Clause 53 - Aims of youth justice system

Justice (Northern Ireland) Bill – in a Public Bill Committee am 10:30 am ar 12 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed [7 February]: No. 278, in page 30, line 31, leave out subsection (1) and insert—

'( ) The principal aim of the youth justice system in Northern Ireland is to prevent offending by children and to promote the child's reintegration and the child assuming a constructive role in society.

( ) Every child in contact with the law shall be treated in a manner consistent with the promotion of the child's sense of dignity and worth, reinforcing the child's respect for the human rights and fundamental freedoms of others.'.—[Lembit Öpik.]

Question again proposed, That the amendment be made.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

I remind the Committee that with this we are taking the following amendments: No. 223, in page 30, line 32, after 'children', insert

'having taken into account the best interests of the child as the paramount consideration, as identified in the United Nations Conventions on the Rights of the Child; the International Covenant on Civil and Political Rights; The United Nations Guidelines for the prevention of Juvenile delinquency; the United Nations Standard minimum for the Administration of Youth Justice and the United Nations Guidelines for the protection of juveniles deprived of their liberty.'.

No. 264, in page 30, line 32, after 'children', insert 'and young persons'.

No. 277, in page 30, line 37, leave out 'welfare' and insert 'best interests'.

No. 284, in page 30, line 41, at end insert—

'(3A) All persons with responsibility for the youth justice system shall have regard to the United Nations Convention on the Rights of the Child.'.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank the hon. Member for Montgomeryshire (Lembit Öpik) for moving the amendment on Thursday last, in my unavoidable absence. It was most interesting to read the report, which gives a certain flavour of attitudes.

I will be pretty brief, because the debate has already taken place. My three amendments try to fulfil the obligations of recommendation 169 of the review group, which was that

''a clear statement of the aims of the juvenile justice system''

should be developed, agreed and incorporated in legislation. The clause attempts to do that, but it is

parsimonious and lacks the detail and humanity that one would expect on the issue. In many ways, it has a turn-of-the-century tone about it—and I am not talking about the last century. Although I recognise the validity of what the Minister has said and will say about stating the aims, I ask him to consider the importance of the issue—I know that he has—and to try to reflect its importance by agreeing to the amendments.

In a Bill such as this, it is important that we ensure that the wording reflects the challenges that we face and the world that we live in. It is not adequate simply to state the principles in bare terms, as the Government do. That is deficient, because it does not expand on them as it might. It is also incomplete, as it ignores several elements that the review group felt should be included among the aims. I know that they will be dealt with—somewhat parsimoniously, I suggest—in other parts of the clause.

I have no quarrel with the aim of the prevention of offending and the encouragement of children to take responsibility for their actions, but the provisions should deal with the rehabilitation of the offender, which they do not. Nor do they deal with the duty to regard the best interests of the child as a primary consideration, in accordance with article 3 of the United Nations convention on the rights of the child. That convention is the most widely adhered to of all international human rights instruments. It is unacceptable for its fundamental provisions to be ignored when the principles of a system of justice intended to deal with children are under consideration. It will be argued that those principles are reflected elsewhere in the Bill—I do not dispute that—and that they are presented in practical terms—I do not dispute that either. However, I believe that the principles have such weight and importance that they should be stated clearly in the clause.

The amendments derive from the views put forward by the Northern Ireland Human Rights Commission in its submission to the Northern Ireland Assembly. Its approach was accepted by all the political parties. It is important for the relationship between the Administration and the Human Rights Commission, the Equality Commission and all the other agencies to be such that the more we respect and reflect their views, the stronger the legislation becomes. Their input does not weaken its objectives; it strengthens them. Rather than the negative function that is implied in subsections (1), (2) and (3), the justice system should have the positive function of reintegrating children into society and enabling them to play a constructive part in future. That is crucial.

It will be argued that the amendment is redundant, and that those aims are stated elsewhere. So be it. However, those aims are so important that we should live with the possible redundancy and include a declaration of our intent.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

My hon. Friend has anticipated one of the counter-arguments to his assertion. Does he agree that the best thing that we can do for a young person who has a strong propensity to offend is to get him to the stage at which that propensity is much weaker? Subsection (2)

promotes the development of conscience in young people. Surely that is doing the right thing both for the young person and for the wider society.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I could not disagree with a word that my hon. Friend has said. However, I am attempting to ensure that the tone changes and, with it, the declaration of intent in the legislation to make those aims a priority, which the clause does not seem to make them. We must ensure that children in the justice system are treated with dignity, and that all actions taken within the system are taken with the best interests of the child firmly in mind, not just his welfare.

