Baroness Chakrabarti:

Moved by Baroness Chakrabarti

140: After Clause 41, insert the following new Clause—“Removal of power to remand in custody for a person’s own protection or welfare(1) Schedule 1 to the Bail Act 1976 (persons entitled to bail: supplementary provisions) is amended as follows.(2) In Part 1 of that Schedule omit paragraph 3.(3) In Part 1A of that Schedule omit paragraph 5.(4) In Part 2 of that Schedule omit paragraph 3.”Member’s explanatory statementThe Amendment would repeal the power of the courts to remand a person in custody for their own protection or, if they are a child or young person, for their welfare.

My Lords, I wish I could offer every Member of the Committee who is still here an espresso at this point. Instead, I will try to be short and lively.

This Amendment is the only amendment that I have tabled to a Bill that I broadly support, for reasons that need little explanation at this point, but Amendment 140 in my name—by the way, I also support Amendment 147 in the names of the noble Lords, Lord Foster of Bath and Lord Marks of Henley-on-Thames—has been on my conscience. I am particularly grateful to the noble Baroness, Lady Hamwee, for signing it. Of course, she was the first and distinguished chair of your Lordships’ Justice and Home and Affairs Committee.

This amendment concerns a provision in the Bail Act 1976 that, to my shame, I was unaware of until relatively few weeks ago, notwithstanding working in this area of law and policy for over 30 years. It really is on my conscience, and I think it should be on the conscience of the Government and the Committee. The provision states that vulnerable people may be remanded in custody for their own protection, even when they are charged with non-custodial offences. I would like to know from my noble friend the Minister’s reply, among other things, how this is conscionable and how it squares with the Government’s commitment to Article 5 of the European Convention on Human Rights, which sets very tight criteria for detaining people.

I was extremely grateful, as always, for a conversation about this with my noble friend the Minister and his officials two weeks ago. However, as a former government lawyer, I am always concerned about the danger of resistance to amendments because they “weren’t invented here”. I plead with my noble friend and other Members of the Committee to engage with a scandal. It is not a scandal on the scale of IPP. I did not speak in that debate to spare the Committee’s time, but I associate myself with all those who spoke on the IPP amendment. This is not indefinite detention, with all the lost hope, but it is about detaining vulnerable people who should not be detained for their own protection on remand in the criminal justice system.

I am advised by a coalition of NGOs—noble Lords in the Committee will have received their joint briefing—and Justice in particular. I am grateful to Emma Snell, a brilliant young lawyer at Justice, who has educated me about this provision. The coalition is broad; it includes Nacro, Inquest, the Centre for Women’s Justice, the Prison Reform Trust, the Howard League and so on.

Most of the people who appear to be detained for their own protection, including when charged with a non-custodial offence, are being detained because they have an acute mental health crisis, are suffering from addiction or are homeless. Some of them are at risk from others; that could be reprisals in the community or it could be from criminal gangs, and so on. However, none of that is justification for taking someone’s liberty, as opposed to keeping them safe and helping them. This is not something that we would do to witnesses. We would surely put a witness in a safe house rather than detain them for their own protection. I am incredibly concerned that we persist with this.

Furthermore, the Labour Party spoke against this in Opposition only a couple of years ago, and it has been criticised by all the experts in the sector: the independent non-governmental bodies, the chief inspectors, et cetera. To my mind, it is unconscionable that we should detain somebody for their vulnerability and not for a danger that they pose to others. The classic and other grounds for remanding in custody, rather than on bail, are, “You will reoffend”, or, “You will interfere with witnesses”, and so on, but the idea that you should be detained for your own protection or, in the case of children, for your welfare is something that needs to be addressed.

To be fair to the Government, they are already proposing in the Mental Health Bill that this should not be on mental health grounds alone. That is progress, necessary and to be commended. But necessary is not sufficient, because there are other vulnerable people who will not be diagnosed as being vulnerable because of a mental health condition. That could include vulnerable women, homeless people and people who fear reprisals from criminal gangs. They should be made safe, and there are provisions to make them safe in other ways. I think the Committee would want to move away from the idea that we as a political community and a society can only care for and protect people through detention and coercion, and certainly the Bill, in its general thrust, is attempting to do that. I beg to move.

