1 In this Schedule "the 1991 Act" means the Criminal Justice Act 1991 (c. 53).

2 In section 42 of the 1991 Act (additional days for disciplinary offences), in subsection (2) before the word "and" at the end of paragraph (a) there is inserted—

"(aa) any period which he must serve before he can be removed under section 46A below;".

3 (1) In section 46 of the 1991 Act (persons liable to removal from the United Kingdom) in subsection (3) after paragraph (d) there is inserted "or

(e) he is liable to removal under section 10 of the Immigration and Asylum Act 1999".

(2) Sub-paragraph (1) does not apply to any prisoner whose sentence relates to an offence committed before the commencement of this Schedule.

4 After section 46 of the 1991 Act there is inserted—

"46A EARLY REMOVAL OF PERSONS LIABLE TO REMOVAL FROM UNITED KINGDOM

(1) Subject to subsection (2) below, where a short-term or long-term prisoner is liable to removal from the United Kingdom, the Secretary of State may under this section remove him from prison at any time after he has served the requisite period.

(2) Subsection (1) above does not apply where—

(a) the sentence is an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000,

(b) the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995,

(c) the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983,

(d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or

(e) the interval between—

(i) the date on which the prisoner will have served the requisite period for the term of the sentence, and

(ii) the date on which he will have served one-half of the sentence,

is less than 14 days.

(3) A prisoner removed from prison under this section—

(a) is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by—

(i) Schedule 2 or 3 to the Immigration Act 1971, or

(ii) section 10 of the Immigration and Asylum Act 1999, and

(b) so long as remaining in the United Kingdom, remains liable to be detained in pursuance of his sentence until he falls to be released under section 33 or 35 above.

(4) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 33, 35 or 36 is exercisable in relation to him as if he were in prison.

(5) In this section "the requisite period" means—

(a) for a term of three months or more but less than four months, a period of 30 days;

(b) for a term of four months or more but less than 18 months, a period equal to one-quarter of the term;

(c) for a term of 18 months or more, a period that is 135 days less than one-half of the term.

(6) The Secretary of State may by order made by statutory instrument—

(a) amend the definition of "the requisite period" in subsection (5) above,

(b) make such transitional provision as appears to him necessary or expedient in connection with the repeal or amendment.

(7) No order shall be made under subsection (6) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

(8) In relation to any time before the commencement of sections 80 and 81 of the Sexual Offences Act 2003, the reference in subsection (2)(d) above to Part 2 of that Act is to be read as a reference to Part 1 of the Sex Offenders Act 1997.

46B RE-ENTRY INTO UNITED KINGDOM OF OFFENDER REMOVED EARLY FROM PRISON

(1) This section applies in relation to a person who, after being removed from prison under section 46A above, has been removed from the United Kingdom before he has served one-half of his sentence.

(2) If a person to whom this section applies enters the United Kingdom at any time before his sentence expiry date he is liable to be detained in pursuance of his sentence from the time of his entry into the United Kingdom until whichever is the earlier of the following—

(a) the end of a period ("the further custodial period") beginning with that time and equal in length to the outstanding custodial period, and

(b) his sentence expiry date.

(3) A person who is liable to be detained by virtue of subsection (2) above is, if at large, to be taken for the purposes of section 49 of the Prison Act 1952 (c. 52) (persons unlawfully at large) to be unlawfully at large.

(4) Subsection (2) above does not prevent the further removal from the United Kingdom of a person falling within that subsection.

(5) Where, in the case of a person returned to prison by virtue of subsection (2) above, the further custodial period ends before the sentence expiry date, subsections (1) and (2) of section 33 above apply in relation to him as if any reference to one-half or two-thirds of the prisoner's sentence were a reference to the further custodial period.

(6) If a person returned to prison by virtue of subsection (2) above falls by virtue of subsection (5) above to be released on licence under section 33(1) or (2) above after the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, section 37(1) above has effect in relation to him as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of his sentence.

(7) If a person who is released on licence under section 33(1) or (2) above at the end of the further custodial period is recalled to prison under section 39(1) or (2) above, section 33A(3) above shall not apply, but it shall be the duty of the Secretary of State—

(a) if the person is recalled before the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, to release him on licence on that date, and

(b) if he is recalled after that date, to release him on the sentence expiry date.

(8) A licence granted by virtue of subsection (7)(a) above shall remain in force until the sentence expiry date.

(9) In this section—

"further custodial period" has the meaning given by subsection (2)(a) above;

"outstanding custodial period", in relation to a person to whom this section applies, means the period beginning with the date on which he was removed from the United Kingdom and ending with the date on which (but for his removal) he would have served one-half of his sentence;

"sentence expiry date", in relation to a person to whom this section applies, means the date on which (but for his removal from the United Kingdom) he would have served the whole of this sentence."

On Question, amendment agreed to.

Schedule 19 [Determination of minimum term in relation to mandatory life sentence]:

moved Amendment No. 225B:

Page 290, line 25, leave out from "orientation" to end of line 28 and insert "if it is committed in circumstances falling within subsection (2)(a)(i) or (b)(i) of section (Increase in sentence for offence aggravated by reference to disability or sexual orientation)."

On Question, amendment agreed to.

moved Amendment No. 225C:

Page 290, line 29, at end insert—

"Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate."

My Lords, having regard to what the noble Baroness said, I have quite a simple task. She has maintained that I have all that I need to give the judges what I have asked for in my amendment; that is, that Schedule 19 should begin with the statement:

"Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate".

It is clear that the noble Baroness, Lady Anelay—who has not been able, no doubt for good political reasons, to support quite a number of my amendments—was unconvinced that by putting a reference to discretion in paragraphs 7 and 8 of Schedule 19, the discretion which the noble Baroness, Lady Scotland, emphasised the judge has is properly catered for. As the noble Baroness has confirmed that these two paragraphs provide that discretion, surely she can have no objection to making clarity, which she says exists, doubly clear by having this stated at the outset of the schedule. It cannot harm her in any way. She says that the discretion is there. It cannot in any way detract from her submissions. All it does is to transpose paragraphs 7 and 8 into the opening phrase of my amendment. If she does not agree to do that, it seems to me that paragraphs 7 and 8 will merely turn out to be a provision that obliges the judge to comply with the excessive sentences alleged to be minimum sentences in the schedule, and that is contrary to the justice of the position. I beg to move.

My Lords, the noble Baroness has stressed over and over again, both in Committee and a short time ago, that she seeks clarity and transparency. If so, she should be able to answer my question with a "Yes" or a "No". Is there anything in the schedule which fetters a judge's own discretion in an individual case to set the tariff he thinks is appropriate?

My Lords, if the noble Baroness says that in her view there is a discretion, what is wrong in writing that fact on the face of the Bill? We had the same argument at an earlier stage. The danger is that whatever she may say about them being starting points, the press, for one, will look on them as minimum sentences and comment on the sentences passed in that way. I hope that the noble Baroness will agree on this occasion with what the noble Lord and learned Lord, Lord Ackner, is saying.

My Lords, clarity is all important in my view. I gave the Government the benefit of the doubt when I voted on the last amendment. On this occasion, I do not know why my noble friend cannot accept the amendment moved by the noble and learned Lord, Lord Ackner. It puts the matter beyond any peradventure. Personally, I should have thought that that was highly desirable.

My Lords, judicial discretion is at the heart of good sentencing. I have recently returned from the United States. There the Attorney-General is seeking to inhibit judicial discretion. A similar debate is taking place. The senior judiciary of the Supreme Court of the United States is of one voice in its concern about this undermining of justice. So I hope that we shall hear clearly—and without any doubt—the Minister say in answering this amendment that judicial discretion is not being interfered with and that at the end of the day that is what should guide judges when sentencing.

My Lords, in the case of Pepper v Hart the Law Lords decided—wrongly I think, but that is beside the point—that in resolving any ambiguity or doubts about the meaning of a statute one could have regard to what the Minister had said. The Minister here has said that paragraphs 7 and 8 produce complete discretion. Are we now to have a position of someone outside saying, "Well, we know she said that there was complete discretion, but are we right in remembering that she would not accept an amendment which said exactly the same thing?"? Where will that leave us all?

My Lords, I have listened very carefully to the arguments on the previous amendment. I heard the views of my noble friend Lord Clinton-Davis. I also gave the Government the benefit of the doubt. I have not so far intervened in the debate, but it seemed to me that the Minister made a most persuasive case to underline the fact that discretion existed. My experience of the judiciary is much more limited; I was only a mere recorder for a period of 20 years. I endorse fully the remarks we have just heard. It is of vital importance that discretion is spelled out on the face of the Bill if that is what the Minister intended in her remarks on the previous amendment.

My Lords, my short answer is that paragraphs 7 and 8 spell out discretion on the face of the Bill. However, that discretion, as with discretion in other cases, is to be exercised within the framework and in accordance with the law. No judge has an unfettered discretion to do whatever he pleases; he must apply the law as set out in statute. The statute here is plain.

The judge must use the starting point as the judicial starting point. He then has to look at the mitigating and aggravating factors. I shall read paragraphs 7 and 8 if it assists for Pepper v Hart and other purposes. Paragraph 7 states:

"Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point".

The starting point is set out in paragraphs 4, 5 and 6. Those provisions refer to the matters a court should take into consideration when arriving at that starting point. Paragraph 8 states:

"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".

The provision is there on the face of the Bill and available to be used. I know and hear what the noble and learned Lord, Lord Ackner, says about his chosen preference.