I do not want to argue about semantics, but there is a substantial difference between welfare and best interests. Welfare is the fulfilling of responsibilities in a fairly cold way, whereas dealing with a young person's best interests goes beyond that. I know that hon. Members who have dealt with young people will recognise that substantive difference.

The amendment is important because it provides a declaration of intent. It sets out not only what we shall do, but what our approach will be. The tone that it gives the Bill could help us to achieve our aims.

I believe that amendment No. 286 was grouped with the present amendments on Thursday, and, if I may—

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. It might help the hon. Gentleman to know that amendment No. 286 has been grouped with amendment No. 227 under clause 54, and we shall come to it later. I will allow a reasonable amount of wandering, but we should bear in mind the fact that amendment No. 286 is in the next group.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank you most sincerely for that guidance, Mr. Conway, which gave me time to remember what I was going to say about the amendment.

I shall conclude by asking the Minister carefully to reconsider the amendments. Nothing in them runs contrary to the Bill's wording or objectives or to the direction that it must take. Yes, there is a softening of tone and a little more humanity in them, but it is crucial that we enshrine the UN principles, which take us away from what I called the turn-of-the-century approach and places the issue in a different context, from which it can only benefit.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I shall be brief because we have until one o'clock to discuss 13 clauses, about 80 amendments, some schedules and, possibly, some new clauses.

I want to respond, in particular, to the hon. Gentleman's remarks about legislation containing statements of intent, a matter on which I briefly touched before the weekend. Sentencing policies change quite frequently, and the Lord Chief Justice, Lord Woolf, has quite radically changed them in the past four or five weeks. Hon. Members may have read about this in the newspapers, but I clearly remember him saying that those who were guilty of street robbery or of stealing mobile telephones should go to prison

for a long time. Indeed, he increased the sentence of someone who had stolen a mobile telephone to five years.

As we know, most street crime is committed by youngsters, and there has now been a radical change in the way in which the courts are required to consider the issue. This year, the Lord Chief Justice has also said that, wherever possible, young mothers should not be sentenced to prison. That, again, is a change in sentencing policy, and the Court of Appeal criminal division is constraining the way in which the courts exercise their discretion in sentencing.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 10:45, 12 Chwefror 2002

The hon. and learned Gentleman makes the important point that sentencing policies change. Is it not, therefore, all the more important that principles, which do not change, should be made explicit in legislation such as this?

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I take an entirely different view. Legislation is not the place for statements of intent, which are to be found in policy documents, party political manifestos and papers provided by jurists and others. They should not be placed in statute.

Not only do sentencing policies change, in accordance with declarations by the senior judiciary, but so do Government responses to criminal behaviour. The ways in which the present and previous Governments have dealt with aspects of criminal behaviour have changed from time to time. Usually, in my experience, Government responses to changes in public concern are somewhat delayed and it sometimes takes as long as five years for a criminal justice Act to be passed to bring about change reflecting those concerns. None the less, I have given two examples of the constantly moving scene. By setting in stone the amendment or subsections (1), (2) and (3) we would not do any service to the courts, the Government or those whom we seek to serve.

That lesson was brought home to me at the weekend when I attended a Judicial Studies Board tuition course—one of the refresher courses that recorders attend. I was constantly reminded, as the only recorder at the seminar who was also a Member of Parliament, that much of the criminal justice legislation passed by the House is difficult to apply and does not adequately take account of what has happened before. The result is increasingly meaningless legislation. An article in issue 3 of ''Sentencing News'', for 15 November 2000, concludes:

''Legislators seem to be unable to learn the lesson that statutes which no one can understand cannot be put into effective operation.''

I do not suggest that the amendments or subsections (1), (2) and (3) are impossible to understand, but they are coming close, as I said last week, to being as useless as an early-day motion.

I was rebuked by the Minister on Thursday afternoon, at column 292, for failing to read the criminal justice review. I am not prepared to accept a rebuke from the Minister, whether it is right or wrong. It was wrong, in fact. In my role as shadow Attorney-General I studied the criminal justice review as it was

published before the general election. I may even have come to it before the Minister. I cannot claim to have his detailed knowledge of it, but the points that I am making are outside that context. Simply repeating paragraphs from the review does not add to the quality of the argument that we need to get to grips with in this Committee if we are to produce effective measures.

