Report (2nd Day)

Part of Criminal Justice and Courts Bill – in the House of Lords at 4:15 pm on 22nd October 2014.

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Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat 4:15 pm, 22nd October 2014

My Lords, my Amendments 120A and 120B in this group both concern the use of force in secure colleges. Amendment 120B would delete paragraph 10 of Schedule 6 which provides—I say iniquitously—that:

“If authorised to do so by secure college rules, a secure college custody officer may use reasonable force … in carrying out functions”,

which include ensuring good order and discipline on the part of young offenders in custody and attending to their well-being. Amendment 120A would introduce restrictions on the use of force which accord with good practice, with the civilised treatment of young persons in custody and with the European Convention on Human Rights. Furthermore, my amendment accords very closely with the principles set out in the Government’s consultation paper published last week on the proposed secure college rules.

The authorisation of the use of force for the purpose of ensuring good order and discipline—said in the consultation paper to be clarified or modified by the proposed secure college rules—has been the subject of a judgment against the Government in the Court of Appeal in the case of C v Secretary of State for Justice 2008 concerning secure training centres. The clear view of the Joint Committee on Human Rights in relation to the Bill is that provisions authorising the use of force for the purpose of ensuring good order and discipline should be deleted. Those words can go without affecting the implementation of proposals for the sensible and modified use of force, suggested in the consultation paper. What is proposed is not a clarification but a departure—and if it is a departure, good order and discipline should disappear from the legislation altogether.

It is not right for the Government to say that merely because the use of force is authorised by the statute, as circumscribed by the rules, it would be appropriate for the legislation to authorise force for the purpose of enforcing good order and discipline. I believe that the correct conditions for the use of force should be plain in the Bill. There is no reason for not limiting the authorisation in the Bill to accord with what is appropriate. There should be no chance of any misunderstanding or misconception of what is and is not authorised and no internal inconsistency, apparent or real, between the primary and secondary legislation. The Joint Committee on Human Rights considered the Government’s case that there was a distinction to be drawn between the requirements for the Bill and those for the rules—and it rejected it.

On a practical note, as the noble Lord, Lord Ramsbotham, pointed out, the Government’s consultation paper on the secure college rules has only just been released. The Government’s response to the consultation cannot possibly come before Royal Assent for the Bill. That means that unless the Bill is clear about the restrictions that should be imposed on the use of force, the secondary legislation may not properly reflect the will of Parliament, even allowing for the affirmative resolution procedure being applicable to the rules—if it is.

My amendment would make the position clear. The first three purposes for the use of force are uncontroversial. They are to prevent injury to the young person concerned, to prevent injury to others and to prevent serious damage to property. The limitations on the use of force, as contained in the second to fifth conditions of my amendment, are also uncontroversial and in accordance with best practice. They are that force must be used as a last resort only, that the force authorised must be the minimum necessary to achieve its purpose, that it must be applied for the minimum duration necessary to achieve that purpose and that the techniques used should be in accordance with an approved system of restraint. Furthermore, it is important that all those authorised to use force should be properly trained in its application and in techniques of minimum restraint.

However, since Committee, and in the light of the publication of the consultation paper, I have been convinced by the two so-called “scenarios” set out in the consultation paper that there may be a need for force to be authorised also to maintain a safe and stable environment, subject to extra conditions. The first of the two scenarios is where an abusive young person in a secure college disrupts a visiting session for all those in the visiting room, including other detainees, their visitors and families, and simply will not move. The second is where an aggressive young person needs to be moved to protect another young person who is threatened by him, where that other young person is at unusual risk from that aggression. In both these cases I can see that some force may be required to move a detained young person. However, such force as may used in those circumstances—that is, to promote a secure and safe environment—should be limited to circumstances in which a young person poses a risk to the present safety or welfare of another person and should never involve pain-inducing techniques.

These restrictions represent the Government’s view, clearly expressed without reservation in the consultation paper. I simply cannot see why they should not be expressed in the primary legislation, particularly when the secondary legislation will come so late in the day.

The issue of the use of force in secure colleges is serious. We should not forget that in April 2004 at Rainsbrook secure training centre, 15 year-old Gareth Myatt was asphyxiated while being restrained in an approved hold; nor that in August 2004, 14 year-old Adam Rickwood committed suicide at Hassockfield secure training centre after being subject to the so-called “nose distraction technique”. Accordingly, I ask the Government to reconsider their position, to limit the use of force in the Bill in accordance with the principles set out in their consultation paper, and to accept either my amendments or those of the noble Lord, Lord Ramsbotham.