Criminal Justice and Immigration Bill

– in the House of Lords at 3:35 pm on 27th February 2008.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 3:35 pm, 27th February 2008

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. With the leave of the House, perhaps I may make a few remarks before we move into Committee.

The first priority of the Government is to ensure public safety and it is with this overriding duty in mind that we have been considering how best to move forward with the Bill. The Government hope that the Bill will receive Royal Assent by 8 May and perhaps I may explain to the House why it is necessary to have such a deadline. The House will be aware that the Bill now includes provisions in Clauses 189 and 190 to restore the statutory provision on inducing prison officers to take industrial action. We have included such a provision in the Bill following the decision of the Prison Officers' Association, representing prison officers, to withdraw, with effect from 8 May this year, from the existing voluntary joint industrial relations procedural agreement with the Prison Service. I stress that the provisions in Clauses 189 and 190 are a reserve power. In the event of a new voluntary agreement being reached between the POA and the Prison Service, the Bill provides for the statutory prohibition on industrial action to be suspended.

We are taking this action to ensure that protections are in place to avoid disruption to the prison estate of the kind we witnessed on 29 August last year. While our preferred solution has been and remains for a negotiated non-strike agreement with the POA, I regret that recent events mean that it is unlikely that any such agreement will be reached in the foreseeable future. The POA special delegates conference on 19 February passed by an overwhelming majority a motion mandating that any further agreement must not constitute a no-strike agreement, nor should it prevent the campaign to fight to regain full trade union rights. It is the Government's continued hope that the ongoing Ed Sweeney talks will enable more positive engagement between the POA and the Prison Service. However, given the position adopted by the POA at the special delegates conference, it is clear that we cannot responsibly allow for a gap between the termination of the existing voluntary agreement and the statutory bar on industrial action taking effect.

The loss of a scheduled Committee day on 20 February to the Banking (Special Provisions) Bill has not helped us to maintain the progress necessary to ensure that Royal Assent is secured by 8 May. In these circumstances, my right honourable friend the Minister of State for Justice, Mr David Hanson, and I have in the past few days been discussing through the usual channels with our Front Bench opposites and their counterparts in the other place how we can speed up passage of the Bill. Noble Lords will be already aware that we have withdrawn Parts 4 and 5 from the Bill, but we have now concluded that it is necessary to withdraw further provisions from the Bill so that we can achieve Royal Assent in good time.

Accordingly, I wish to inform the House that we will be withdrawing the provisions relating to criminal appeals in Clauses 42 and 43 and to the prostitution provisions in Clauses 123 to 125. In addition to withdrawing those provisions, we will be bringing forward amendments, either in Committee or on Report, to address matters which have been raised on other parts of the Bill. I am grateful to noble Lords from all sides of the House for their assistance. I hope that we can make the necessary progress so that the Prison Service can continue to operate without fear of disruption from 8 May.

Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, normally when Governments get themselves into a pickle people say to them, "Yah, boo, sucks. You've made a mess of it". I think that when Governments get themselves into a pickle and then get themselves out of it, one ought to congratulate them and say, "Well done for taking a sensible course". So perhaps I may say, "Well done the Government for taking a sensible course".

I am slightly disappointed because preferably my noble friend Lady Stern, who is not in her place, or myself would have liked to be involved in these discussions for the simple reason that we have been deeply involved with the Joint Select Committee on Human Rights, which has had, I hope, a serious influence on the Bill. It would have been quite helpful had we been kept in the loop. However, well done the Government for not going on digging. Let this be an example to Conservative Governments in the future.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, I shall make no observations about my noble friend's intervention. We quite understand the reasons why the Government wish to get their Bill by 8 May. We are extremely pleased that they have decided to drop Clause 42 which, as the Minister well knows, we regard as deeply pernicious. We also think the Government are wise to drop Clauses 123 to 125, which concern certain aspects of prostitution. However, we would be dismayed if next year, which will almost inevitably be a year of yet another Criminal Justice Bill, we should find these provisions reappearing in exactly the same form. We would like to think that the Government's change of heart on these matters is not just a tactical manoeuvre but a genuine reconsideration of the merits of what they have done.