Nothing in what the Minister said on Thursday afternoon comes close to being an answer to the points that I raised then. I am not making a party political point, but arguing that we need increasingly to be on our guard. We need to ensure that measures passed by the House, particularly on criminal justice matters, have some utility and effectiveness, instead of amounting to a collection of ill-thought-out amendments to earlier measures, or warm words that will make us feel good but fail to achieve our aims.

I of course accept that the aim of the youth justice system must reflect either the content of the amendments or the subsections that I have attacked. However, we do not need those provisions in the Bill. They will not help the sentencers to deal with the youngsters who come before them, nor will they help the people who write the pre-sentence reports. They will be hobbled and will produce a formulaic report.

After the Bill is passed, the probation service or whoever writes the pre-sentence reports in Northern Ireland will, almost as if setting out a computer matrix, write reports that reflect subsections (1), (2) and (3). The reports will then deal with the meat of the case, consider what should be done with a particular child or young person and pay no more attention to the aims set out in clause 53. They will not ignore those aims because they will always be in the mind of, and second nature to, the sentencer, but I assure the Committee that the amendment would be of no assistance whatsoever in securing proper sentences or treatment for young people, custodial or non-custodial—and I hope that, in the case of young people, they will be predominantly non-custodial.

From my experience, from the criticisms that have been expressed to me by those who are far more experienced than me in the practice of sentencing, from my understanding of the way in which legislation is, increasingly, being constructed in this House, and despite the Government's best intentions, as well as those of the two leading proponents of the amendments, I can assure them that they are barking up a tree that will produce no fruit.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

We have had an extensive debate, which has, arguably, lasted for five days with a short break. I have listened to hon. Members' views and it is even clearer to me now that it was last week that we are, in fact, discussing the direction that we want the youth justice system to take.

The hon. Member for Newry and Armagh (Mr. Mallon) underlined the binary option before us. One option is to continue in much the same vein as before. The other is to take a new approach, which regards youth offending as a symptom rather than a cause, and thus the solution as being much deeper and more profoundly connected with the treatment of the

human condition than clause 53(1) would imply. As the Minister rightly said, one can make the case that those considerations are incorporated in part 4, in which case we are arguing about a matter of emphasis, but that emphasis is crucial. If we apply the 20-year rule and ask what someone will think of the legislation in 20 years' time, I believe that they will naturally look at clause 53 to ascertain the principal intent of this part of the Bill. That is what I am asking the Committee to consider.

As I said last week, if young people are not treated fairly, with understanding and in a way that is appropriate to their age, and, worse still, if they are put into an unsuitable environment in which their educational needs are not met and their behaviour is not challenged but simply punished, I am sure that society will reap the results later and that it will cost more in the long run.

The principle underlying amendments Nos. 278 and 284, and the other amendments in the group, is that rather than giving passive consideration to such matters, one should actively commit to rehabilitation, on the assumption that it will reduce reoffending and aid the prevention of crime more effectively than discussing sentencing, as the hon. and learned Member for Harborough (Mr. Garnier) has just done. The emphasis in the United Kingdom has been wrong for a long time. I am sure that we would all agree that the paramount consideration is to protect the public, but I would argue that the best way to achieve that is by putting the rights of the child first and by measuring the success of our intervention from the change in crime rates.

The hon. Member for Hemel Hempstead (Mr. McWalter), who sadly is not here at the moment, made an interesting point. I asked the hon. Member for Newry and Armagh whether we did not want the strong propensity to offend to become a weaker propensity to offend. Yes we do want that, but putting it like that implies that we can somehow go straight to that point. We should consider the matter in another way. We want to turn a weak association with mainstream society into a strong one, so we should start at a different point and, rather than simply suppressing the desire to offend, we should nurture the desire to participate positively in society.

I return to the main point of the amendments. The hon. and learned Member for Harborough said some interesting things; he said that most crime was committed by youngsters, which is certainly an interesting statement, and that prison sentencing policy had changed. He talked a lot about sentencing, and we suggest that the kind of argument that he was making is exactly what the clause would lead Northern Ireland into. Amendment No. 278 would make us ask, instead, ''What do we have to do to stop young people from reoffending? How do we persuade an individual that he wants to play a constructive part in society?'' In that case, the requirement to suppress criminal tendencies would diminish.