My Lords, I am very grateful to the noble Baroness for giving way. Is she agreeing that the current position today is what the future will also show? The current position today is that of course a judge does not have an unfettered discretion. Guidelines have been provided by the Court of Appeal. He must have regard to those guidelines. If he imposes a sentence that is, so to speak, repugnant to those guidelines the Court of Appeal, at the suit of the Attorney-General, will then put in force the sentence the judge should have imposed. That is the position today. Is the noble Baroness saying that from a discretionary point of view that is still unaltered?

My Lords, it is unaltered, save and except that the guidelines which will bind the judge are contained in the statutory framework which is here in outline. So the framework the court will have to apply is the statutory guidelines contained in Schedule 19. It is not the currently issued guidelines, because of course the whole point of Schedule 19 is to supplement the position because of the change brought about by Anderson. Your Lordships will recall that prior to that case the Secretary of State preserved an ability to alter the tariff imposed. As a result of Anderson that ability for the will of the people, as expressed through their elected Member, has gone. Therefore, it is for Parliament to decide the framework within which that exercise of discretion on behalf of the people of this country by the judiciary on individual cases should be set.

So this is the framework; these are the guidelines. The noble and learned Lord is absolutely right that within the framework, within the statutory guidelines, the judge will still have the duty to exercise his or her discretion in accordance with the needs of the circumstances of the case. Within the guidelines, if judges are minded to depart from the starting points, they will have to state why they have done so. We believe that that will enable all who come to consider the judge's decision better to understand the route that he was taking.

I also tell noble Lords that we hope—I know that this is an aspiration—that that may limit or hamper the ambit of ill-informed, misjudged comment about why the court reached its decision. I invite the noble and learned Lord not to press his amendment.

My Lords, the inability or unwillingness of the noble Baroness to accept the terms of my amendment suggests to me that there is an arriere-pensee in relation to the whole of Clauses 7 and 8. In those circumstances, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 225C) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 115.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 226 not moved.]

moved Amendment No. 227:

Leave out Schedule 19.

My Lords, I ask your Lordships to say that they are not content for Schedule 19 to remain part of the Bill and I shall be inviting noble Lords to use the Not-Content Lobby when the vote takes place. Often mistaken and enthusiastic noble Lords keep up the old business of going to the wrong place by mistake.

Schedule 19 is, in the words of the noble Lord, Lord Windlesham, "sentencing by ministerial decree". It is the result of an angry, frustrated action by a Home Secretary who did not understand the requirements of the rule of law. When, in November 2002 the case of Anderson was decided in the Judicial Committee by reason of the human rights legislation, the Home Secretary no longer had any role to play as a politician in deciding how long someone should stay in prison. That is something that this House had been saying year in and year out. As a result, there was an intemperate outburst—

My Lords, I am most grateful to the noble and learned Lord for allowing me to intervene. Perhaps he has confused the Report stage and the Committee stage. The Motion that he is moving is to leave out the schedule, in which case he would wish to vote Content. That would remove the schedule, which has already been agreed.

My Lords, I am sorry, but I cannot agree. This is a Motion to persuade the House that they are not content in the continuation of Schedule 19. Perhaps the noble Lord would be kind enough to confirm that I am right because he is so much more experienced than I.

My Lords, I doubt that, but with some reluctance I have to say that I think the noble and learned Lord is wrong. The proposal set out in his amendment is to leave out Schedule 19. I understand what he seeks to do, but he is moving to leave out the schedule and therefore he should advise people to vote Content on that proposal.

My Lords, very well. I am always happy to learn from my elders and betters, or perhaps I should say "betters". In those circumstances, I invite noble Lords to go on being content with everything I submit, as has happened in the past.

I was saying to noble Lords that there was an intemperate outburst by the Home Secretary, demonstrating that he had not understood how the rule of law works. That was exacerbated by a ruling in relation to the lawfulness of an immigration law or order which he had promulgated.

The history of this situation bears a little repetition. Your Lordships will know that the sentencing guidelines were in effect invented by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, advising judges on the way of viewing offences according to their nature and providing a set of brackets within which they could consider imposing a sentence, lowering or raising it according to mitigation or aggravation. The judiciary has shown no reluctance to accept assistance and in 1998 the Crime and Disorder Act was passed. That legislation brought into existence the Sentencing Advisory Panel. By that Act, the panel investigated, researched and sought advice from the public. It consisted of a variety of disciplines—although with very few, if any, lawyers—and provided guidance.

The Court of Appeal, which was then laying down sentencing guidelines, was obliged to take into account what was proposed by the panel. If the Court of Appeal itself had been contemplating taking the initiative of laying down guidelines, it would have to consult the panel. That worked smoothly and satisfactorily over a period of some four years, by which time the Court of Appeal had accepted the advice of the panel and imposed the necessary decision on 10 different species of offences.

In 2002, one year before the schedule was produced, the panel made suggestions with regard to what were the appropriate sentencing guidelines for murder, the offence to which Schedule 19 is directed. The Court of Appeal had regard to that advice and was minded to accept it, but first consulted with the Attorney-General, the Lord Chancellor and the Home Secretary, the very one responsible for Schedule 19. They made very minor alterations, which were accepted, and the guidelines were introduced via a practice direction given by the Lord Chief Justice. Everything proceeded swimmingly until the angry reaction of the Home Secretary produced Schedule 19.

It is perhaps worth breaking off at this stage to recall the "holier than thou" homilies to which the public have been treated by the Home Secretary on how to put back trust in the Government; on how essential it was for any government to work effectively to have that trust. The Home Secretary said that the only way to do that was to be "patently honest". Your Lordships may not think that the history I have outlined fits very happily into that expression.

The schedule purports to lay down minimum starting points, and they are at least 50 per cent in excess of the guidelines in the Lord Chief Justice's practice direction. In the period of the year between the Court of Appeal's guidelines and the emergence of Schedule 19—Schedule 17 as it was previously—nothing occurred to suggest that the guidelines which were being followed pursuant to the Lord Chief Justice's practice direction were in any way proving inadequate, not being followed or had any disadvantages about them. On the contrary, it all went swimmingly.

The proposed 50 per cent increase will obviously have an effect, but the Home Secretary has limited his attention to the effect it will have in 10 years time, when the murderers with whom one is concerned would be coming out from prison but for the fact of the 50 per cent increase. He has totally overlooked the fact that sentencing guidelines have to be consistent, and if you up by more than 50 per cent the sentence for murder, you have got to do the same with all other serious offences. There is no question about waiting 10 years for that to happen; that will have to happen forthwith. The effect that will have on the demands on prison accommodation will be disastrous. The schemes to add currently to prison accommodation will be swamped and the position will be quite impossible.

So there has been produced this oddity. Parliament purports to set up the Sentencing Guidelines Council in the Bill—which we considered recently—and then the Home Secretary has pre-empted the Sentencing Guidelines Council by saying, "Before you begin to operate, I will tell you what has to be done in regard to murder cases, and what I am going to tell you will involve the whole of the sentencing pattern which has existed up until now being distorted". It will be distorted by this extraordinary increase.

That is why I suggest that the situation created by Schedule 19 requires the robust action of taking out the entire schedule. Only thus can one return to what Parliament initially proposed—the Sentencing Guidelines Council laying down what should be the appropriate sentences. It is only thus that one can prevent this extraordinary distortion, the result of a distorted approach to the two decisions to which I have referred. For those reasons, I beg to move my amendment.

My Lords, I have added my name to the amendment. The justification for Schedule 19, we have been told, is that it introduces clarity and transparency in the sentencing process in a way, it is implied, that does not exist at the present time. To illustrate how the practice and procedure of the law develops over a period of time, I should tell your Lordships that when I was first at the Bar it was utter anathema then for prosecuting counsel to talk to witnesses, whether or not they were victims. It was almost a professional foul to do so. I entered at the end of a long tradition where the leading counsel for the defence in a murder case did not speak to his client at all. He communicated with his client through junior counsel and received his instructions from the solicitor. I was a junior to a somewhat elderly silk who took that view and did not speak to his client from start to finish of the case.

Things have moved on dramatically. Over the past 50 years or so it has been customary for leading counsel for the defence in a murder case to have lengthy consultations with his client. In very recent years—within the last two or three—it has become appropriate to talk to defence witnesses. There is now a duty laid upon prosecuting counsel to talk to victims, their families and witnesses. It is quite the reverse. At the beginning of my career, the rationale was that counsel appearing at the Bar would be removed entirely from the emotion of the case and would conduct it with all the forensic skill that they had, unclouded by the views that were pressed upon them by either the prosecution witnesses, the victims or the defence.

We have a position today where it is the positive duty of prosecuting counsel to explain to a victim, family or witnesses why the judge has done what he has done. The noble Baroness told us that she was an officer in, or played a part in, an organisation that is concerned with victims. She said that they do not understand why a particular sentence has been passed. Victims will never really understand why a certain sentence has been passed—particularly in a murder case—at the end of the trial because they are overwhelmed with emotion for what has happened.

So let us consider Schedule 19, which we are now told lays down statutory guidelines. I made the same point in Committee as the noble and learned Lord, Lord Ackner, made a moment ago when I said that it was an oddity that we should have statutory guidelines for fixing a tariff in the same Bill that sets up the Sentencing Guidelines Council. It is curious that the Government have not waited to hear what the deliberations of that council are before setting what the Minister describes as "sentencing guidelines". However, it goes beyond that.

What is now proposed is that the judge should take a mechanistic approach to sentencing. He has the Bill in front of him, which contains a tick-list or shopping list of aggravating and mitigating factors. He ticks them off, asking himself whether he has considered this or that. What on earth do the Government think that a judge does at the present time other than to consider all the aggravating and mitigating factors as they appear to him in a case? What else is he there for but to consider the facts of the case, the circumstances in which the crime was committed and the personal circumstances of the defendant before he sets his tariff?