As to all the other matters, we will wait and see what amendments emerge from the Government. It is impossible to commit ourselves one way or other. As the Bill makes its way through the Committee stage, no doubt we shall find the Government's new position gradually revealed. We are particularly interested in violent offender orders, which we think, in their present draft, are deeply defective. We will be looking to the Government for some fundamental changes if they are going to have anything other than an extremely rocky ride. I am grateful to the Minister for his statement.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, I am not as generous in this matter as the noble Earl, Lord Onslow, and noble Lords probably do not expect me to be. This is just how not to legislate. The Bill started off in the House of Commons with about 139 clauses and on to that skeleton were piled topic after topic. When it came to Report, a further 200 clauses and amendments were introduced by the Government that the other place had no time whatever to debate so the ship steamed to this House leaking in every way. The Government are now throwing over the ballast; they threw away Parts 4 and 5 at the very beginning, and now they are throwing away more parts of the Bill and we will have further amendments in due course. This is an object lesson in how not to overload a Bill and how not to try to push through any idea that has come into the head of the Home Office or the Ministry of Justice in the way in which the Government have tried to do.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I, too, want to say how glad I am that the Government have dropped, in particular, Clauses 42 and 43. I echo what the noble Lord, Lord Kingsland, said. I hope that they will not come back next year, but in case they do, I intend to keep the speech I would have made this afternoon.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, I preface my question with my congratulations to the Government on pressing this matter forward and in the hope that the talks with Ed Sweeney will provide a voluntary answer to the question of industrial action. Having said that, I ask my noble friend—he need not answer now—to consider the legal problems involved in the new formula in Clause 189(2); namely, the illegality of taking or continuing to take industrial action. I give my full support to the Government in pressing the Bill to the statute book. I was going to speak on that clause, but shall not now do so when it passes through the House.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, the Minister will know, because his noble friend Lord West was at the meeting, that there was concern all around the House about the clauses on prostitution. I am sure that that feeling will be echoed on all sides of the House. I hope that the Government will use the intervening time to come forward with a proper Bill based on complete research. The Government were part of the way through: they have completed a strategy; Ministers have visited Sweden; they have not visited New Zealand to see an example of different practice. I hope that when they bring back a Bill it will be in a more complete form.

I also make a plea to the Government that they think again about the extreme porn clauses. They would benefit enormously from pre-legislative scrutiny, which would enable us to discuss them in a far more considered and necessarily sensitive atmosphere before they were brought on to the Floor of the House.

Photo of Lord Henley Lord Henley Shadow Minister, Justice 3:45 pm, 27th February 2008

My Lords, I am slightly confused. The Minister has told us that Clauses 42 and 43 will be dropped, which I presume means that the amendments which the noble and learned Lord, Lord Lloyd, and others have tabled will not be debated. We do not have even a manuscript amendment from the Government at this stage. Will we debate the amendments of the noble and learned Lord, Lord Lloyd? Perhaps the noble and learned Lord will not move them. The situation creates confusion, because we want to know how far the Minister thinks we will go today. I ask not only as one active on the Bill, but as a former Business manager. It is an important question. Will we get on to Part 7, where we will move on to completely different subjects from those in Part 2, to the end of which we will come fairly soon? We will then have Parts 3, 4 and 5, some of which the Government introduced in the Commons and then removed in this House, which is another sign of the Government's confusion. I do not know how many other parts of the Bill the Government will remove. I on the Front Bench and, I have no doubt, many colleagues on the Back Benches are deeply confused as to how far we are supposed to go today, what we are supposed to do today, and where we are.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, if the Government are concerned to get the Bill through by 8 May, other clauses could be removed as well. Like other noble Lords, I have had a lot of correspondence about Clause 126, which was inserted in the Bill after it had been published and halfway through its passage through the House of Commons. In addition, an amendment to the clause has been tabled which is bound to take quite a lot of time. Will the Minister consider withdrawing that clause as well, which would be helpful to him?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I thank noble Lords for their generous remarks on my announcement. As on Lords reform, the noble Earl, Lord Onslow, and I once again find ourselves in agreement. I say to him and the noble Baroness, Lady Stern, who is not in her place, that one would of course wish to make sure that all noble Lords who have taken part in the Bill are kept informed. This has been a fast moving feast, but I shall do my best to take note of what the noble Earl said.

Other matters will of course come to be discussed. Discussions are taking place in the usual channels, on which I shall be able to report in due course. I am not prepared to respond to what is not so much a shopping list as a list of things that noble Lords do not like. It would not be appropriate to respond to the specific issues that were raised by a number of noble Lords today.

The noble Lord, Lord Thomas of Gresford, who is ever complimentary about the legislative—

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, the Minister has asked the House to agree, virtually without any discussion, to his shopping list of matters to be withdrawn. Why on earth will he not take into account the suggestions of noble Lords from other parts of the House and from the Back Benches? Do we not have any say these days?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, of course. The noble Lord has never been backward in making his views known. I did not say that I would not take account of comments made by noble Lords this afternoon. What is not appropriate is to try to negotiate across the Floor of the House on the other suggestions that have been made. However, discussions will continue.

The Government simply seek to inform noble Lords that when, for instance, we come to the noble and learned Lord, Lord Lloyd, proposing that Clauses 42 and 43 do not stand part of the Bill, we will not oppose that. In answer to the noble Lord, Lord Henley, that is how we expect the business to be dealt with. There may be some consequential amendments as a result of the noble and learned Lord opposing those clauses, which the Government would introduce on Report. But that is how we seek to proceed. There is a little time before we reach that stage and, if there are other matters of concern, the usual channels will be available and will speak to the noble and learned Lord. I have tried to keep him informed and am most grateful to him for his co-operation.