The hon. and learned Gentleman said that the amendment was as useless as an early-day motion, which shows that this is not a moot debate. The

amendments are not as useless as an early-day motion, but suggest that we should handle Northern Ireland youth justice in a different way from how it is handled anywhere else.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I am breaching my own injunction to be brief by interrupting the hon. Gentleman, but I think that he may be confused. Of course, we want diversionary activities to prevent youngsters from offending, but the work of the youth justice system consists of catching people when they have committed offences. That is why I talked about sentencing, which does not have to mean sending youngsters to prison or young offenders institutions—it simply means dealing with them through the court system. Diversionary activities happen as much through education and parental guidance as anything else, and they should surely not have to happen through the youth justice system.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

In actual fact, the hon. and learned Gentleman has saved me time, because he lucidly described the choice that the Committee needs to make. If the Committee agrees that the youth justice system as described in the Bill should purely be concerned with what we do when young people have offended—and, on a secondary level, with what parents might have done to prevent the offence—it should vote against the amendment. If, however, like myself, my hon. Friend the Member for Cheadle (Mrs. Calton) and the hon. Member for Newry and Armagh, the Committee feels that the

''principal aim of the youth justice system in Northern Ireland is to . . . promote the child's reintegration and the child assuming a constructive role in society'',

as the amendment says, it must recognise that that view is not adequately represented in the clause. That is the choice that faces us.

I want to end by giving a practical example of why the Committee should agree with the amendments. I have had some association with an organisation called Youth at Risk, which has embodied and tested the concept of tough love. That sounds a bit woolly and namby-pamby—letting kids off the hook by loving them and hugging them, to make them better people. The organisation says, however, that rather than simply creating a mindset of criminality in offenders, such a strategy gets deep inside the motivations of offenders and gives them the option to choose a different route. The statistics that the organisation has shown me in terms of reoffence are absolutely phenomenal, showing a reduction in reoffending to a fraction of its normal level. Therefore, we can see evidence that the amendments would achieve the result that we all want, by protecting the public by preventing children from offending, and ensure that those children become constructive members of society.

The arguments have been presented. I respect the Minister's remarks and I hope that hon. Members understand that there is an important decision to be made on an issue of principle. For that reason, Mr. Conway, I hope that you will allow us to have separate votes on amendments Nos. 278 and 284. There is no

point in voting on the other amendments in the group, because all of the issues are adequately summarised by those two amendments. Now that we have had a constructive debate on the matter, I ask the Committee to consider what has been said and vote accordingly.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup 11:00, 12 Chwefror 2002

Order. Following the request made by the hon. Member for Montgomeryshire, I shall put the question on amendment No. 278 when the debate on this group has concluded. The Committee will have an opportunity to divide on amendment No. 284 after we have disposed of the next group of amendments. At that stage, I shall ask the hon. Member for Newry and Armagh to move that amendment formally.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 19.

Rhif adran 17 Adults Abused in Childhood — Clause 53 - Aims of youth justice system

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Question accordingly negatived.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

I beg to move amendment No. 224, in page 30, line 41, at end insert—

'(3A) A Guardian ad Litem will be appointed for the child in all cases where custody is a possible outcome of Court proceedings.'.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

With this it will be convenient to consider amendment No. 252, in Clause 57, page 43, line 25, after 'representative', insert 'or Guardian ad Litem'.

Amendment No. 259, in Clause 61, page 56, line 9, after 'solicitor', insert 'or Guardian ad Litem'.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

I shall try to be brief. Others have suggested that a guardian ad litem should be appointed in order to protect the interests of young people. Interestingly, I have a different perspective on the matter from that of youth groups in Northern Ireland, because I have chaired a local authority social services committee, and I was a teacher for the best part of the past 30 years.

The thrust of the Bill is wherever possible to move children into the care system rather than into custody centres. It could be argued that there is not a massive difference between some children in the care system and others in the criminal justice system. That is why we should protect the interests of young people facing custody, to ensure that at least one appropriately legally qualified person will protect their legal interests. As the Bill stands, all those persons and bodies are responsible for the welfare of the child, but no named person takes legal responsibility. In an ideal world, it would be sufficient for those persons and

bodies to take responsibility, but just as a child in the care system requires a guardian ad litem, so too, we believe, does the child taken into custody.

The United Nations convention on the rights of the child makes the point that children's rights require special protection. It states in the pre-amble that

''childhood is entitled to special care and assistance.''

Article 20 states:

''A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.''

Some will argue that such protection could be provided simply by appointing a solicitor. I hope that the Government understand that providing a solicitor who has no special training in the protection of children's interests would be a mistake. It would not be in the best interests of the child.

Providing a guardian ad litem in every case of possible custody would be expensive. However, as my hon. Friend the Member for Montgomeryshire said, if the Government do not spend the money up front, they will have to spend it eventually; and with children the money needs to be invested at an early stage. The education and the social care worlds are beginning to understand that principle. If the Bill does not recognise that children need special care at that stage, we will ultimately have failed to protect the rights of the child—and society will pay the price. What I say is based on my experience as a teacher and my rather more limited experience as a chair of social services.