Why must we put that process into a straitjacket, as I described it in Committee—a tick-list to put into statutory form what anybody making a decision would do anyway? Taking any important decision in one's life, one will set up the factors in favour of the decision on the one side and the factors against it on the other, and come to a conclusion. If one was forced by a statute before one took out one's mortgage to consider one's wages, one would think it ludicrous to be placed in a straitjacket of that sort.

The other aspect of Schedule 19 about which the Government are being very vague is the purpose of the "starting point". They do not call it the "norm", so that sentences would be either larger or smaller but the average would be somewhere around the norm—they call it the starting point. If the Minister, as I hope she will be, is to be followed on the Pepper v Hart principle after the debate we had recently about young people, we learned that one can start by taking anything up to four or five years off for the youth of the defendant. If the starting point is supposed to be a norm, it has suddenly shifted down just because of age to 10 or 11 years. Then one starts from there, taking into account other aggravating or mitigating factors. That is the sort of explanation that we had from the Minister.

I believe that behind the interference in the sentencing process in the schedule—and the oddity of guidelines being promulgated by the Government in statutory form before their own Sentencing Guidelines Council comes into operation—is a future excuse for politicians. When a judge passes a sentence that causes an outcry in newspapers, they can say, "Look at our Bill; just have a look at what we said was the starting point. The judge has gone berserk and ignored it!" An excuse is being built in for the Government to explain away decisions that are not attractive to the public—as appears in the tabloid press.

Since prosecutors today are under the duty to explain to victims and their families why a sentence is passed, why are they not allowed to get on with doing that, while listening to the judge's sentencing remarks? The judge does not simply say, "I pass a life sentence, the tariff is 12 years"—he gives his reasons. Why do we not allow the present system to continue, and throw this political device into the dustbin? I know that there is a certain reluctance on the part of the Front Bench of the official Opposition to go along with throwing the proposal into the dustbin, and I understand their difficulties. But surely, on all sides of the House, we ought to walk into the Content Lobby when the Division is called.

My Lords, I support the noble Lord, Lord Thomas of Gresford, in everything that he says, and I shall not repeat it. However, I add one other point. One trouble with primary legislation is that it can never keep up with the times. At the moment—and here I show my bi-partisanship—starting with Michael Howard as Home Secretary and carrying on with the present Home Secretary, we are on a sort of wave of increased custodial sentences. That will not go on; there will be a reversal of the wave, and we will then be hung up on a statutory provision that there is no time to amend. This is not the place for a statutory provision—the Sentencing Guidelines Council is the place for that.

My Lords, I pick up on the refrain of the noble and learned Lord, Lord Donaldson, that this process has happened in the past decade. We have seen the politicisation of criminal justice and we have seen law and order become an auction. It is the source of regret to me tonight that that auction is displayed by the reticence of those on the Opposition Benches. For fear that the public might see a party in any kind of retreat from parts of the Bill as being soft on crime, people are not standing up to be counted. That is regrettable.

The noble and learned Lord, Lord Donaldson, said that these things go in waves. My concern is that the wave may ride for a very long time yet. When one has politicised criminal justice and law and order, one ends up having a ratcheting up of sentencing because each party wants to be seen as tougher than the other. I know that there is not an awful lot of space to the right of Mr Blunkett, but I am sure that efforts will be made to find that space.

I am worried that we shall see not a swing of the pendulum away from heavier and heavier sentencing, but more and more of it. My regret about that policy is that we know that it does not work. When my noble friend on my Front Bench says, "Every time I speak to a member of the public, they tell me that this is what they want", I say to her, to her noble friends on this Front Bench and to those in the other place that the role of Government is to lead. It is not simply to listen to what the public says, especially on sentencing, but to say, "Hold on a minute, let's have more discussion on the subject and see whether it's really what you want". I have said in this House a number of times that what politicians should do is make the political weather. That is not done by polling or soundbites or by going to the public and asking, "How does this go with you?"—because then one hears precisely what is reflected in the Bill. We in these Houses should do better than that.

I regret considerably that we are going down this road, and I stand with the noble and learned Lord, Lord Ackner, in expressing my concern that we are seeing interference with judicial discretion. As a follow-on from that, we shall see more and more over-crowding in our prisons and more punitive measures. That should be a source of shame to us all, on all sides of the House.

My Lords, I should like to ask the Minister to deal with one short question when she replies. She knows very well, of course—we have all been reminded of it over the course of this Bill—that the Attorney-General has a jurisdiction to ask the Court of Appeal to review a sentence if he considers it to be unduly lenient. Let us take a hypothetical case in which a sentence of, say, one or two years has been passed whereas the starting point under the provisions of the Bill would be 15 years. Would it or would it not be open to the Attorney-General to invite the Court of Appeal to take account of and rely on the 15 years as the starting point as evidence that, in an appropriate case, the shorter sentence must have been unduly lenient? If so, then surely it cannot be denied that that would be to impose a fetter on the discretion of the judge.

My Lords, I have already said, and I do not propose to repeat, why I do not like Schedule 19. I listened carefully to what the Minister said when she accepted that this was the replacement of judicial guidelines by statutory guidelines. Of course I accept that any penalties imposed by the court must be within a framework approved by Parliament. To some extent, she might argue that by setting the maximum sentence for any offence, we are clearly establishing those parameters and indicating seriousness. However, my objection to the clause is based on its excessive detail and its content. As has been said, the statutory guidelines provided in the schedule would in effect almost double the length of sentences currently being passed and served. One must ask whether the Government have considered the ratcheting effect of their proposals.

As I have said, I feel that the proposals are in some way self-contradictory. The schedule provides, for example, that there should be a 30-year starting point, I think, for the murder of a police officer. However, why should that provision deal only with police officers and not also with nurses in hospitals or anyone else? I do not believe that we can put guidelines of this nature into statute although I accept that we can establish a statutory framework within which the courts should work and indicate their own guidelines.

I ask the Minister to answer one specific question when she replies. In the previous debate, she said that she hoped that, as a result of the Government's actions, confidence which had diminished in the judiciary could be restored. Can she give any examples of how confidence in the penalties imposed in murder cases of recent years have diminished the standing of the judiciary? Is she saying that the stated periods of imprisonment within the mandatory sentences are such that the public have lost their confidence in the judiciary? Is that why the Government are doubling the sentences? I think that we are entitled to know that. I think that we are entitled to know what effect the Government think these types of maxima will have on sentencing policy generally.

My Lords, I think that it is right on this significant amendment, moved by the noble and learned Lord, Lord Ackner, that I should give a short resume of why we on these Benches are not able to follow the noble and learned Lord into the Content Lobby. Noble Lords who have been with us through the thick and thin—it has mostly been very thick in content and thin in numbers on this Bill—will appreciate that I have already given a resume on no fewer than seven previous occasions. I shall try not to bore the House once more after this one.

When we looked at the provisions of Schedule 19 we shared very much the deep concerns of the noble and learned Lord with regard to all the points that he raises. However, we also had to look with care at them because we supported the Government in every respect on the fact that the Home Secretary had to find a proper way of responding to the Anderson judgment. When in government my party always supported the view that, in the old death penalty cases, if I may call them that, it was appropriate for the Home Secretary to have the right to continue the imprisonment of those who had committed those offences. Otherwise, because of the years that they had been assigned, they might be released.

So when the Government introduced these measures—most of which were brought forward perforce on Report; the Government had no ability to do so in Committee—we had to respond very rapidly. My right honourable and honourable friends in another place had only about 48 hours to respond to these proposals. At that stage, they were prepared to support the Government to a considerable extent while saying that children should not be included within the provisions. However, the more they examined the proposals in detail, the more concerned they became. Consequently, as noble Lords will be aware, at Second Reading I announced that my party had made what I considered to be, and still consider to be, a very bold decision—one that would indeed have enabled the Government to brief the tabloid press that we had gone soft on crime, an allegation that would have been totally false, but one that would have been easy to present.

We were planning substantially to amend Schedule 19, but to do so as part of a very wide package of changes to these provisions. The package was carefully balanced. It was balanced not only with restrictions on the authority of the Secretary of State, but carefully balanced with a measure—a very small and modest measure, we thought—of parliamentary scrutiny. However, that proposal did not find approval within this House.

We could not accept part of the loaf. It had to be all of it because the other half was as vital as that which the noble and learned Lord has put forward so eloquently today. Therefore, we cannot accept the noble and learned Lord's amendment either today or, if he brings back similar amendments on this matter, at Third Reading. However, that does not mean that we are content with the avenue down which the Government are taking us and all in this country.

My Lords, I have listened to everything that has been said on Report, as I listened with great care to everything that was said in Committee. I do not propose to weary the House with all the explanations and reasons that I have given on what feels to be innumerable occasions in Committee, at Second Reading and now on Report. However, I should like to address some of the specific issues raised.

I hear what the noble and learned Lord, Lord Ackner, says about this being an extraordinary distortion as a result of a distorted approach. I say without equivocation that I disagree with him. We have previously explained very fully how we planned to respond to the Anderson case and the history that brought us to that point. I shall not repeat that now. I also wish to say as clearly as I can that the noble and learned Lord's comments about my right honourable friend are not well founded. They are also unfortunate. As I know that the noble and learned Lord always expresses himself with judicious and appropriate care, it is always a surprise, if not a pain, to hear him speak with such lack of temperance.

The reality is that something has to be done to give voice to the fact that Parliament has been enjoined on behalf of the public to decide whether there should be a framework within which the courts should operate when dealing with offences which used to be capital in nature. We no longer have the death penalty but it is right that these offences are still dealt with with the utmost seriousness because of their fatal nature.