I think that that covers the matters raised. I am most grateful to the House for its tolerance for allowing me to explain the Government's proposals in this area.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

My Lords, will the Minister be kind enough to indicate an answer to the question that has been raised on how far we are going to get? Is he planning to get as far as Clause 128, the clause in which I happen to be interested, as are the noble Lords, Lord Lucas and Lord Thomas of Gresford? When I came here today it seemed to be very well down the batting list and that we would get to it next week. Is it coming up this afternoon?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, it would be very foolish of me to attempt to dictate to the House where we should get to tonight—and almost certainly the House would ensure that we did not reach it. It would be very unlikely that we would go into Part 7, if that helps. It is very difficult to give an indication of where we will get to.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, with every Bill that one has ever debated there is an aim. You come in and ask at the desk how long the debate is going to go on for and the desk will say that the aim is to get to Amendment No. 100, or whatever. Sometimes we hit the target and sometimes we do not, but surely the Minister—after his evisceration of the Bill—must have some idea about which amendment we will get to tonight.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, perhaps I can assist the Minister. Following the interventions of the noble and learned Lord, Lord Neill, and my noble friend Lord Onslow, perhaps the Minister could give a guarantee that we would not get on to Part 7. I was going to say that we should not go beyond Part 6, but then Parts 5 and 6 do not exist any more.

Noble Lords:

Oh!

Photo of Lord Henley Lord Henley Shadow Minister, Justice

Sorry, my Lords, it is Parts 4 and 5 that do not exist. But I am quite happy to do Part 6 tonight, partly because no amendments have been tabled to it, as long as we do not reach Part 7. That would make life a lot easier for the noble and learned Lord, Lord Neill, and the rest of the House.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I am very happy to agree on behalf of the Government that we should not go beyond Part 6, if that would help noble Lords. Beyond that I ought not to say anything.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 29 [Release of prisoners after recall]:

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

moved Amendment No. 93:

Clause 29, page 20, line 14, at end insert ", subject to the agreement of a Crown Court judge"

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I shall also speak to the other amendments in this group. The approach we have taken to Clauses 29 and 31 is to conclude that there is insufficient involvement by the judiciary in the decisions that have to be made. Accordingly, in the case of Clause 29 we have tabled several amendments which contain the expression,

"subject to the agreement of a Crown Court judge", and in the case of Clause 31 we have inserted,

"with the approval of the Lord Chief Justice or a judge designated by him".

Clause 29 deals essentially with three categories of offenders. The first is offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. If such prisoners, having been assessed as not presenting a risk of harm to the public, are recalled, the Bill says that that will be for a fixed period of up to 28 days, at which time they will automatically be rereleased.

The second group is determinate sentence prisoners serving sentences for crimes of a sexual or violent nature, or who have been assessed as unsuitable for automatic rerelease because they present a risk of serious harm, or have already served one fixed-term recall and as a result are no longer eligible for automatic rerelease. The Bill allows for such prisoners to be rereleased through two routes. In the first the Secretary of State has discretion to examine the case and determine whether rerelease should occur. That involves determining that the offender is safe to be released. A decision will be taken by the Secretary of State alone on the basis of an up-to-date risk assessment provided by probation staff. If the Secretary of State is not satisfied on the matter, there remains the option, as exists now, of the Parole Board.

A third and final category in the amendment, which also replicates the original clause, is those sexual or violent offenders who are serving extended sentences. Such prisoners will be rereleased only if the Parole Board recommends it. If the board does not consider it safe to rerelease them following their recall, they could be held until the end of their sentence.

At the outset I said that my main concern about the treatment of all these categories was the absence of any judicial input or discretion. That applies in two different ways depending on which category we are looking at. In the first category, which is offences that are neither violent nor of a sexual nature, what the Bill requires is too automatic; in every case, irrespective of the nature of the offence or the conduct of the individual, there will be a straightforward return to prison for 28 days and then automatic release.

That simply does not take account of the specific circumstances of the matter. It treats all breaches as having exactly the same seriousness. There should be a discretion here for the judiciary as to whether to recall to prison and for what period. What should determine the length of the prison sentence to which the individual returns should be the nature and seriousness of the breach. Nothing in the Bill allows that to happen. On the other hand, when one looks at category 2, one finds that the Secretary of State is given an exclusive right to determine what should happen. We consider this wholly inappropriate. If somebody other than the judge should be given that discretion, it ought in all cases to be the Parole Board. As far as Clause 29 is concerned, these problems would be cured if the agreement of a Crown Court judge was required before the matter was finally determined.