My Lords, I was very glad to sign this Amendment, and I am very grateful to the noble Baroness both for having spotted it and for introducing it so clearly.

A few minutes ago, the noble Lord, Lord Lemos, used a phrase about justice not keeping pace with society. This is an example of that. It seems to me to be a hangover almost from the Victorian age. It is a cruelty to keep people in detention when they are actually vulnerable and need support. They are very often people among whose problems are mental ill-health; they just happen to have more vulnerabilities and problems than people who will fall within the Mental Health Bill.

“For their own protection” seems to me to be a misnomer. The reality is that this can make their condition worse. Some years ago, the Joint Committee on Human Rights conducted an inquiry on detention, which in part covered this issue. The stories we heard were frankly horrifying. This is not the time of night to go into them—but this is an area where we should really ensure that justice keeps up with and leads society.

My Lords, I will speak briefly to Amendment 147. Noble Lords will be well aware that, in earlier debates, I have argued that what we do—whether it is for a custodial or non-custodial sentence—is of course about punishment but should also be about taking steps to reduce reoffending. I have therefore argued that either the police or the Probation Service must put in place measures to help with that, which would include things such as education, skills, and also measures to help people with drug, alcohol, and—as I have added—gambling disorders. We have had those debates already.

However, in today’s debate, I have mentioned the fact that something like 20% of people in prison are on remand, awaiting sentencing. As a result of the huge backlog in the Crown Courts, which I have also mentioned, it is a fact that many of those on remand will be in prison awaiting sentencing for quite a long time. So, it seemed to me perfectly reasonable that, while they are in prison, there should be opportunities that might help them in later life anyway, in terms of the same sorts of measures. This amendment very simply says that those who are in prison on remand should have made available to them the same level of provision that is provided for prisoners after sentencing. It is as simple as that, it seems to be common sense and I look forward to the Minister’s response.

My Lords, turning first to the Amendment in the name of the noble Baroness, Lady Chakrabarti, I must say from the outset that we on these Benches cannot support it. The power to remand a person in custody for their own protection—or, in the case of a child or young person, for their own welfare—is not one that the courts use lightly. It is already tightly circumscribed and deployed only where the alternative would expose an extremely vulnerable individual to serious harm.

To remove that safeguard entirely would be a mistake. There are rare, but very real, occasions when a defendant’s personal circumstances, exploitation by criminal gangs or acute safeguarding concerns mean that the only safe option, in the immediate term, is to keep them in secure accommodation. That judgment, made by a court on evidence and subject to challenge, is not one that we believe Parliament should now deprive them of. Where children are concerned, the imperative is even stronger. The court’s paramount concern must be people’s welfare, and removing this power risks leaving young people unprotected in precisely those situations where Intervention is most vital. For these reasons, we cannot support Amendment 140.

We strongly support the principle underlying Amendment 147 in the name of the noble Lord, Lord Foster. Far too many people spend far too long in remand—months and, sometimes, well over a year—awaiting trial or sentence. For all practical purposes, they experience incarceration in the same way as sentenced prisoners. They are deprived of liberty, separated from their families and often held in conditions indistinguishable from the sentenced estate. Yet those in remand do not have the same access to rehabilitative programmes, education, therapy or other forms of support that are routinely offered post sentence.

That is increasingly difficult to justify, particularly given that time spent on remand is overwhelmingly treated as time served for the purposes of the ultimate custodial sentence. If we accept that remand can form a significant part of an individual’s total period in custody, it cannot be right that this is, in effect, dead time, in which they are able neither to progress their rehabilitation nor to address the issues that may have contributed to their offending behaviour.

Therefore, the amendment proposed by the noble Lord is a valuable contribution to a discussion that is long overdue. It does not prejudge the precise mechanisms or impose unworkable obligations on overstretched services, but it rightly challenges us to consider whether the current disparity is effective or conducive to reducing reoffending. The Government should engage seriously with the spirit of these proposals.

Taken together, the amendments highlight two themes that run throughout our debates on the Bill: the need to protect the vulnerable and the need to ensure that custody, whether pre or post sentence, serves a constructive purpose. I hope that the Minister will commit to further work in this area, and I look forward to his response.