I remind the House that my noble friend Lady Kennedy is indeed a very dear friend to my party. I do not disagree with her when she says that the Government should take a lead on this matter. We are taking a lead in this Bill. The provisions in Schedule 19 are not the only provisions in the Bill. When we isolate this debate we should not expunge from our minds all the other sentencing provisions with which we have laboured during the passage of the Bill: cautioning, sentencing plus, sentencing minus, therapy, treatment, opportunities for early release and continuation of community support so that sentences are real. All of that feeds into the matter that we are discussing. I say with due respect to my noble friend that this is not a matter of shame. I hear what she says in relation to Schedule 19. What we have done in the Bill is to try to bring together a holistic response to sentencing. That should be a matter of some considerable pride as it is an aspiration that has been expressed for a long time and is based on the empirical data that we have. It was endorsed by Auld, Halliday and, before them, by Glidewell. Therefore, it is not something about which we should feel shy.

The noble and learned Lord, Lord Mayhew, asked about the Attorney-General's ability to review. That remains. The Attorney-General will have to look—as he always looks—to determine whether the court went so outside that which was proper that he should seek to ask the Court of Appeal to interfere with the exercise of a judge's judgment and discretion. Nothing has changed in that regard. What we have, however, is an ability for the judge in passing the sentence to explain with clarity and certainty the basis on which he made that judgment.

I hear, too, what the noble Lord, Lord Thomas of Gresford, said about judges and the way in which they exercise their discretion. I hope that I have made clear that the best of our judges seek to explain their judgments with clarity and to explain the mitigating and aggravating features that they have taken into account. However, I have to say—we had better not persuade ourselves away from the truth—that that is by no means universal. We want to set a benchmark which says, "This is what every individual can expect". I listened with great care to what the noble Lord, Lord Thomas of Gresford, said. I hope that when he reads his words tomorrow in Hansard, he will not feel a degree of embarrassment at the tone he adopted towards victims and witnesses. Many victims and witnesses have a perfect ability to understand matters. The noble Lord should know—I am glad that he recognises it—that what most people want is a proper and full explanation. They do not always get it. The noble Lord discussed the history of the matter and rightly said that in the past two years practice has changed. It is right that practice will change even further. New rights and new responsibilities will be put in place, and if we get our way on the victims and witnesses strategy, still more will be done. However, what we set out here is a framework, and that is what we have. If we look at the cases—

My Lords, before the noble Baroness moves on—

My Lords, this is Report. I believe that I have been amazingly tolerant but even I come to a stage when I think that I, too, must have the courtesy shown to me which is the entitlement of a person who responds on behalf of the Government on Report. I say that with the greatest respect—

My Lords, if the noble Baroness criticises me, surely I am entitled to respond.

My Lords, the noble Lord is entitled to ask a question. He has asked a question and I have sought to respond. I say with the greatest degree of respect to the noble Lord that it is now my opportunity on Report to respond with propriety. I hope that I shall do so, and do so with courtesy.

Much has been said about differences in the way in which these matters are approached. Reference was made to a great disparity, a 50 per cent difference and a ratcheting up. However, that is not what the figures show. We believe that 70 per cent of the cases will fall within the 15-year band. That compares with the 12 years suggested by the Lord Chief Justice. In those cases it would not be right to suggest that there is a 50 per cent increase. The 15 and 16 years for aggravated cases we think should apply to 30 per cent or less. Generally our 30-year starting point, or whole life starting point, is for the most serious cases. It was said that substantial upward adjustment to 20 or 30 years is sometimes called for. I have said previously why we disagree with that view.

The noble Lord, Lord Carlisle of Bucklow, suggested that the discretion of the judge may be diminished by virtue of this schedule. We do not believe that to be the case. The framework is set. I have referred previously to the benefit that I believe is to be drawn from paragraphs 7 and 8. I hear what the noble Baroness, Lady Anelay, said about the reason for her party's view. I hope that the true reason is that in reality what we have now is a fair framework. These proposals are rational and appropriate. They are a very carefully deliberated response to the House of Lords judgment in the case of Anderson which held that the tariff decision should be made by an independent tribunal. The Government are fully committed to ensuring that the law is compatible with the rights protected in the ECHR. The Government are also fully committed to the continuation of a strong element of democratic accountability in arrangements for sentences of murderers and have brought forward amendments to give effect to that.

Times change but the whole point of the framework is that it sets the starting point and sets out the aggravating and mitigating features so that the flexibility we would expect is available. The noble Lord asked about public confidence in the criminal justice system generally. When I say that generally it is low that is because the indicators and the research that we have demonstrate that that is the case. It is curious that even in those areas where the rate of successful interdiction, arrest and bringing to justice of offenders has gone up, that has not been mirrored in a consequent increase in confidence. We are now seeking to establish why that is so.

One of the things that the framework will achieve is to enable people to understand with greater clarity why decisions are made. It will give us—if I can put it colloquially—the same hymn sheet from which we can all sing in whatever part of the country we happen to be, and the regional variations which are currently not explicable can be better understood and better explained.

We believe that the schedule is an appropriate response to Anderson and that it is well founded. I invite the noble and learned Lord, Lord Ackner, to do what he originally said that he was minded to do; that is, to invite everyone to go through the Not-Content Lobby. I believe that he was right in that, albeit I understand the advice that was given to him, which was only proper.

My Lords, I have three brief points to make. First, in response to the criticism levelled against me for my comments on the Home Secretary, I am satisfied that I adhered to the tradition of this House to speak with moderation. I remind the noble Baroness of our recent debate that was devoted almost entirely to his comments, and how no noble Lord spoke in his favour, with the slight exception of the noble Lord, Lord Borrie.

Secondly, the noble Baroness has in no way answered the point that was made by the Liberal Democrats, the Official Opposition and by me: why was the matter not left to the Sentencing Guidelines Council? It was set up, and before it had a chance to act, it was pre-empted with that vast increase.

Finally, the noble Baroness referred to no consultation with anyone, neither the judiciary nor anyone else, before the schedule was produced. That was a conditioned reflex resulting from the Anderson case and the immigration case. I wish to test the views of the House.

On Question, Whether the said amendment (No. 227) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 104.

Resolved in the negative, and amendment disagreed to accordingly.

moved Amendment No. 228:

Before Clause 256, insert the following new clause—

"DISQUALIFICATION FROM WORKING WITH CHILDREN

(1) The following is inserted after section 29 of the Criminal Justice and Court Services Act 2000 (c. 43) (disqualification from working with children: juveniles)—

"29A DISQUALIFICATION FROM WORKING WITH CHILDEN WHERE QUALIFYING SENTENCE OR RELEVANT ORDER NOT IMPOSED

(1) This section applies where—

(a) an individual aged 18 or over is convicted of an offence against a child, and

(b) neither a qualifying sentence nor a relevant order is imposed by a senior court in respect of the conviction.

(2) If a senior court is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child, it must order the individual to be disqualified from working with children.

(3) If a senior court makes an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings."

(2) In section 30 of the Criminal Justice and Court Services Act 2000 (c. 43) (sections 28 and 29: supplemental) after the words "sections 28 and 29" there is inserted ", 29A".

(3) In section 33 of the Criminal Justice and Court Services Act 2000 (c. 43) (conditions for application under section 32) after subsection (2) there is inserted—

"(2A) In relation to a disqualification order made under section 29A, as if the order were a sentence passed on him for the offence of which he has been convicted.""

My Lords, in moving Amendment No. 228, I shall speak also to Amendment No. 229. Amendment No. 228 returns to a matter of great importance; namely, the orders introduced by the Criminal Justice and Court Services Act 2000, which disqualify from working with children those people who have committed sexual or violent crimes against children or who have dealt class A drugs to children. I raised that issue in Committee at col. 891 of the Official Report of 14th October. The amendment seeks to address points raised by the Government on that occasion.

At present, offenders can be given disqualification orders only if they commit one of the relevant offences set out in the 2000 Act and are sentenced to 12 months' imprisonment or more. In Committee, I raised the issue of those who commit offences against children but do not receive a 12-month sentence. One hears daily of offenders who receive very short prison terms or even community sentences for very serious offences against children—in particular, for child pornography offences. Such people are clearly unsuitable ever to work with children but, under the law as it stands, there is no means by which they can be given a disqualification order.

In Committee, the Minister resisted my amendments on the ground that automatic disqualification for all sex offenders, or all those sentenced to imprisonment for fewer than 12 months, might include some cases where disqualification might be inappropriate; in particular, minor child-on-child cases—a point made by the noble Baroness, Lady Walmsley. I recognise that the Minister's point has some force. The amendment would not make it mandatory for disqualification orders to be imposed in all such cases; it would require disqualification only where the court considered it likely that an offender would commit further offences against children.

Therefore, as the noble Baroness, Lady Walmsley, said in Committee, the amendment focused on,

"the propensity of the people concerned".—[Official Report, 14/10/03; col. 894.]

I hope that the Minister will accept the revised amendment, which would provide additional protection to children from those offenders who are clearly a potential danger but who, for whatever reason, receive relatively light custodial sentences or even community sentences, possibly as a result of a guilty plea.

I ought to remind the House that I proposed a similar amendment to the Criminal Justice and Court Services Bill on 4th October 2000, which was rejected by the noble Lord, Lord Bassam, speaking for the Government. He said,

"this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in".—[Official Report, 4/10/00; col. 1531.]

I hope that the noble Baroness will not simply repeat the arguments put forward three years ago by the noble Lord, Lord Bassam, which were formulated prior to the introduction of the scheme. His case included the curious argument that such an amendment would,

"serve only to dilute and weaken the scheme".—[Official Report, 4/10/00; col. 1529.]