A rather different consideration is at issue in Clause 31, the explanatory title of which—"Recall of life prisoners: abolition of requirement for recommendation by Parole Board"—is misleading. Under Section 32 of the Crime (Sentences) Act 1997, the Home Secretary already has the power to recall a prisoner serving a life sentence released on licence without a prior recommendation from the Parole Board. Although the Home Secretary is normally required to follow the board's recommendation, Section 32(2) of the 1997 Act provides that the Home Secretary may recall a prisoner without a prior recommendation in exceptional cases,

"where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable".

Rather than enable the Home Secretary to recall life prisoners without a recommendation—a power he already has under Section 32(2)—the true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases.

As far as I am aware the Government have put forward no evidence to show that the current provisions have ever inhibited the Home Secretary's ability to recall a life prisoner where he or she has deemed it necessary to do so. Nor is there any evidence to show that the current power to recall without a recommendation in exceptional cases has ever proved insufficient. In the absence of such evidence, we see no sound policy reason why the Home Secretary should be freed of the requirement to act in the public interest when recalling a prisoner. In the absence of such a safeguard it is clear that an elected politician would be susceptible to public disquiet and anger about individual cases. The liberty of the subject, even that of a prisoner convicted of the most heinous of crimes, is too important to be left vulnerable to such pressures. I beg to move.

Photo of The Earl of Onslow The Earl of Onslow Conservative 4:00 pm, 27th February 2008

It strikes me as bad principle that the Executive should be too involved in sentencing, especially extending sentencing. It is different if it can be classed, for want of a better word, as a prerogative of mercy; in other words, the Crown, through her servants, can show somebody mercy and reduce a sentence. But the Crown, through her servants, should not be able to increase a sentence, which is in effect what denying a release order or calling somebody back comprises.

I am guessing a little here but I suspect that this applies to a very large number of people. I suggest that most of the decisions will be taken by officials. I make no attack on officials; they are men of honour and integrity and they make the right judgment in their view, but surely they would be acting as judges in effect. If that is the case, should this not be done by judges themselves, given all the publicity aspects attached to the judiciary because this is done in open court? For those reasons I believe that my noble friend on the Front Bench has produced exactly the right set of amendments for this occasion.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I support the amendment moved by the noble Lord, Lord Kingsland, and spoken to by the noble Earl, Lord Onslow. The fundamental point about the involvement of the judiciary, and not leaving it solely to the Executive, is important. As the noble Earl, Lord Onslow, indicated, there is no doubt as to the diligence and proper way in which these matters will be addressed by officials or, indeed, by a Secretary of State.

Nevertheless, the issues require some form of judicial or quasi-judicial input and consideration. That is what I understand the amendments of the noble Lord, Lord Kingsland, to seek to achieve. Particularly on Clause 31, it is incumbent on the Minister to explain why the Government wish this measure, which would remove from the equation—at the initial stage of recall, anyway—the role of the Parole Board. The noble Lord, Lord Kingsland, has given a good analysis of the current situation. Secretaries of State are not currently fettered if in an emergency they wish to recall a prisoner on licence before the Parole Board has an opportunity to consider the particular case. That is currently open to the Secretary of State under Section 32 of the Crime (Sentences) Act 1997; although it is important to note that, in doing so, the Secretary of State must have regard to whether it is expedient in the public interest to recall without reference to the Parole Board.

The concern on these Benches is that taking away that condition of having regard to the public interest and putting these matters entirely in the hands of the Secretary of State without prior reference to the Parole Board gives too much power to the Executive without proper oversight from either the judiciary or the Parole Board. That is not an appropriate power to be given to the Secretary of State. The important point for the Government to answer is what mischief, concern or problem they are seeking to address through this. Are the provisions under Section 32(2) of the Crime (Sentences) Act 1997 not adequate to address situations where there is a degree of urgency in recalling a prisoner—that is, revoking a licence and recalling someone to prison?

Before we give that unfettered power to the Secretary of State, a case must be made for it. The best thing to do would be to leave the law as it is. However, if the Government insist on the clause in this Bill, the kind of judicial oversight proposed by the noble Lord, Lord Kingsland, would be an important check on the Executive. However, the Government have a duty to explain to the House the reason for Clause 31.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I have some sympathy with the amendment of the noble Lord, Lord Kingsland. I appreciate that, in an ideal world, judicial decisions should never be made by non-judicial personnel. That has never worked out in practice. As far as the Home Office is concerned, quasi-judicial decisions have very much been a part of its role all along. One only has to think back to pre-1965 days, when the Home Secretary had the ultimate discretion to commute a sentence of death to one of life imprisonment. One can hardly think of a judicial decision that so blatantly belonged more to the judiciary than a politician.