My Lords, I thank the noble Baroness, Lady Chakrabarti, for her Amendment and for taking the time to discuss her related concerns with my noble friend Lord Timpson. I also thank her for her support for the Bill and its overall intentions—that is very much appreciated coming from someone with her track record.

Amendment 140 would remove an important safeguard which, as the noble and learned Lord, Lord Keen, said, is very rarely used but remains an option for the courts as a measure of last resort and out of concern for the defendant. Eliminating this provision could leave vulnerable individuals without any viable protection, particularly where alternative care arrangements were simply unavailable or could not be implemented swiftly enough. We fear that those may be the consequences. Examples where it may be used include where it is the only option available to the court to keep someone safe, such as in cases where the defendant is a member of a gang and could be subject to repercussions if they were not protected.

I hope it will also reassure your Lordships that the Mental Health Bill, which the noble Baroness, Lady Chakrabarti, referred to, is now in the other place. It includes a reform to end the use of remand for one’s own protection under the Bail Act where the court’s sole concern is the defendant’s mental health. This reform should ensure that remand for one’s own protection is, therefore, used only as a last resort in the circumstances I have outlined.

At this stage, repeal would leave a gap in the available provision. Courts must retain the flexibility to act decisively in safeguarding individuals when no other option exists. The amendment would risk unintended consequences for vulnerable defendants and undermine the protective function of the justice system.

Amendment 147, which I thank the noble Lord, Lord Foster, for tabling, seeks to allow prisoners held on remand to access rehabilitative programmes, education, therapy and other support before the start of their sentence. The Government’s view is that the amendment is not necessary, given that remand prisoners can already access those programmes where prisons run them.

There is also an important legal distinction here that I should highlight to your Lordships. Remand prisoners are held in custody pending trial or sentencing, and some have not yet been convicted. Of course, we recognise that people are spending more time on remand; therefore, as I have said, where these services are available and in the right circumstances, they should be able to access them. However, remand prisoners are legally distinct from sentenced prisoners, and we have to reflect that in the priorities for resources.

There are already mechanisms in place to support remand prisoners, including access to healthcare. At the moment, the Government have no plans to expand all rehabilitative programmes, education, therapy and other support to remand prisoners. This would require substantial changes to prison operations and resourcing, and could divert resources from those already convicted and serving sentences. We recognise, however, some of the changes in the remand population. My noble friend the Minister and I would be very happy to continue to talk to the noble Lord, Lord Foster, about these matters but, given what I have set out, I ask the noble Baroness to withdraw her amendment.

My Lords, I am so grateful once more to the noble Baroness, Lady Hamwee, but, I have to say, I am disappointed in the responses from both Front Benches on this occasion. They were uncharacteristic, knee-jerk responses that do not display a broader understanding of the other Laws of England and Wales that deal—or should deal—with vulnerable people.

The noble and learned Lord, Lord Keen of Elie, mentioned children. There are ample measures for protecting children under the Children Act 1989 and looking after them in more appropriate circumstances than in criminal justice detention. I remind the Committee that we are talking about defendants who are being detained not for the classic justifications that they would commit further offences, interfere with witnesses and so on, but for their own protection. Of course, the criminal justice estate is not a place of safety or protection for anyone.

I did not hear a reply to my question about how this can be justified under Article 5 of the European Convention on Human Rights, but perhaps my noble friend the Minister could drop a note on that and offer it to other Members of the Committee. There will not be too many to send it to because there are not many Members here, but I would be hugely grateful for that.

The noble Baroness, Lady Hamwee, had it right when she talked about a Victorian hangover. There are too many Victorian hangovers in this area of law and policy, and I know that my noble friend Lord Timpson is well aware of that. The thrust of the Bill, in general, is about departing from such Victorian hangovers, such as social death and locking people up and throwing away the key. I urge further reflection.

If I am a member of a criminal gang who wants to turn King’s evidence but I am not charged with a minor offence, I will have to be put in a safe house, and there are schemes and measures to do that. But if I happen to be charged with a low-level offence that does not attract a custodial penalty, I am told that it is a last resort and that I am going to be locked up in a prison system where I will be more at danger from the criminal gang than I ever would be in a safe house. These are rather disappointing arguments from members of the Committee who, on reflection, may think again. I shall certainly return to this on Report, but I beg leave to withdraw my Amendment.

Amendment 140 withdrawn.