I continue to believe that my amendment would strengthen the scheme. The Government promised three years ago that they would revisit the point in the light of the scheme's operation. Again, I hope that the Minister will say that there has been a change of mind on the Government Front Bench.

I should also like the noble Baroness to clarify for the record some of her responses in Committee. In Committee, I referred to the comments made last month in the Court of Appeal by Lord Justice Kay about trial judges failing to impose disqualification orders on offenders on whom such orders are required to be imposed by the 2000 Act. Those comments were made during the course of argument in the Court of Appeal. I have had the opportunity to read the judgment, given on Wednesday 15th October just a few hours after I had made my speech in Committee.

The case concerned was that of Michael Wheeler, the paedophile who groomed two young girls over the Internet. He deliberately waited until very soon after they had turned 13 years old before engaging in sexual intercourse with them. The result was that the maximum sentence for each act of unlawful sexual intercourse was two years rather than life imprisonment. Noble Lords may recall that both the trial and the appeal were the subject of much comment in the press. At the conclusion of the Court of Appeal's judgment, Lord Justice Kay said:

"The judge's order requiring registration under the Sex Offenders Act remains unaltered. In addition there was a requirement on the judge to disqualify the offender from working with children pursuant to section 28 of the Criminal Justice and Court Services Act 2000. That order was mandatory unless the judge concluded that it was unlikely that the offender would commit any further offence against a child. Where a judge reaches such a conclusion he is bound to explain his reasons. The judge in this case made no such order and gave no explanation for not doing so. We must, therefore, consider the matter ourselves. It is wholly impossible to conclude in the circumstances of this case that the offender will not commit a further offence against children. There is a clear risk that it may happen. Accordingly we are obliged to, and do, make such an order under section 28".

If a disqualification order is not imposed by a trial judge in such a serious and high-profile case as this, where it is manifestly obvious that it should have been, how many other offenders during the past three years have escaped without the ban on working with children being imposed when it should have been? Had the noble and learned Lord the Attorney-General not sought to appeal the length of prison sentence passed on Wheeler, a disqualification order would never have been imposed. As I understand it, the issue of whether a disqualification order ought to have been imposed in Wheeler's case was raised not by counsel for the noble and learned Lord but by the Court of Appeal.

Will the Minister indicate what has come of the inquiries that she and her noble and learned friend have made into those maters and whether there are cases in which disqualification orders have not been imposed due to an error in the Crown Court? I would particularly appreciate clarification from the noble Baroness about the case of the paedophile, Sadowski, which I raised in Committee.

In Committee, I asked the Minister whether it would be possible to impose disqualification orders on those offenders who should have been disqualified but were not due to such errors as obviously occurred in the case of Wheeler. The noble Baroness said:

"I said that I believed we had received a very recent ruling that would allow the retrospective application of this procedure. I have not yet looked at the ruling myself. The number of cases will still be limited. I would quite like to see the authority myself to verify that it does what we hope it will do. I shall write to the noble Baroness to clarify the matter. I believe that I can reassure her that we can seek to put it right".—[Official Report, 14/10/03; col. 902.]

I have not had an indication of what that investigation found.

I believe that the noble Baroness may have been referring to the case of R v Field, a decision of the Court of Appeal given on 12th December last year and reported in Volume 1 of the Weekly Law Reports of 2003 on page 882. That ruling was concerned not with the imposition of disqualification orders on those offenders who were erroneously not sentenced to them in the first place but with whether the orders could be imposed on those convicted after the commencement date of offences committed before commencement. That was the point about retrospective application with which the court was dealing. The court held that they could be imposed in such cases.

However, that judgment does not address the point I was seeking to make in Committee, which is whether we can now impose the orders on those offenders who have escaped them during the past three years since the 2000 Act came into force, as Wheeler did, because of errors in the trial process. Can the noble Baroness say what the outcome of the Government's reflection on that point has been since the Committee stage?

Can the noble Baroness also put on the record the Government's position regarding disqualification orders being imposed by magistrates' courts? Clause 136 increases magistrates' sentencing powers to allow them to impose a sentence of 12 months' imprisonment. In cases of offences against children, such offenders would have to be sentenced to disqualification orders if they were sentenced by the Crown Court, but magistrates' courts have no powers to impose disqualification orders as the law stands.

The Minister said in Committee,

"we believe that it would be proper to leave the balance where it is. Given the very serious nature of the disqualification order and its lifelong consequences, we consider it more appropriate to continue to restrict its use to the Crown Court".—[Official Report, 14/10/03; col. GC 898.]

I believe that that is an unfortunate conclusion to arrive at, as it creates a potential lacuna. Someone sentenced to 12 months by the magistrates' court for an offence against a child cannot be disqualified from working with children, but someone receiving the same sentence for the same offence in the Crown Court could be disqualified.

When I pressed the point, the Minister then said:

"When dealing with this sort of application—we are talking about a lifelong ban—the appropriate level of judicial office to impose that ban will be the Crown Court. In due course it may be deemed appropriate for those cases to be transferred to the Crown Court to be dealt with there".—[Official Report, 14/10/03; col. GC 902.]

I thought this Bill was about making more rational the judicial system and making it possible that where the court has the increased power to award a sentence of up to 12 months, it would be able to apply a disqualification order in appropriate cases. Can the Minister or the noble and learned Lord the Attorney-General give the House an assurance from the Dispatch Box that, in all cases of offences against children tried in the magistrates' courts, the magistrates will be reminded by the Crown Prosecution Service that, if there is any question of a 12-month sentence being passed, they ought to commit the case to the Crown Court for sentence so that a disqualification order can be imposed?

The Government rejected my amendment in Committee. It would have provided a legislative solution to this problem, and it is important that some sort of solution, even an administrative one, is put in place to close that loophole. I invite the Government to give that assurance now, based on the Minister's remarks in Committee that I have just quoted.

I believe that this amendment is clearly needed to address a lacuna in the existing legislation. I also hope that the Minister will be able to provide a very full assurance to the House on the other points I have raised and to set out what action the Government propose to take to rectify the problems that have come to light.

Amendment No. 229, which also stands in my name, raises a point that occurred to me when I read the recent judgment of the Court of Appeal in the case of Michael Wheeler. He was sentenced to a number of consecutive sentences of imprisonment for several offences. Section 28 of the Criminal Justice and Court Services Act 2000 states that an individual convicted of an offence against a child must be disqualified from working with children if,

"a qualifying sentence is imposed by a senior court in respect of the conviction".

In practice, that means if a sentence of 12 months or more is imposed by the Crown Court.

My Amendment No. 229 raises the issue of consecutive sentences. Let us suppose that an offender is sentenced at the Crown Court to 18 months for three offences against children, but the 18-month sentence is made up of three consecutive six-month sentences or even two consecutive nine-month sentences. Would such an offender be liable to be disqualified from working with children because of that technicality? The sentence imposed in respect of each conviction is less than 12 months, although the overall sentence is substantially more.

When I looked at Section 28 of the 2000 Act, my initial reaction was that it stated that the 12-month sentence had to be imposed in respect of at least one individual conviction. In that case, a person given an overall sentence of 12 months or more, made up of consecutive sentences shorter than 12 months, would not be covered. If that is the case, it is clearly wrong, and the legislation needs to be corrected.

I hope that the Minister will be able to clarify the position when she comes to the Dispatch Box. Unless these concerns are addressed, either by accepting my amendments or by promising that they will be dealt with in full at Third Reading, I give notice that I shall return to these important matters. I beg to move.

My Lords, I fully support all that my noble friend has said. I look forward to hearing my noble friend Lady O'Cathain speaking in support of these amendments.

My Lords, I obviously support my noble friend on these amendments. I am convinced that the amount of research that she has done, the feeling and the sheer care that she has put into a really appalling situation which has been allowed to develop justifies anybody's support.

We believe and hope that the Minister is sympathetic towards these amendments—to the principle contained in them and the content, if not the actual wording. If they are not perfectly worded, perhaps she will give an indication that she will take them away and the Government will give us a steer on how to continue.

My Lords, Parliament has a major duty to protect children from the activities of paedophiles. My noble friend Lady Blatch, with her usual persuasive ability, has put forward what I suggest is an unanswerable case in her amendments. She has made it clear that her amendment would allow no discretion on the part of the court. It says that a senior court must order the individual to be disqualified from working with children. Those are very strong and, in my opinion, unanswerable terms. Moreover, proposed subsection (3) states,

"If a senior court makes an order . . . it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings".

I hope that the Minister will agree that there is no answer to the case which my noble friend Lady Blatch has put forward. If it is a matter of drafting, by all means let the Government put forward better drafting at Third Reading. But we really cannot ignore the case that my noble friend has made.

My Lords, as the noble Baroness, Lady Blatch, has reminded us, when we debated this matter in Committee, I was supportive of what she was trying to do. There clearly is a gap in the provision for protecting children in this respect.

At that time, as the noble Baroness reminded us again, I hoped that something could be brought forward which focused on the propensity to reoffend against children and that children would be protected by a new provision. The amendment is a very good attempt to solve the problems identified on that occasion. Even if it is not exactly perfect, I hope that the Minister will be able to reassure us that she will address the matter at Third Reading.

My Lords, I thank the noble Baroness, Lady Blatch, and join the noble Baroness, Lady O'Cathain, in congratulating her on her ongoing commitment in this very important area. I also thank the noble Baroness, Lady Blatch, for initiating a further debate in this House on disqualification of unsuitable people from working with children. Similarly informative debates have taken place on the matter in the context of the Sexual Offences Bill in another place. I hope that I will be able to give her sufficient comfort for her to be content that we are responding appropriately. However, I will not be able to answer all the points that she raised.