There is some lack of consistency here, which is not something one could often hold against the noble Lord, Lord Kingsland, who is normally so perfect in his remorseless and unremitting logic. In this situation, however, we have a case where a person is already within the bounds of a sentence. Within the scope of that sentence, he has already been released. Further along the line, he has committed some breach of licence and been recalled, not by a judge, but by the Home Secretary. If in fact there was an overwhelming case for a judicial person to intervene here, it would be surely at that stage—the stage of the recall. The infraction for which the prisoner is responsible may, indeed, have been fairly trivial and borderline, but the Secretary of State—in practice, a skilled and senior official—will determine whether he should be recalled. Once you have allowed that to take place, surely it is not illogical to allow the release after recall, still within the bracket of the totality of that sentence, to be determined by a non-judicial officer—although one trusts that in his semi-judicial capacity he would act judiciously.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Would not the noble Lord think it appropriate that the civil servant who took the decision to seek recall should make his case to a judicial personage—whether it be the Lord Chief Justice or a judge appointed by him? Surely that is the way in which the system works in this country.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I do not think that there would be anything contrary to principle for that to happen, but it would be much more important in the first place—in the determination of whether a person should be recalled—rather than at the latter stage. At that latter stage, the non-judicial officer would undoubtedly have before him or her a vast array of reports that better enabled a decision to be made on the safety of releasing that person—more than when making the original decision about recall. Furthermore, I cannot speak for current circuit judges, but as a former circuit judge, I doubt very much whether they would want their desks to be cluttered by vast lists of responsibilities of this nature.

Photo of The Earl of Onslow The Earl of Onslow Conservative

I am sorry to intervene again, but surely what the noble Lord has argued for in his package of sentences is that people should be recalled only with judicial oversight, rather than just at the whim of the Secretary of State. Personally, that is what I would prefer, because it relates to the great question of the separation of powers.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

The noble Earl is entirely correct in terms of pure theory and logic, but I doubt very much whether what he said could be operated in practice. The sheer burden of the totality of these decisions is not one that the present staffing of the judiciary would be able to bear. I stand to be corrected with regard to that.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Would the noble Lord consider that this is confusion? He referred to the death penalty and the power of the Home Secretary to commute it. That was an exercise of the royal prerogative of mercy, was it not? It is really nothing to do with the sort of issue that we are discussing. Has not that system in some way percolated into the idea that a civil servant, by a stroke of a pen, can bring a person back to prison, perhaps for the rest of his life?

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

The fact that it was the exercise of the royal prerogative of mercy does not affect the argument, in my respectful submission. It was one of the most fundamental decisions that could ever be made in our criminal system. It was a decision whereby all the circumstances of the case had to be brought into account, and if ever there was a decision that should have been made by the judiciary, rather than by the Administration, that was it. The fact that the royal prerogative was involved does not change the situation. For example, the old law—and, indeed, the current law—of wardship vests in a judge of the High Court powers which have been delegated by Her Majesty the Queen as parens patriae—the parent of the nation. The fact that it is an exercise of the royal prerogative does not mean to say that a judge is not entitled to act in that capacity.

Photo of The Earl of Onslow The Earl of Onslow Conservative

Surely the parallel with the death penalty is false, because what the Home Secretary did not have the power to do was to say, if the man had been sentenced to life imprisonment, "No, we'll have him hanged instead". He could not increase the sentence; he could only decrease it. Those of us on this side are unhappy that the present Bill offers the prospect that the Executive can, in effect, increase a sentence, rather than decrease it. In my view, the Executive can decrease but not increase.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

We can debate endlessly on this matter; indeed, I am somewhat flattered that my remarks, innocent as they were, have been taken up and challenged by so many noble Lords. The fact is that there is no increasing or decreasing in sentence. There is the totality of sentence within which there has been, first, a licence, secondly, a breach of licence and, thirdly, a release of a person after such a breach—but all within the sentence.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 4:15 pm, 27th February 2008

This has been a very interesting debate, but in debating the balance between the roles of the Executive and the judiciary we have perhaps not discussed the role of the Parole Board. That ought to provide a great deal of reassurance to noble Lords on these matters, because of the rights of persons concerned to ask the board to consider them. That is how we get the balance right between having the necessary assurances that these matters are dealt with appropriately, while having a system that is efficient and does not produce those great burdens either for the Parole Board or the judiciary if the amendments were to be accepted.

I would say to the noble Earl, Lord Onslow, that these recalls are not to be done at a stroke of an official's pen, affecting the rest of an offender's life. All offenders have their right to have their recall reviewed by the Parole Board and, as the noble Lord, Lord Elystan-Morgan, suggested, the Executive cannot increase a sentence. A recall will be within the sentence period laid down by the court on conviction. The question is: where is the balance?

