate has appointed a child protection co-ordinator and has established a child protection committee for the establishment. Several of those committees have representation from the local area child protection committee. A training module on child protection has been developed for staff in the juvenile estate. The juvenile group hosts regular meetings of child protection co-ordinators to examine policy development.
The child protection policy was developed in addition to the work that YOIs are doing to safeguard young people's welfare, and the issues that have been examined include: reception processes; induction; work with personal officers; dealing with bullying; and suicide and self-harm prevention. As the responsible Minister, I attach the highest priority to that work. Let us be honest, the support and facilities that we can provide for young people can vary widely, depending on whether they are in a local authority secure unit, a secure training centre or a prison. Decisions on placements are rightly taken on considerations of vulnerability, and the most vulnerable are placed in accommodation that can provide the best support. We have inherited that historical position and we need to make real progress.
4.19 pm
Sitting suspended for a Division in the House.
4.34 pm
On resuming—
Hilary Benn: Before the Division, I was describing several steps that we have taken. To my hon. and learned Friend the Member for Redcar, I say that we have undertaken a review of segregation and of control on constraint, which I specifically asked to be done. The Youth Justice Board intends, among other
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things, to draw up a specification for advocacy services in juvenile establishments, which is something to which I attach particular importance. The issue is not the statutory requirements, but implementation. I am not persuaded about two parts of the new clause, because subsections (4) and (5) are an attempt to legislate to deal with a problem that does not exist. I know of no circumstances in which someone from a local authority who wanted to discharge his or her duties has been denied the opportunity to enter an establishment. If anyone were aware at any time that that had occurred, I would ask them to bring it to my attention straight away. I do not think that it is necessary to legislate to stop something happening that I am not aware is happening; nor indeed is it necessary to invoke the penalties in subsection (5).
My officials have already had initial discussions with the Howard League about the work that the Prison Service is doing. I intend to meet with the Howard League before long and have written to Francis Crook to that effect. I am strongly committed to ensuring that we get the practice right. I hope that in the spirit of what I have said my hon. Friend the Member for Nottingham, North will withdraw the motion.
Mr. Allen: In view of the Minister's reassurances and the fact that he is going to meet the Howard League, I could not do anything other than beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Schedule 1
Transfer of community orders to Scotland or Northern Ireland
1 (1) Where the court considering the making of a community order is satisfied that the offender resides in Scotland, or will reside there when the order comes into force, the court may not make a community order in respect of the offender unless it appears to the court—
(a) in the case of an order imposing a requirement mentioned in subparagraph (2), that arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be residing when the order comes into force, and that provision can be made for him to comply with the requirement under those arrangements, and
(b) in any case, that suitable arrangements for his supervision can be made by the council constituted under section 2 of the Local Government etc.(Scotland) Act 1994 (c.39) in whose area he resides, or will be residing when the order comes into force.
(2) The requirements referred to in subparagraph (1)(a) are—
(a) an unpaid work requirement,
(b) an activity requirement,
(c) a programme requirement,
(d) a mental health treatment requirement,
(e) a drug rehabilitation requirement,
(f) an alcohol treatment requirement, and
(g) an electronic monitoring requirement.
(a) the appropriate court for the purposes of paragraph 16 of Schedule 7 (amendment by reason of change of residence) is satisfied that an offender in respect of whom a community order is in force proposes to reside or is residing in Scotland, and
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(b) it appears to the court that the conditions in subparagraph (1)(a) and (b) are satisfied,
the power of the court to amend the order under Part 4 of Schedule 7 includes power to amend it by requiring it to be complied with in Scotland and for the offender to be supervised in accordance with the arrangements referred to in subparagraph (1)(b).
(4) For the purposes of subparagraph (3), any reference in subparagraph (1)(a) and (b) to the time when the order comes into force is to be treated as a reference to the time when the amendment comes into force.
(5) The court may not by virtue of subparagraph (1) or (3) require an attendance centre requirement to be complied with in Scotland.
(6) A community order made or amended in accordance with this paragraph must—
(a) specify the locality in Scotland in which the offender resides or will be residing when the order or amendment comes into force,
(b) specify as the corresponding order for the purposes of this Schedule an order that may be made by a court in Scotland;
(c) specify as the appropriate court for the purposes of subsection (4) of section 228 of the Criminal Procedure (Scotland) Act 1995 (c.46) a court of summary jurisdiction (which, in the case of an offender convicted on indictment, must be the sheriff court) having jurisdiction in the locality specified under paragraph (a);
and section 196 (petty sessions area to be specified) does not apply in relation to an order so made or amended.