Amendment No. 228 would widen the scope of Part 2 of the Criminal Justice and Court Services Act 2000, to give courts the power to disqualify from working with children those offenders whose sentence did not meet the qualifying sentence threshold set out in Section 30 of that Act. Broadly speaking, the current sentence threshold in the provisions is 12 months or more of imprisonment or detention, or a guardianship or hospital order within the meaning of the Mental Health Act 1983.

The proposed new clause in the amendment provides for the courts, if satisfied that the individual will commit a further offence against a child, to make an order disqualifying him from working with children. They must state their reasons for making such an order and cause those reasons to be recorded in the record of proceedings. I am not absolutely clear whether the noble Baroness intends that the effect of the amendment will be that a court must consider a discretionary disqualification order every time that it sentences for a relevant offence. If so, that would be a little burdensome for the courts. However, I share her concern that underlies the amendment; namely, that the courts should be able to disqualify from work with children all those who have offended sexually or violently against children and pose a continuing risk to them. That is what she is getting at.

I wrote to noble Lords, including the noble Baroness, last week outlining our initial thinking. I am sorry if she did not get that response. I have a copy in my briefing, and the letter was written to the noble Baroness, Lady Anelay, and copied to the noble Baronesses, Lady Blatch, Lady Walmsley and Lady O'Cathain, and the noble Earl, Lord Russell. I hope that the others got their copies. I apologise to the noble Baroness if, for some reason, the letter has not got to her, although I think that the noble Baronesses, Lady Anelay and Lady Walmsley, have theirs. We set out in that letter what we found. A copy has been put in the Library, but I am quite happy to deal with the issue.

The Government will seek to table a relevant government amendment at Third Reading that will address the issue raised by Amendment No. 228. The draft is not to hand now, or I would obviously have been more than happy to share it with the noble Baroness. We would like to leave the existing quasi-automatic scheme for disqualification orders untouched but to consider adding a discretionary extra tier to the scheme, which courts might use in cases where the qualifying sentence threshold was not met. I think that that goes to the mischief that the noble Baroness has identified. I hope that she can be content to wait to see that provision before making a decision.

The noble Baroness raised an issue about the difference between the ability of the magistrates' courts and the Crown Court to deal with the matters. We will work to ensure that the guidance on allocation of courts issued by the Sentencing Guidelines Council advises that cases in which a disqualification order is likely to be made should be allocated to the Crown Court. However, if the magistrates' court dealt with a relevant case and unexpectedly found a disqualification order necessary, it should be able to commit it to the Crown Court under the dangerousness provisions in the Bill. We hope that we will be able to catch that.

I listened with care to what the noble Baroness said about finding an alternative administrative route to make sure that a safety net was there, and that may be the sort of safety net that she would wish to see and we would be happy to try to supply. The Sentencing Guidelines Council is independent, of course, but we will certainly raise the issues, as I am sure will others, to invite better consideration of them.

I also listened with concern to what the noble Baroness said about whether the issues were being raised by prosecutors when dealing with such cases, so that we could apprise the court. The court is sure that that should be done. I am most grateful to my noble and learned friend the Attorney-General, who sits beside me on the Front Bench today, for his affirmation for what is contained in my brief, which is that Crown Prosecution Service prosecutors have been reminded to remind the court of that power. He has reinforced that message himself, because he sees the matter as important, as does the noble Baroness, Lady Blatch.

Amendment No. 229 introduces a provision whereby an offender who meets the qualifying sentence threshold by virtue only of two or more consecutive sentences for relevant offences can be disqualified, in the same way as an offender who gets a qualifying sentence following a single conviction. The noble Baroness told us how she thinks that that would operate. The effect of the amendment might conversely be that, for example, an 18 year-old convicted of three minor charges of assault, including a brawl with a 15 year-old of similar stature, and sentenced to four months' imprisonment for each assault to run consecutively, would be brought within the quasi-automatic provisions for disqualification for life from working with children.

From our previous debate, I know that that is not what the noble Baroness intends; nor is it what the noble Baroness, Lady Walmsley, or any of us would want. I remain unconvinced that, by itself, the amendment is a proportionate response, but add that the amendment that we hope to introduce at Third Reading would remove the need for Amendment No. 229 in cases where the court believed that there was a continuing risk to children. In those circumstances, the court would be able to take effect of the second limb that we seek to introduce in the new amendment, which would enable it to give that safety provision to children in such circumstances. With that reassurance, I hope that the noble Baroness will also feel content.

The question of whether disqualification orders can be made retrospectively was raised on the previous occasion, and the noble Baroness amplified it tonight. I want to clarify that the orders can be made with respect to behaviour that pre-dated the coming into force of the relevant provisions in the Criminal Justice and Court Services Act 2000. However, the orders can be made only at the time of sentencing of the offender; they cannot be made later.

I appreciate the concerns that were raised by the noble Baroness—they were also raised in another place—about the apparent failure of the courts in certain cases to issue disqualification orders in cases where the qualifying criteria appeared to be met. It would be inappropriate to comment on specific cases without the full facts in front of me, but I share the concerns of the House, as expressed by the noble Baroness, that those orders must be made in cases that meet the qualifying criteria. I am urgently considering what further action can be taken to deal with any cases in which it appears that a court may have omitted to consider the making of a disqualification order. There may be considerable difficulties, but we are giving urgent thought to how we can respond to that problem.

In the mean time, to ensure that orders are made in appropriate cases, we have raised the issue with the Crown Prosecution Service and the Judicial Studies Board. They have undertaken to remind prosecutors and sentencers of the disqualification provisions. We will also be considering how best to undertake a review of the operation of the disqualification provisions. I hope that those undertakings will go some way to reassure the House that we take the issue very seriously and that we are trying to ensure that disqualification orders will be made in every relevant case.

The noble Baroness asked specifically about the case of Luke Sadowski. Since she raised the matter, we have made enquiries and are still looking into the case, but the points that I have made address the general issue of the possibility that a court may not make an order in a relevant case.

I have not been able to obtain the kind of detail that would enable me to make a proper response to the noble Baroness, but we will continue to seek it. If and when I find such an explanation, I shall certainly share it with noble Baronesses opposite and with the noble Baroness, Lady Walmsley. I hope that the noble Baroness, Lady Anelay, will forgive me if I write directly to the noble Baroness, Lady Blatch, on this occasion and copy the letter to other noble Lords who have participated in the debate. I hope the noble Baroness will not consider me discourteous for not doing it the other way round, but it may ensure that the noble Baroness receives the letter that she deserves.

My Lords, I am grateful to the Minister for that full answer. I do not hold her personally responsible for my not having received a copy of the letter. I am certain that my noble friend, Lady Anelay, would have discussed the letter with me if she had not taken it for granted that I had received my copy. It is not the first letter in recent weeks that I knew would arrive two or three weeks late, so there are no hard feelings over that.

I hope that the noble Baroness will understand it if I reserve my position until I have seen the amendment, because the terms of the amendment will be important. I understand the Minister's comments on the sentencing guidelines on allocation of court. Since the Bill is about streamlining the service and making it faster and more flexible, it is a great pity that if, for example, the allocation of court were wrong, and the case went to the magistrates' court rather than to the Crown Court, and a 12-month sentence were given, there is not a facility for that sentence to be awarded in that court rather it having then to be referred up to the Crown Court. Again, I will await to hear the detail of any remarks that the Minister makes at Third Reading.

It is deeply distressing that the automatic system is not working. There is now a complete lack of trust. It is extraordinary that reminders have to go out. The Act of Parliament reached the statute book in 2000 and it is only by my tabling the amendments that we have discovered—as the Government clearly have not—that the system is not working. Serious offenders have been found guilty in court, have been sentenced and have walked away without the disqualification order. They are therefore fully free, during the course of their lives and maybe on reform, to go and work with children. That is simply not acceptable. To say that they have been reminded and that the Attorney-General has reinforced that reminder is simply not good enough.

Whatever else we do at Third Reading, we must remedy a situation where the court has failed to apply a disqualification order from working with children in an appropriate case. If it is a matter merely of the judge forgetting, there must be a remedy that can be retrospectively applied. Otherwise, serious offenders, who in the court's judgment have a propensity to offend again, will be allowed to work with children again. I hope that the noble Baroness will come forward with an amendment that will do that.

I shall comment finally on the Sadowski case. I am deeply disappointed that in spite of all the back-up that the Home Office supplies, and I know well of it, it could not have found out between Committee and Report whether Luke Sadowski received a disqualification order and whether it was appropriate in the case. If he did not, why not? I am sure that I would be able to find out that information in a morning. I accept that the noble Baroness still does not have that information and that she will try to get it for me, but it will nevertheless be deeply distressing if we discover that a man like Sadowski, who deserves a disqualification order, does not have one simply because the court failed to apply it.

As I have said, I reserve my judgment for Third Reading. I will look carefully at the amendments tabled by the Minister, but I hope that she will take on board the extra points to which I have referred and in particular my proposal for some remedy in law for the courts' having failed to apply a disqualification order. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 229 not moved.]

Schedule 22 [Drug treatment and testing requirement in action plan order or supervision order]:

moved Amendment No. 230:

Page 301, line 8, at end insert—

"(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and

(d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory."

My Lords, in speaking to Amendment No. 230, I shall speak also to Amendment No. 233. It is the first of three groups of amendments to Schedule 22.

I return to the amendments to Schedule 22 to ensure that the powers to attach drug treatment and testing requirements to action plan and supervision orders would be used by the courts only if alternatives of voluntary treatment had been considered and rejected as unsatisfactory. That would build in safeguards to ensure a more appropriate and proportionate response to young people who use drugs.