Photo of The Earl of Onslow The Earl of Onslow Conservative

It is the punishment that is being increased within the sentence. Lay persons, or non-lawyers like me, at least, would see a difference between being "in nick" and "not in nick". It is much nicer not be in nick than to be there. Therefore, if that "nickdom" is increased, it counts as a punishment. I quite accept that what the noble Lord, Lord Elystan-Morgan, and the Minister are saying is technically correct, but that is how it appears to a non-technician.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Well, I am a non-technician in this area, but it seems to me that one cannot ignore the conditions under which recall takes place and the criteria that have to be followed. I argue that in general that we have the right balance, although no doubt Members of the Committee will want to discuss that further.

Perhaps I can explain the Government's intent with the clauses and respond to a number of the points raised. The noble Lord, Lord Kingsland, has suggested in his amendments a proposal to refer to the Crown Court prisoners who have either been recalled for a fixed period, or who have been assessed by the Secretary of State as safe to re-release, to consider whether the offender is indeed safe to be re-released.

One of our concerns, as the noble Lord, Lord Elystan-Morgan suggested, is that this would be a rather slow and cumbersome process. We do not believe that the unnecessary involvement of the courts would enhance public protection, but it would place a substantial burden on the court service. For instance, to give some indication of the scale of this burden, in 2007-08 the Parole Board conducted more than 16,000 recall reviews, which is a huge number. I understand that part of the motivation is to ensure that public protection is enhanced. Prisoners serving sentences for sexual or violent offences are already automatically precluded from being given a fixed-term recall. Further, under the proposed provisions, a fixed-term recall can be given only to offenders who are not assessed as presenting a risk of serious harm.

The initial risk assessment will be conducted by the Probation Service, which is well placed to assess the level of risk presented by an offender. The Secretary of State will give careful consideration to any assessment showing that an offender presents a risk of serious harm. Such an assessment will have a significant influence in determining whether to recall for a fixed term. Here, as a general rule, the Secretary of State would not look to take an executive decision to re-release an offender serving a standard recall if that offender was assessed as potentially presenting a risk of harm. In that case, the prisoner would be referred to the Parole Board.

The purpose of these re-release provisions is to ensure that recall is a proportionate, preventive measure and that recalled offenders who do not present a risk of harm are not held in custody any longer than is necessary to prevent further reoffending. They are also designed to reduce the burden on the Parole Board and Prison Service and will assist in achieving the Government's stated objective to focus prison and Parole Board resources on the most dangerous offenders.

The noble Lord's Amendments Nos. 94 and 97 would remove the power to amend the period of time that an offender must serve before being automatically re-released if given a fixed-term recall, or the period that other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board. These re-release provisions are self-evidently new, and we want to monitor them closely. If operational experience demonstrates that by amending the period offenders spend in custody we can enhance public protection or improve future compliance, then we need a mechanism for making the necessary adjustment. The amendment would deny us the opportunity to amend the number of days that an offender would serve on recall or would be required to wait before being referred to the Parole Board other than by amending the Act through primary legislation. The order-making power that the amendments seek to remove is subject to the affirmative resolution procedure. The 28—day period cannot be changed without the approval of both Houses, which we believe provides a sufficient safeguard.

Turning to Amendment No. 98, the Government recognise that recalling a life-sentence prisoner has potentially serious consequences—it could result in the offender spending the rest of his life in custody. However, the purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially very dangerous offenders from the community. It is a crucial means of protecting the public, but such action is not taken lightly. The test to be applied when considering recall is whether the offender presents an unacceptable risk to life or limb. Clearly that can happen at any time of the day or night, which I believe makes it impractical to involve the courts at that stage.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I think that there will be a lot of sympathy with what the Minister says about the need to have some swift means of recall, but what, in practical terms, has been the problem with exercising the power of the Secretary of State under Section 32(2) of the Crime (Sentences) Act 1997?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble Lord is right that that power is used. Essentially, we are seeking to regularise the position. As he said, Section 32(2) allows the Secretary of State to revoke a licence and recall a lifer without consulting the Parole Board only where it is in the public interest to do so, not as the basic position. As most cases need action in relation to the prisoner serving the life sentence, the risk to life and limb test has to be met. We are seeking to regularise that position.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Why would the Secretary of State want to recall a prisoner on licence if it was not expedient and in the public interest?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

It is no more than that. I shall certainly be happy to write to noble Lords with further clarification on the technical matters.

We believe that we have the balance right between the role of the Executive and the judiciary. The balance is achieved by the Secretary of State being able to take swift, preventive action, but the safeguards are in place to ensure that the decision taken by the Executive is open to challenge by the offender and is reviewed by an independent body.

Clause 31 ensures that every life prisoner recalled to custody will be informed of the reasons for his recall and of his right to make representations against the recall. In addition, all recalled life prisoners will be referred to the Parole Board for the recall to be reviewed. If the board considers that an offender is safe to be released, the Secretary of State must release the offender. Those are the safeguards that are built in to this mechanism.