2 (1) Where a court is considering the making or amendment of a community order by virtue of paragraph 1, Chapter 4 of Part 12 of this Act has effect subject to the following modifications.
(2) Any reference to the responsible officer has effect as a reference to the officer of a council constituted under section 2 of the Local Government etc.(Scotland) Act 1994 (c.39) responsible for the offender's supervision or, as the case may be, discharging in relation to him the functions in respect of community service orders assigned by sections 239 to 245 of the Criminal Procedure (Scotland) Act 1995 (c.46).
(3) In subsection (7)(b) of section 181 (activity requirement) the reference to the local probation board has effect as a reference to a council constituted under section 2 of the Local Government etc.(Scotland) Act 1994 (c.39).
(4) In section 187 (mental health treatment requirement), for subsection (2)(a) there is substituted—
''(a) treatment as a resident patient in a hospital within the meaning of the Mental Health (Scotland) Act 1984, not being a State hospital within the meaning of that Act;''.
3 (1) Where the court considering the making of a community order is satisfied that the offender resides in Northern Ireland, or will reside there when the order comes into force, the court may not include in the order such a requirement as is mentioned in subparagraph (2) unless it appears to the court that arrangements can be made by the Probation Board for Northern Ireland for him to comply with the requirement.
(2) The requirements referred to in subparagraph (1) are—
(a) an unpaid work requirement,
(b) an activity requirement,
(c) a programme requirement,
(d) a mental health treatment requirement,
(e) a drug rehabilitation requirement,
(f) an alcohol treatment requirement,
(g) an attendance centre requirement, and
(h) an electronic monitoring requirement.
(a) the appropriate court for the purposes of paragraph 16 of Schedule 7 (amendment by reason of change of residence) is satisfied that the offender to whom a community order relates proposes to reside or is residing in Northern Ireland, and
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(b) it appears to the court that provision can be made by the Probation Board for Northern Ireland for the offender to comply with the requirement,
the power of the court to amend the order under Part 4 of Schedule 7 includes power to amend it by requiring it to be complied with in Northern Ireland.
(4) A community order made or amended in accordance with this paragraph must specify the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment comes into force; and section 196 (petty sessions area to be specified) does not apply in relation to an order so made or amended.
(5) A community order made or amended in accordance with this paragraph must also specify as the corresponding order for the purposes of this Schedule an order that may be made by a court in Northern Ireland.
4 (1) Where a court is considering the making or amendment of a community order by virtue of paragraph 3, Chapter 4 of Part 12 of this Act has subject to the following modifications.
(2) Any reference to the responsible officer has effect as a reference to the probation officer responsible for the offender's supervision or, as the case may be, discharging in relation to the offender the functions conferred by Part 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)).
(3) In subsection (7)(b) of section 181 (activity requirement) the reference to the local probation board for the area in which the premises are situated has effect as a reference to the Probation Board for Northern Ireland.
(4) In section 187 (mental health treatment requirement), for subsection (2)(a) there is substituted—
''(a) treatment (whether as an inpatient or an outpatient) at such hospital as may be specified in the order, being a hospital within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972, approved by the Department of Health, Social Services and Public Safety for the purposes of paragraph 4(3) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996;''.
5 In this Part of this Schedule—
''corresponding order'' means the order specified under paragraph 1(6)(b) or 3(5);
(a) if the offender resides in Scotland, or will be residing there at the relevant time, the sheriff court having jurisdiction in the locality in which he resides or proposes to reside, and
(b) if he resides in Northern Ireland, or will be residing there at the relevant time, the court of summary jurisdiction acting for the petty sessions district in which he resides or proposes to reside;
''the local authority officer concerned'', in relation to an offender, means the officer of a council constituted under section 2 of the Local Government etc.(Scotland) Act 1994 (c.39) responsible for his supervision or, as the case may be, discharging in relation to him the functions in respect of community service orders assigned by sections 239 to 245 of the Criminal Procedure (Scotland) Act 1995 (c.46);
''the probation officer concerned'', in relation to an offender, means the probation officer responsible for his supervision or, as the case may be, discharging in relation to him the functions conferred by Part 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24));
''the relevant time'' means the time when the order or the amendment to it comes into force.