I am concerned in principle at the prospect of children being compelled, on pain of the criminal offence of breaching a court order, to undergo treatment, even though they might benefit from it. The voluntary route is by far the best. The amendment would ensure that the serious step of using court compulsion to treatment would be taken only where absolutely necessary, and where voluntary options had already been considered and tried.

The Government have already shown a commitment to interventions that are relevant and proportionate. For example, in Committee in the Commons, the Minister stated:

"the court would include a treatment requirement in the orders if it was satisfied that that would be relevant and proportionate intervention. That test is very important".

It is surely therefore vital and valid to incorporate such an important test into the legislation that provides for those powers.

Similarly, in relation to voluntary treatment, the Minister in another place stated:

"It is open to any misuser of drugs—anyone with a problem—to seek voluntary treatment at any time".—[Official Report, Commons Standing Committee B, 11/2/03; col. 976.]

While that statement is perhaps generally true of adult drug users, I must question whether it can fairly be said that every child aged 10 and over has the kind of knowledge and confidence to access a young person's treatment service of the kind that the statement would imply.

I am grateful to the noble and learned Lord the Attorney-General for his recent letter about the increase in resources for drug treatment. While growth in young people's community treatment services has recently been rapid, there are in many areas still few new services and they are often unknown to young people in the area. This is perhaps even more true for those young people who have become disengaged and have started to get into trouble.

As the provider of young people's drug treatment, the Children's Society, which has briefed me, knows that for many children who get involved in offending and drug use their involvement with the youth offending team's drug specialist will be the first time they have become aware of the availability of youth-centred drug services. As a matter of course and good practice, the society believes that the possibility of voluntary treatment should be pro-actively encouraged by both YoT agencies and the court and considered to be the preferred option before the necessity for court compulsion can be shown.

I had the pleasure of an interesting briefing by the National Treatment Agency yesterday afternoon and it is clear that a great deal of progress is being made. However, it had to admit that there is still a long way to go in providing drug treatment programmes that are relevant and appropriate to young people. It also accepted that there are serious challenges in ensuring that these services are well known to and can be easily accessed by young people. In the light of that, I believe that there is a need for the additional safeguards of these amendments. I beg to move.

My Lords, at earlier stages of the Bill I supported the voluntary principle as set out in the noble Baroness's amendment. I am happy to do so again and I am convinced that if it can be applied it will lead to more satisfactory and effective treatment.

My Lords, Amendments Nos. 230 and 233 would additionally require the court to be satisfied that the offender's dependency on or propensity to misuse drugs is related to his offending behaviour and that the option of voluntary treatment is considered unsatisfactory. In the past, the noble Baroness, Lady Walmsley, has suggested that the provisions of the schedule are disproportionate and that a programme of treatment should be imposed only when it is quite clear that there is a definite and problematic habit which is linked to the offence.

We want to take every opportunity to identify and address, as early as possible, dependency on or propensity to misuse drugs, so as to minimise the chances of a young drug user entering a continuing cycle of drug misuse and offending. We believe this to be important regardless of whether or not that dependency or propensity is directly related to the particular offence or offences for which the community order is being imposed.

We all accept that there is a strong correlation between drug misuse and offending among young people. We also know that drug misuse is a serious problem which, if left unchecked, can blight young people's lives and lead to a cycle of drug misuse and repeat offending. The aim of the treatment requirement is to reduce and, if possible, eliminate the young offender's dependency on or propensity to misuse drugs.

Under these provisions, the offender's dependency or propensity has to be such as requires and may be susceptible to treatment. It is likely, therefore, to be an underlying problem which has contributed to the offence for which an order is being imposed. However, not all drug users go on to commit crimes specifically related to their offence. We therefore consider that it would be over restrictive to put such a condition, as proposed in these amendments, on the face of the Bill. For those reasons, therefore, we intend to resist this part of Amendments Nos. 230 and 233.

The schedule ensures that the courts can include a treatment requirement in these orders only if it has been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Such a recommendation should be made only if the requirement is relevant—I repeat, relevant—to the offender. Clearly, a court will take relevance and proportionality into account in deciding whether to include a treatment requirement in each case.

The inclusion of paragraph (d) in Amendments Nos. 230 and 233 would make it a condition that the court must be satisfied that voluntary treatment concurrent with an order would be unsatisfactory.

Views have been expressed which reflect the concerns of the Children's Society and other organisations about the coercive nature of including a treatment requirement as part of a court order for young people. We understand that their preferred option would be voluntary treatment rather than treatment under the requirement of an order.

However, it is not the case, as has been suggested, that children are being compelled on pain of breaching a court order to undergo the treatment they need. The clause ensures that the court may include a treatment requirement in these orders only if offenders who are 14 or over consent to its inclusion. As I have said, the requirement as to treatment must also have been recommended to the court as suitable and therefore appropriate for that offender.

We agree that treatment is more likely to be effective and successful with the active compliance of the individual concerned. If an offender is already undergoing treatment or is committed to undergoing a treatment programme, this would be taken into account by the supervising officer when considering whether to recommend including a treatment requirement in an order. We anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a generally agreed chaotic lifestyle. These individuals would benefit from a more structured, integral programme.

The purpose of this schedule is to provide for treatment to be included as a component of an order so that the offender's drug misuse can be addressed as an integral part of the order. We know that young drug-misusing offenders are likely to have complex problems which require integrated approaches. If treatment were to be undertaken under separate arrangements, the real benefits of this integral approach could be lost. Moreover, there could be less incentive for the offender to remain in a treatment programme. Were an offender to drop out of such separate "voluntary" treatment, there would be no way for the court to ensure that his drug-using behaviour was effectively addressed.

If an offender who has consented to the inclusion of a treatment requirement, as part of an action plan or supervision order, then failed to participate in the treatment programme, or withdrew his consent, this could be taken into account in deciding how best to deal with that offender. Decisions would be taken in the context of a continuing aim to help him address his drug-using behaviour.

We know that young people undergoing drug treatment often lead the chaotic lifestyle to which I have referred and that despite the best efforts of everyone involved there could well be breaches of the drug requirements. We want to help young people with these drug problems and there will certainly not be a "one breach and you are out" policy.

Multi-agency youth offending teams and specialist drug workers who support them are well used to working with young people with multiple problems, including drug misuse, and will help support and encourage them. In addition, guidance to the courts and youth offending teams will make it clear that breach action should be undertaken only as a last resort.

I hope that having heard more background and a description on how we see the provision working, the noble Baroness will feel able to withdraw her amendment.

My Lords, I thank the Minister for his response. I confess to agreeing with many of the words he uttered and I pay tribute to the Government's intention and objective of helping young people. The difference between us boils down to the fact that I and the children's organisations do not believe that the compulsion element will achieve what is required. Furthermore, we are concerned about the ratcheting up element of the potential for breaching a court order. However, I do not intend to press the amendment on this occasion and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

moved Amendment No. 231:

Page 301, line 36, leave out "consents to its inclusion" and insert "has indicated his willingness to comply, and the appropriate consent to inclusion of the requirement has been given"

My Lords, in moving Amendment No. 231 I shall speak also to Amendment No. 234. Their purpose is to ensure that prior to the attachment of requirement of drug treatment to a supervision and action plan order, the court has regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements within Schedule 22 could, as they currently stand, be included in an order for any person aged 10 or over. The proviso that the court shall be satisfied that the young person's consent has been obtained if he is 14 or over implies, first, that any child over 14 would automatically be competent to consent on his own to the inclusion of a requirement; and, secondly, that it would not be equally important for the court to establish the views and willingness of a young person under the age of 14 to comply with the requirement.

Both those implications of the current drafting are problematic, and they support the need for the amendments, which would separate and clarify the difference. Our aim would be to ensure that each child who is assessed for such an order has had the opportunity to express his view and intentions in relation to the prospect of treatment, whether or not it is the child or his parents who will need to give express consent to the inclusion of the requirement in the order.

The Government's stated intention in introducing these requirements is to provide helping treatment that will engage the young person in behaviour change. The principle behind my decision to return to this matter on Report is that I believe it is important that the engagement is there from the outset. I am sure that that is the correct approach. I believe it is also the Government's approach in many ways.

Therefore, I cannot see any logical reason for legislating in this way only for those aged 14 and over, should such an engagement be necessary. In fact, the younger the person involved, surely the more important it is for the court to know whether he is being subjected to a process which he does not understand or with which he has no desire or intention to comply. I beg to move.

My Lords, when the noble Lord comes to reply, can he say whether the Government wish to see parents agreeing to this kind of order and treatment? I believe that that would greatly reinforce their effectiveness in the 14-to-18 age group and would do so even more if such orders applied to children under the age of 14.

My Lords, the schedule does not allow the court to include a treatment requirement in either order unless, among other things, the individual, if aged 14 or over, consents specifically to its inclusion. Amendments Nos. 231 and 234 would require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and would also require that "appropriate consent" be given to its inclusion in the order. The schedule already requires the consent of those aged 14 and above to the inclusion of a requirement in the order.

With regard to a "willingness to comply", as has already been mentioned, the court cannot include a treatment requirement unless it has been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Before making such a recommendation, the probation officer or youth offending team member must take into account the willingness of the offender to comply with the order.

I turn to the need for "appropriate consent" to inclusion of the requirement—that is, consent both to the inclusion of a requirement as to treatment, and testing where applicable, and consent to the treatment itself. That will have to be given in accordance with the Fraser guidelines and the principle of Gillick competence. That will be confirmed in guidance to the courts and to professionals, who will be responsible for the implementation of the provisions.