Amendment No. 98 would require the authorities to secure the prior agreement of a High Court judge to recall a life sentence prisoner who has been assessed by the Probation Service as presenting an increased danger to the public. The concern is that that would make the recall process slower and more bureaucratic. On the construct of the Bill, we think that we have got the balance right between the need to take immediate action, on occasions, and the safeguards that are presented by the Parole Board and the representations that can be made to it. I hope that that is a constructive response to those points.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I am most grateful to the Minister and to all noble Lords who have spoken in this debate. On Clause 31, I understand the concern of the Minister about the potential lack of flexibility if the agreement of the Lord Chief Justice is required before action can be taken. I would like to reflect on that between now and Report. However, I simply do not understand why any change in the current situation is needed. The reasons have been very well given by both speakers from the Liberal Democrat Benches. The true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases. But, as the noble Lord, Lord Thomas of Gresford, said, why does he need freeing? In these circumstances, he can act only in the public interest and to remove that requirement would create not just uncertainty but suspicion in the minds of the public that there is some ulterior motive for the Secretary of State intervening.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Does the noble Lord agree that if he were not acting in the public interest, judicial review would follow?

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

The noble Lord, Lord Thomas of Gresford, makes another very good point. I would have thought it was very much in the Government's interest for the status quo to continue. The Secretary of State will be in no way constrained in the future from doing what he has always done in the past. Irrespective of what position the Government take on my suggestion about the Lord Chief Justice, in my submission they would be well advised to leave the current situation as it stands.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

As I have been advised that this is needed to regularise the position, would it be helpful and constructive if I agree to arrange for discussions on this matter between Committee and Report to enable noble Lords to consider this further?

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 4:30 pm, 27th February 2008

That is a characteristically helpful intervention by the noble Lord, and I am grateful for his having made it.

We have two preoccupations on Clause 29. First, the Minister—this is no criticism of him—did not address the inflexibility of the 28 days. That inflexibility is a serious defect. I know that there are provisions in the Bill to extend the period or, indeed, to reduce it. However, our concern is not so much the length of the period but the inflexibility of the requirement that it should always be 28 days. We are talking about offences that are not violent or sexual.

The second issue, which has provoked a most interesting and stimulating debate in Committee, is the appropriateness of judicial involvement and the role of the Secretary of State rather than the Parole Board. I should have thought that Secretaries of State would be rather glad not to have this responsibility. On controversial matters, the first port of call of the newspapers—the tabloids, in particular—is the Home Office. It is the Secretary of State who is under the cosh. Surely it would be in his interests to implicate either the judiciary or the Parole Board in a decision that is often extremely politically sensitive.

I am not including just this Government in my observation; there has been a trend over, say, the past 20 years for Secretaries of State to offload certain types of activities on to so-called independent bodies—no doubt for very good reasons, but sometimes for the reason that it will relieve them from embarrassing political responsibilities. As I said, I should have thought that Secretaries of State would be rather glad not to have the responsibilities that the Government are inserting into the Bill. Apart from the jurisprudential dimensions, it is good politics to exclude the Secretary of State from these decisions. Why his role is being intensified escapes me.

I am grateful for the Minster's remarks about Clause 31. I hope that he will also think again about certain aspects of Clause 29 between now and Report. It is important to come back to this issue on Report, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

moved Amendment No. 93A:

Clause 29, page 20, line 32, at end insert—

"(8A) The reference in subsection (8) to a specified offence (within the meaning of section 224) includes a reference to—

(a) an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning of the Act in question) is a specified offence, and(b) an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is a specified offence.

(8B) Section 48 of the Armed Forces Act 2006 (attempts, conspiracy etc.) applies for the purposes of subsection (8A)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (8A)(b)."

On Question, amendment agreed to.

[Amendments Nos. 94 to 97 not moved.]

Clause 29, as amended, agreed to.

Clause 30 agreed to.

Clause 31 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:

[Amendment No. 98 not moved.]

On Question, Whether Clause 31 shall stand part of the Bill?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I do not intend to detain the Committee, as we have had a thorough examination of the issues—

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I am sorry to interrupt the noble Lord. He knows from what my noble friend said that we will be looking at this again before Report. Of course I do not want to shorten any of his wise words. As long as he understands that we require the clause to remain in the Bill for that purpose, I look forward to hearing what he has to say.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

The noble Lord, Lord Bach, pre-empted what I was going to say. I had heard what the Minister said and very much welcome it, which is why I said that I was not going to detain the Committee. However, when he engages in the consultation that he has offered us, he will see that we on these Benches—the noble Lord, Lord Kingsland, indicated his support for this position—are saying that if you remove words such as "it is expedient and in the public interest" from an existing statue, courts think that there must be some significance to their removal. We want to understand in further discussion why the words were removed and why they could not be imported into the Bill.

