Secure Training Centre (Amendment) Rules 2007

My Lords, I am deeply sympathetic to many of the points raised by the noble Lord, Lord Carlile, and I greatly respect the commitment that he has shown over much of his working life to the needs and concerns of young people in an institutional setting. I pay tribute to that. However, I take a slightly different view from him on this set of changes to the statutory rules. We need to dissect the problem a little more carefully, but I agree entirely with the noble Baroness, Lady Stern, that we need more transparency in the systems used, in order to create better public understanding and improved accountability. I shall say a bit more about that. I speak on this issue as someone who led the work on setting up the Youth Justice Board, which I chaired between October 1998 and June 2003. As an aside, when I left, the custody rates for children were falling, and I do not disagree with the noble Lord, Lord Carlile, that that sometimes changes the climate in some institutions. I was also a director of social services for six years and I have worked with, and seen at very close quarters, many of the troubled and troublesome young people in secure children’s homes, secure training centres and young offender institutions. The death of, or serious injury to, a child in any of these institutions is to be deeply regretted and is deeply saddening. We have to acknowledge that it is very saddening to many of the staff. It is easy to portray staff as callous in these circumstances, and I want to say a little more about the job that they do. I have talked to many children in these facilities and have seen their care close up. I agree with the noble Lord, Lord Carlile, that, if we have a review, it is very important that we hear what they have to say and that we consult them about their day-to-day experiences of the regimes. Only in that way will we improve the regimes in these institutions. However, we must recognise that most young people in secure training centres have deeply disturbing histories and very often were out of control in the settings in which they were living before they entered the STCs. Some—perhaps as many as 20 per cent—have a long history of violence towards others and, indeed, towards themselves through self-harm. In my experience, the staff are usually dedicated but, of course, they are not saints. I acknowledge that there are some rogue staff, but the same is true in police custody suites, secure children’s homes and YOIs. Some rogue staff will be found in many of these settings. I do not say that with any satisfaction, but it is the reality that we face. In my experience, most staff are usually dedicated, but they can be provoked by the children. Equally, I acknowledge that a minority of staff provoke the children, just as some prison officers provoke prisoners. In a closed institution, it is not unusual to see that kind of behaviour on occasion. That is why we have staff rules and staff disciplinary procedures, and we have to be robust in applying them. Some of us have had to sack people who abuse the duty of trust that they bear when they take on these jobs. This does not mean that we do not need this change. I shall not try to defend the process by which we have reached this statutory instrument; I do not know enough about it and I am perfectly prepared to accept the argument of the noble Lord, Lord Carlile, that it could have been done a lot better. However, I do not accept that we do not need to clarify the legal responsibilities of staff working in these institutions, and that is what this measure does. It does it in response to the inquest into the sad death of Adam Rickwood. In considering the merits of this rule change, we need to go back a little in history. When the Youth Justice Board was set up in 1998, it was given responsibility for commissioning places for young people who needed to be detained in secure children’s homes, STCs and young offender institutions. It was not given responsibility for running these facilities, but it did set standards. One of the most difficult issues it certainly wrestled with when I was involved with it is this area of physical control and constraint. One of the long-standing problems has been that there are different systems in operation in the three establishments where the Youth Justice Board commissions places, but the board has no legal responsibility for physical control and constraint. The Home Office and the Home Secretary have continued to retain responsibility for PCC in secure training centres. Rule 38 of the Secure Training Centre Rules, made in 1998, makes clear that young people can be restrained only in circumstances and using methods approved by the Home Secretary, not the Youth Justice Board. In practice, the Prison Service training college has continued to fulfil the Secretary of State’s function of training STC staff in methods of constraint approved by the Home Secretary on advice from the Home Office juvenile offender unit. We need to be clear where responsibility has lain in this area. However, the STC rules do not explicitly permit STC staff to use reasonable force to maintain good order and discipline in STCs; nor do they allow the YJB to intervene in this area. This statutory instrument will allow the staff of STCs to use physical intervention as a last resort to maintain good order and keep staff and residents safe and secure. I believe it is reasonable to put that point beyond legal doubt so that STC staff can use physical restraint as a last resort to maintain order in establishments which, we have to recognise, have a substantial number of residents with a potential to engage in disorder that is dangerous to themselves and others. That is, after all, what the coroner presiding at the inquest into the tragic death of Adam Rickwood was seeking. The question then for consideration is whether there are sufficient safeguards in place to deal with the potential misuse of that clarification of legal authority for staff. Here I take a different view from some people in the debate, although I have some continuing concerns that I wish to leave with my noble friend about the position in which the Youth Justice Board is left. Nothing in this specific change in this order makes it more or less likely that STC staff will abuse young people in STCs. Unjustified use of force by staff remains an assault. The evidence suggests that the use of restraint in STCs is, if anything, a little lower than in secure children’s homes. In my view, nobody associated with the Youth Justice Board supports the use of force simply to secure compliance with instructions such as bedtimes. The YJB's own code of practice makes explicit that restraint should always be used as a last resort and never as punishment. Physical control and constraint has been developed specifically to avoid relying on pain to manage the behaviour of young people. However, there are extreme circumstances where staff are permitted to use a sharp burst of pain to the nose, thumb or rib where all other attempts to control a young person have failed and a serious situation is developing, or has developed, that has a material impact on the running of a centre. I acknowledge that judging in particular instances whether reasonable force has been used can be difficult, but the central proposition under which staff are operating does not seem unreasonable. Sometimes staff are dealing with volatile situations where they could easily lose control if matters are allowed to escalate. Clarifying legally their ability to retain control is essential. Let us reflect on the alternative, which is to allow the situation to get out of control and to have to call in the police or the Prison Service to put down a riot. That is the alternative unless we allow staff legally to use judgment in handling particular situations. I do not think that the alternative is a road down which any of us want to go, in the best interests of children. However, I have some concerns that I ask my noble friend to consider with some urgency and report back on to Parliament. They relate to the legal accountability in the area of physical control and constraint. As I have said, the Youth Justice Board has no legal responsibility, but people seem to assume that it has. There are different arrangements for PCC in different establishments for which the Youth Justice Board contracts the services—secure children's homes, STCs and young offender institutions. The YJB has no clear legal responsibility in relation to PCC in those areas. It has used its general duty of care—wisely, in my view—as the legal basis on which to issue a code of practice. However, its ability to ensure that staff are trained in what it regards as good practice is constrained by its legal position. That is not satisfactory and led to legal confusion in the tragic death of Gareth Myatt in April 2004 in an STC. The coroner’s inquest seems to have been wrongly informed by lawyers acting for the Government that responsibility for advising on physical constraint had been transferred to the Youth Justice Board. It has not. It has remained with the Home Secretary and is now still with the Secretary of State for Justice. It is a Minister and a department, not the arm’s length Youth Justice Board, who make the rules in this area. It is not a shared legal responsibility. It is my view that the Youth Justice Board has always been in an unenviable position in this area. That is why it has expressed its concern about that in the past. I feel that I ought to say that in this House, because it is jolly difficult for the Youth Justice Board to say so itself. An urgent review by the Ministry of Justice is required to put the accountability for physical control and restraint, including methods and training of staff, in the three areas for which the YJB has contractual responsibilities, on a much clearer legal basis. Personally, I have some reservations about the nose technique, which has been mentioned. There are certainly issues about the variable systems of training for staff working in those three different types of facilities, but we should not just concentrate on STCs if we want to improve training of staff looking after many vulnerable children. I ask my noble friend to consider an urgent review with his ministerial colleagues. Subject to that consideration, I support the order as a proper way to protect staff in STCs in the difficult job that they do on behalf of us all.