We do not mean to imply, as has been suggested, that all those aged 14 and over will be competent to give their consent, nor that those under the age of 14 will not be competent. We shall make clear in guidance that the courts should have regard to the consent of an individual, and his parents or guardians where appropriate, whatever the offender's age.

Having said that, we continue to believe that it is right to require the implicit consent of those aged 14 and over to the inclusion of a treatment requirement. We believe that young people should be engaged in that decision. With that engagement from the start, successful participation in a treatment programme can surely only be more likely, as the noble Baroness, Lady Walmsley, suggested.

I do not believe that there is a great deal between us on this issue. I hope that what I have said offers the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hylton, sufficient comfort and that they will feel confident in seeing the amendment withdrawn.

My Lords, I thank the Minister for his response. On this occasion, I believe that we have to rely on the recommendations of the youth offending team officers in relation to the treatment being not only suitable and relevant to the young person but also in relation to the young person understanding and agreeing with it. It is not so much the suitability but the state of mind of the young person that is most important, and the court must be absolutely clear about that. I am particularly concerned about the 10 to 14 year-old group in this case. However, I do not intend to press the matter at present and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 232:

Page 301, line 37, leave out from beginning to end of line 11 on page 302.

My Lords, in moving Amendment No. 232, I shall speak also to Amendment No. 235. The purpose of both amendments is to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made and to ensure that testing is rooted in treatment and is not seen as an intervention in and of itself.

Paragraphs 1(2)(4E), (4F), (4G) and (4H) of Schedule 22 provide for the addition of testing requirements to action plan and supervision orders where a treatment requirement has already been decided upon for offenders aged 14 and over.

The children's organisations believe that those requirements are entirely unnecessary, given that where drug testing is believed by professionals to be necessary as part of treatment monitoring, it could already be detailed within a treatment plan under the treatment requirement. Failure to comply with treatment, including, therefore, any testing that formed part of the treatment programme, would already result in breach.

My principal concern in returning to this issue is that the addition of testing requirements on top of treatment requirements as separate breachable conditions of sentence will "rack up" the conditions imposed by an order, in turn heightening the risks of the young person's failure to comply with an order.

Drug treatment and testing orders for adults have shown a very high rate of breach—88 per cent of DTTOs made in 2002 were breached, as we heard reported in the media only recently. I am concerned that adding unnecessary requirements to similar orders for young people will be setting them up to fail, when it is in everyone's interests that they are supported to succeed in their treatment. The answer given by the noble Lord, Lord Bassam, in Committee did nothing to convince me that there is no threat to the proportionality of the court's response if it uses those measures. I believe that it would create layers of additional requirements on the young person.

In response to my amendments tabled in Committee on this matter, the Minister clarified that the intention behind the attachment of testing requirements, where a treatment requirement is already being made, is consistent with the other provisions for drug testing at the charge, pre-sentence and licence stages. However, there is an important difference. In other cases, testing is proposed as a means of identifying possible treatment needs. However, in the case of a young person who is already known and identified as having a drug problem, a court-ordered requirement for testing, concurrent with the treatment regime, is clearly not about identifying treatment needs. In fact, it gives a clear expression at the outset of treatment that there is a lack of belief or trust that the young person will be able to succeed in his treatment. That is the case to such an extent that testing should be made separately a compulsory and breachable requirement.

That is not to argue against the value of testing by the treatment provider in certain cases as a means of monitoring the young person's progress. Treatment providers can, and do, use drug testing to monitor progress and, more importantly, to ensure the safety of the young person where he is being prescribed medication. It should be possible to test where it is considered appropriate as part of treatment.

In Committee, the Minister stated that the testing requirements in these provisions were consistent with those made in drug treatment and testing orders. The evaluation of drug treatment and testing order pilots commissioned by the Home Office found that rates of positive tests were high, although they did not necessarily reflect a failure to progress with treatment. The report of the evaluation stated that for those who are quick to abstain successfully from class A drugs, positive tests can reinforce success. However, it also reported that,

"frequent testing is expensive and pointless for those who continue to use drugs; and, tests can be destructive to the motivation of those who are reducing their drug use but not managing to stop it completely".

That is taken from Home Office Research Study 212, 2000.

The same evaluation found that older offenders who had been dependent for longer were more likely to do well under the orders because of their stronger desire finally to give up drugs. Given that the young people who will be subject to these new provisions will be on average at least 10 years younger than the average DTTO offender during the DTTO pilots, these findings should be considered an important source of information about their likely impact on the motivation of young people who may be working hard but succeeding only slowly with the difficult process of coming off class A drugs.

I believe that the case has not been made for attaching a separate testing requirement on top of a treatment requirement to an action plan and supervision order. The amendments would reflect the reality of treatment provision. Testing is not and should not be seen as a stand-alone intervention where drug use has already been identified. I beg to move.

My Lords, Amendments Nos. 232 and 235 would remove the ability of the court to include a drug-testing requirement alongside the treatment requirement for those aged 14 and over as part of a coherent action plan order or a supervision order.

It is worth repeating that the purpose of this provision is not to set up young offenders to fail, as the noble Baroness suggested may happen. Allowing a testing requirement to be included in the orders is necessary to assist the responsible officer or treatment provider in ascertaining whether the treatment the offender is receiving is effective. It is also a highly useful tool for the treatment provider to tailor the treatment according to the needs of the offender.

Testing is integral to the treatment and an indicator of the young offender's progress with the treatment he is receiving. As we have stated in the past, we anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a chaotic and disturbed lifestyle. We further anticipate and suggest that the testing requirement will be used primarily in the case of misuse of specified class A drugs which are the drugs which are commonly acknowledged to cause the most harm. As we have also said, we intend to introduce these provisions in limited areas initially so that their effectiveness can be further evaluated.

I fully understand the arguments that have been put forward that this adds another layer to the requirements of the order and therefore another condition which could be breached. However, as we have made clear, we recognise the multiple problems often affecting young offenders such as those who need treatment for their drug misuse in addition to other programmes for their offending behaviour. We also recognise that it will take time for them to become drug free. These considerations will be taken into account when the issue of breach is considered. I assure the noble Baroness, as we propose to make clear in guidance, that an assessment of breach will be made on the basis of the offender's overall progress and compliance with the elements of the order.

For those reasons we believe that the amendments should be resisted. I cannot agree that this is a stand-alone provision. We do not see it in that way, but as part of a cohesive and coherent programme. For those reasons we shall continue to resist the amendments which were similarly moved in Committee.

My Lords, I thank the Minister for his response. I accept that any demotivating element or feeling that a child has been set up to fail would be an unintended consequence. However, it is a real consideration that should be taken into account. If a testing order is not made an essential element of the action plan, it does not mean that testing could not take place. What it boils down to is the fact that I would rather leave it to the professionals to decide whether it would help a young person to progress. That is the way that it would work best in the interests of a young person coming off drugs. Clearly, we share that objective with the Government. I do not intend to press the amendment. I thank the Minister for his further explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 233 to 235 not moved.]

Schedule 24 [Increase in maximum term for certain summary offences]:

moved Amendment No. 235ZA:

Page 319, line 34, at end insert—

"(4A) In section 62B (failure to comply with direction under section 62A: offences), in subsection (3), for "3 months" there is substituted "51 weeks"."

My Lords, in moving Amendment No. 235ZA I shall speak also to Amendments Nos. 235ZB and 235ZC. I hope that I can take these matters very shortly. These amendments increase the maximum penalties for the offences linked to measures in the Anti-social Behaviour Bill to deal with trespasses on land, raves and noisy premises, so as to ensure that they are compatible with the new sentencing framework in the Criminal Justice Bill. I beg to move.

My Lords, I am surprised to see an amendment to the Anti-social Behaviour Bill, which is not yet law, incorporated in this Bill. Perhaps the Minister can explain that apparent anomaly.

As regards Amendment No. 235ZC, I understood from our earlier discussions on anti-social behaviour that closure of noisy premises was intended to be a very short-term measure so that an immediate problem could be sorted out and a serious nuisance stopped for a short period. Now it appears that three months is to be extended to 51 weeks. Can the noble Baroness account for that?

My Lords, that is in order to make the provisions compatible. I had sought to shorten the debate, but I am happy to explain how each of the amendments operates.

Amendments Nos. 235ZA, 235ZB and 235ZC, to which the noble Lord, Lord Hylton, made reference, make the necessary changes to the maximum penalties available for certain offences in the Anti-social Behaviour Bill so as to ensure that they may be compatible with the new sentencing framework. By adding these offences to Schedule 24 they will have their maximum penalties increased from three months to 51 weeks' imprisonment on the introduction of the new short custodial sentences contained in the Criminal Justice Bill. It simply allows the court to deal with them in an appropriate way and make them subject to those provisions.

Amendments Nos. 235ZA and 235ZB bring the penalties to deal with raves and trespasses on land in the Anti-social Behaviour Bill into line with the penalties for similar offences, which are already listed in Schedule 24. We have tabled them at this stage as it is likely—I put it no higher—that the Anti-social Behaviour Bill will precede this Bill on to the statute book.

Amendment No. 235ZC amends the maximum penalty for the offence of opening premises in contravention of a closure order under Clause 46 of the Anti-social Behaviour Bill. This clause deals with the closure of noisy premises so the two need to dovetail with one another. The synergy is there and will now be reflected in the Bill. I hope, therefore, that we shall not have to return to it for further amendment. I have learnt the lesson from this that short-cuts are never really worth taking.

On Question, amendment agreed to.

moved Amendment No. 235ZB:

Page 319, line 36, leave out "subsection (6)" and insert "subsections (6) and (7B)"

On Question, amendment agreed to.

moved Amendment No. 235ZC:

Page 321, line 35, at end insert—