6 Where a community order is made or amended in accordance with paragraph 1 or 3, the court which makes or amends the order must provide the home court with a copy of the order as made or amended, together with such other documents and information relating to the case as it considers likely to be of assistance to that court; and paragraphs (b) to (d) of subsection (1) of section 199 (provision of copies of relevant orders) do not apply.
7 In section 200 (duty of offender to keep in touch with responsible officer) the reference to the responsible officer is to be read in accordance with paragraph 2(2) or 4(2).
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8 Where a community order is made or amended in accordance with paragraph 1 or 3, then, subject to the following provisions of this Part of this Schedule—
(a) the order is to be treated as if it were a corresponding order made in the part of the United Kingdom in which the offender resides, or will be residing at the relevant time, and
(b) the legislation relating to such orders which has effect in that part of the United Kingdom applies accordingly.
9 Before making or amending a community order in those circumstances the court must explain to the offender in ordinary language—
(a) the requirements of the legislation relating to corresponding orders which has effect in the part of the United Kingdom in which he resides or will be residing at the relevant time,
(b) the powers of the home court under that legislation, as modified by this Part of this Schedule, and
(c) its own powers under this Part of this Schedule.
10 The home court may exercise in relation to the community order any power which it could exercise in relation to the corresponding order made by a court in the part of the United Kingdom in which the home court exercises jurisdiction, by virtue of the legislation relating to such orders which has effect in that part, except the following—
(a) section 232(2)(b), 233, 239(5)(b) or 240(1)(c) or (d) of, or paragraph 1 of Schedule 6 to, the Criminal Procedure (Scotland) Act 1995 (c.46);
(b) paragraph 3(1)(d), 4(1)(d), 7(2) or 8(2) of Schedule 2 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)); and
(c) in the case of a community order imposing an unpaid work requirement, any power to vary the order by substituting for the number of hours of work specified in it any greater number than the court which made the order could have specified.
11 If at any time while legislation relating to corresponding orders which has effect in Scotland or Northern Ireland applies by virtue of paragraph 7 to a community order made in England and Wales—
(a) it appears to the home court—
(i) if that court is in Scotland, on information from the local authority officer concerned, or
(ii) if that court is in Northern Ireland, upon a complaint being made to a justice of the peace acting for the petty sessions district for the time being specified in the order,
that the offender has failed to comply with any of the requirements of the order, or
(b) it appears to the home court—
(i) if that court is in Scotland, on the application of the offender or of the local authority officer concerned, or
(ii) if it is in Northern Ireland, on the application of the offender or of the probation officer concerned,
that it would be in the interests of justice for a power conferred by paragraph 13 or 14 of Schedule 7 to be exercised,
the home court may require the offender to appear before the court which made the order.
12 Where an offender is required by virtue of paragraph 11 to appear before the court which made the community order, that court—
(a) may issue a warrant for his arrest, and
(b) may exercise any power which it could exercise in respect of the community order if the offender resided in England and Wales,
and any enactment relating to the exercise of such powers has effect accordingly, and with any reference to the responsible officer being read as a reference to the local authority officer or probation officer concerned.
13 Paragraph 12(b) does not enable the court to amend the community order unless—
(a) where the offender resides in Scotland, it appears to the court that the conditions in paragraph 1(1)(a) and (b) are satisfied in relation to any requirement to be imposed, or
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(b) where the offender resides in Northern Ireland, it appears to the court that arrangements can be made by the Probation Board for Northern Ireland for him to comply with any requirement to be imposed.
14 The preceding paragraphs of this Schedule have effect in relation to the amendment of a community order by virtue of paragraph 12(b) as they have effect in relation to the amendment of such an order by virtue of paragraph 1(3) or 3(3).
15 Where an offender is required by virtue of paragraph (a) of paragraph 11 to appear before the court which made the community order—
(a) the home court must send to that court a certificate certifying that the offender has failed to comply with such of the requirements of the order as may be specified in the certificate, together with such other particulars of the case as may be desirable, and
(b) a certificate purporting to be signed by the clerk of the home court is admissible as evidence of the failure before the court which made the order.'.—[Hilary Benn.]
Brought up, read the First and Second time, and added to the Bill.
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