'(1) It shall be the duty of—

(a) the governor or controller of any institution in which persons under the age of 18 years are detained pursuant to a conviction, and

(b) any person who is responsible for the detention of any such young persons,

to safeguard and promote the welfare of such young persons.

(2) Where a young person under the age of 18 years is detained the local authority in whose area the young person is detained shall take such steps as are reasonably practicable to enable them to determine whether the child's welfare is adequately safeguarded and promoted.

(3) Where a local authority is of the opinion that there has been a failure to comply with subsection (1) in relation to a child detained within their area they shall notify the Secretary of State.

(4) Any person authorised by a local authority may, for the purpose of enabling the authority to discharge its duties under this section, enter at any reasonable time any place within its area in which young people are detained.

(5) Any person who intentionally obstructs another in the exercise of any power conferred by this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.'.—[Mr. Allen.]

Brought up, and read the First time.

Mr. Graham Allen (Nottingham, North):

I beg to move, That the clause be read a Second time.

My hon. and learned Friend the Member for Redcar (Vera Baird) and my hon. Friend the Member for Wrexham will, I have no doubt, speak much more eloquently than I can to the new clause. I wish to refer Committee members to the briefing paper sent to them by the Howard League for Penal Reform on the need for a clear duty to safeguard and promote the welfare of young persons. I will now let my colleagues speak.

The clause comes from a test case taken by the Howard League against the Home Secretary. It challenged the Home Office position in a Prison Service order that the Children Act 1989 did not apply to people under 18 in prisons. The judge said that it did apply to children in prison and that Prison Service order 4950 was wrong. Subsections (2) to (5) of the new clause are consequences of that judgment. If children in prison are subject to the Children Act, their rights can be enforced only by local authorities, and their welfare safeguarded though children protection and child in need procedures. If the local authorities are to carry out those statutory duties for children, they must have the right to enter prisons.

Although the Children Act applies to children in prison because of that judgment, it does not apply to the Prison Service, which means that, unlike the local authority, it does not have a clear statutory duty to safeguard the welfare of children. Although the judge in that case was right to praise the Prison Service order, finding it wrong in only one particular, there is no doubt that since the creation of the Youth Justice Board and the secure estate for juveniles, conditions have greatly improved. However, there are still some practices in prison that should not occur, and could not occur if it were made clear that the Prison Service is subject to the Children Act 1989. Such practices include the use of solitary confinement, segregation and control and restraint methods. Some young offenders institutions still punish children for days in special cells, where there is no furniture, no natural light and the children do not have any clothes, only a jacket and a blanket.

Of course, it is only the most difficult children who end up in such cells, but they are almost certainly also the most damaged children. Such practices might constitute abuse in any other institution, such as a home, secure training centre or local authority secure unit, yet they continue, despite the Prison Service order, which the judge praised for its child-friendly language, despite the eye of the Youth Justice Board and despite the Human Rights Act 1998. The new clause offers a means by which the Government can specifically enact that the welfare of children in prisons is paramount.

As the hon. and learned Lady knows, I have considerable sympathy with the thrust of the new clause. There is no doubt that the inability of prisons or other young offenders institutions to comply with the Children Act 1989 is a major cause for concern. The 1989 Act lays down what many people regard to be standards. It is true that some of the children and

young people who have to be detained are exceptionally difficult and one can easily see from the examples that she cited why compliance sometimes cannot be achieved. It is over-optimistic to expect that we can impose the 1989 Act on such institutions when the particular problems that they face may make it impossible for them to comply with it. It is also over-optimistic to expect them to change their practices overnight to meet those standards.

It would be useful, however—I should be interested to hear the Minister's view on this—if the annual report produced by a young offenders institution were to detail the extent to which it had complied with the 1989 Act and stated which of its practices did not comply, giving specific instances and reasons. That could be useful in highlighting the real nature of the problem for Parliament and for the public and might be of assistance in finding a way forward to ensure that, in the long term, we succeed in achieving the goal identified by the hon. Member for Nottingham, North.

I congratulate my hon. Friend the Member for Nottingham, North on raising such an important issue, which highlights the anomalous position of young people whose level of support differs according to which institution they are in.

I want to query one or two terms of the new clause. It states:

''It shall be the duty of—

(a) the governor or controller of any institution in which persons under the age of 18 years are detained''.

Most young people are already covered by legislation and the new clause does not highlight the specific concern of young people in prison. As I mentioned when we debated a previous reference to young people in custody, in my capacity as chair of Lancashire social services committee, I had a duty under the Children and Young Persons Act 1933 to visit any young person in the care of the local authority to determine whether the secure order under which they were placed was appropriate and whether their placement was appropriate. In that capacity, I visited some young offenders institutions. Do different young offenders institutions apply different rules?

Under the Children and Young Persons Act 1933, responsibilities were consolidated and added to because not many local authorities carried out their responsibilities. It gave more responsibility to elected members of the authority rather than officers. We must ensure that young people are properly visited and supervised and that their welfare needs are taken into account, especially those in prison or in young offenders institutions that may not allow local authority representatives to visit.

Subsection (2) states:

''the local authority in whose area the young person . . . is detained . . . shall take such steps''.

It has always been the case that the home local authority has ongoing responsibility for young people, whether they are placed with foster carers, in a children's home or in secure accommodation. I am worried that there could be dramatic resource

implications for the local authority. Will my hon. Friend the Member for Nottingham, North and the Minister take that into account?

I welcome subsection (4). I assume that it refers to the practice of independent people visiting young people. Prison visitors regularly visit prisons, but under the 1989 Act, independent visitors have a special role in the welfare of young people. I welcome the thrust of the new clause, although the details need to be examined more closely. In conclusion, however, I would far rather not see young people in prison. We would then not even be considering such a new clause.

I, too, congratulate the hon. Member for Nottingham, North on tabling the new clause. It is clear that the problem is not the intention of the Prison Service but the practice within institutions. I refer to the Child Bench. Mr. Justice Munby made a case for Prison Service order 4950 when he said:

''humanity and regard for the dignity of the children in YOIs shines through on every page''.

The issue is about what happens to children when they are in such situations, and it is that which the chief inspectors' reports have drawn attention to in the most damning way. It is a matter of concern. Justice Munby said that the chief inspectors' reports

''shame us all . . . They ought to be—I hope they are—matters of the very greatest concern to the Prison Service, to the Secretary of State for the Home Department and, indeed to society at large. For these are things being done to children by the State—by all of us—in circumstances where the State appears to be failing, and in some instances failing very badly in its duties to vulnerable and damaged children.''

Never mind the intentions, that is a serious indictment of the practice. I hope that the Minister recognises it as a serious criticism of what is still within his Department's purview. If the new clause does something to mitigate the circumstances of young offenders, it should be strongly supported. If the answer to the problem is training, resources or changing the regime within our institutions, I hope that he will give the Committee a categorical assurance that that will be done without delay, because the circumstances about which we have heard cannot be allowed to continue.

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

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.

Sitting suspended for a Division in the House.

On resuming—

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

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.

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.