There is not much more to be said on the matter. The principle will be either accepted or rejected. We may live to see the day, 30 years on, when what I fear will happen. I would like to think that we could deal with the problem in advance.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

In the first instance, I wish to make a slight technical point on amendment No. 224. It will not be the most important point that I shall make in the debate, but I cannot see how an amendment that addresses a matter of process sits well with a general statement on the overall aims of the youth justice system. However, although the amendment seems out of place, it does not detract from the point of principle that the hon. Member for Cheadle seeks to put before the Committee.

To some degree, the hon. Lady anticipates my response. It is the Government's position that the interests of a child subject to criminal proceedings should be properly represented by a lawyer of that child's choice. That facility will be available to all children subject to those processes under the Bill. In addition, the court will have available a pre-sentence report prepared by the probation officer, which will provide advice to the magistrates on the child's background and suggest the most appropriate outcome.

In those circumstances, the guardian ad litem scheme does not have a role. It provides an excellent service to young people in civil proceedings, most often when the interests of the child are not properly represented. The guardian ad litem in civil proceedings

is often appointed in cases involving disputes between adults, and the child is not a party to those proceedings. That is why it is necessary to have someone to represent the interests of the child. In criminal proceedings, the child is clearly a party to the proceedings and has proper representation.

Amendment No. 252 would permit the guardian ad litem to attend a youth conference, and to act instead of a legal representative as adviser to the child. Although we are keen to ensure that the legal representative attends conferences only in an advisory capacity, his advice will sit within the wider criminal context of the case. We do not believe that a guardian ad litem, whose primary role in all other cases is to advise the court, would necessarily be best placed to provide the child with the advice that they need in those circumstances.

Yesterday, I met representatives of the Law Society of Northern Ireland to discuss several matters related to the Bill. I am content that it accepts the responsibility to provide appropriate training to lawyers, so that they can make a constructive contribution to the new processes that we are putting in place. It realises that that is a significant challenge. Our discussion on that and other matters was constructive. I am content that properly trained lawyers will provide the necessary advice and support, in the best interests of the child and of all aspects of the process.

When a child is already in contact with a guardian ad litem because of other proceedings, it is likely that the guardian will have a role in sharing information with the conference. It will be open for the guardian to attend the conference under new paragraph 3A(8) of the Criminal Justice (Children) (Northern Ireland) Order 1998, which is proposed in clause 57.

We have a responsibility to ensure that the rights of the child are protected during the conference, and we feel that that will be best achieved by allowing the child to be advised by a legal representative. In the light of that, I ask the hon. Member for Cheadle to withdraw her amendment.

Amendment No. 259 seeks to ensure that, if a child is eligible for free legal aid, that legal aid covers the appearance of a guardian ad litem when he accompanies the child at a diversionary conference rather than a solicitor. In Northern Ireland, such guardians are paid by the Department of Health, Social Services and Public Safety. They are not eligible for payment from the legal aid budget, so the amendment is flawed and I ask the hon. Lady not to press it.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

I am somewhat reassured by some of the Minister's comments, and am prepared to accept that the legal profession will receive specific training to deal with aspects of the problem. Perhaps the Minister would reassure me now that the solicitors or legal representation appointed will be appropriately trained to deal with every case in which there is a possibility that the child will be placed in custody. If the Minister wants to intervene, I will be happy to let him.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I happily accept the hon. Lady's invitation. She will realise that whom a person

instructs is a matter for that person. It is incumbent on the Government to provide the appropriate support, if necessary, to the bodies that need to train their members. They have undertaken to provide that training, and will train solicitors with the necessary skills. The Government are not in a position to advise any individual child or adult who appears before criminal courts who they should or should not instruct to represent them. That is a matter of individual choice.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

Individual choice must be paramount, although in some circumstances it may not be in the best interests of the child for the full range of individual choice to be exercised. I accept what the Minister says, but I believe that children will fall through a gap. The system will not necessarily ensure that a child's best interests are represented. I hope that in all cases in which children come into contact with the criminal justice system, specialists who understand their specific needs fully and adequately represent them, but I am concerned that children will fall through the system. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 284, in page 30, line 41, at end insert—

'(3A) All persons with responsibility for the youth justice system shall have regard to the United Nations Convention on the Rights of the Child.'.—[Mr. Mallon.]

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 19.

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Question accordingly negatived.

Clause 53 ordered to stand part of the Bill.