As background, what is the breakdown between recalls under Section 32(1) and Section 32(2) of the Crime (Sentences) Act 1997? Is the balance that most of them are done by the Secretary of State without prior recommendation from the Parole Board? I do not necessarily expect the Minister to give us that answer today, but that will be part of the discussion. We are not aware of any great cause célèbre where the Secretary of State has found that it has been impossible to recall a life sentence prisoner where there was an immediate danger. What is motivating the Government to introduce Clause 31 and take away some of the requirements and conditions under the existing law?

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I will make a brief attempt to answer the noble Lord, but I hope that he will be content with the fact that we are going to look at this again. No doubt discussion will take place in the usual way.

The problem has been that Section 32(1) requires the Secretary of State to act pursuant to a Parole Board recommendation to recall a lifer. Section 32(2) was the exception allowing the Secretary of State to revoke the licence and recall the lifer without consulting the Parole Board only where expedient in the public interest. As events have turned out—I have no figures—the vast majority of recalls for lifers have been under Section 32(2), not under Section 32(1). Concern has been expressed that, because the recalls are under Section 32(2), those who have been called back may regularly and on a large number of bases go to the court to say that it was not necessary for Section 32(2) to be used because it was not expedient in the public interest—in other words, there was no emergency. In that event, the attempt in the new provisions, which we will take away and look at again, was, as my noble friend said in answer to the previous set of amendments, to regularise what is actually happening; that was the thinking behind them. That is as far as I want to go in answering the noble Lord today.

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)]:

[Amendment No. 99 not moved.]

Clause 33 agreed to.

Clause 34 [Removal under Criminal Justice Act 2003]:

[Amendment No. 100 not moved.]

Clause 34 agreed to.

Clause 35 [Referral conditions]:

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

moved Amendment No. 101:

Clause 35, page 27, line 27, leave out from "occasion" to end of line 28 and insert "; or

(iii) has previously been referred to a youth offender panel under section 16 above and a further referral has been recommended by a member of a youth offending team, an officer of a local probation team, or a social worker of a local authority."

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

We now return to justice issues and referral orders in particular. Our amendment is intended to give the courts the power to make a second order rather than to give a custodial sentence. The circumstance in which we want that to happen is if a young person has previously been referred to a youth offender panel under Clause 16 and a further referral has been recommended either by a member of the youth offending team, by an officer of a local probation team or by a social worker of a local authority. I am aware that the Standing Committee for Youth Justice is extremely keen on this approach.

As a number of your Lordships are aware, referral orders are now being used on a large scale. There are somewhere between 15,000 to 20,000 a year, and they comprise around 35 per cent of court sentences for indictable offences by young people. It is fair to say that they have operated rather well. They involve more than 5,000 trained volunteers who chair and participate in panels, diagnosing the problems that young people face and trying to identify practical ways forward that are relevant to young people's problems. Even if we allow for those who pleaded guilty, the reconviction rates for young people who have been subject to a referral order have, by youth justice standards, been good. Based on the 2005 figures, which are the latest available, one-year reconviction rates for referral orders were 44 per cent, which are the lowest for any court sentence and compare favourably with other penalties—discharges are 61 per cent, fines are 63 per cent and reparation orders are 70 per cent—let alone community sentences, which are 70 per cent, and custody, which is 76 per cent.

When the amendment was debated in another place, the Minister, the right honourable David Hanson, objected to the option of the second order on three grounds. First, if a young person reoffends, they have clearly failed to take the restorative opportunity. Secondly, the referral order is deliberately designed to be targeted at those who receive a court sentence for the first time. Thirdly, the youth rehabilitation order introduced by the Bill, rather than a second referral order, is the appropriate next stage. In my submission, all these reasons are unconvincing.

The first argument did not address any of the reasons why the circumstances of a first order may have been particularly inappropriate or very different. The second argument gave no substantive reason why referral orders could not be operated selectively on a further conviction and was contradicted by the Government's own concession in the same debate, which allowed a referral order on a second court appearance. The third argument did not acknowledge the unique nature of the referral order and the erratic nature of young people's offending patterns, which mean that escalation should not be the automatic response.

Moreover, certain safeguards are built into the amendment. The use of a second referral order would be discretionary for the courts, with no obligation or presumption in favour of it. Referral order costs range up to around £1,500 and require the time of trained volunteers. The amendment would therefore limit the use to where the YOT or equivalent officer had recommended it to the court. It is they who administer the resources. In any case, if the court had to choose a YRO, this is generally unlikely to be cheaper. For all those reasons, I beg to move.

Photo of Lord Judd Lord Judd Labour 4:45 pm, 27th February 2008

I do not—I am sure that the noble Lord, Lord Kingsland, will forgive my saying this—make a practice of supporting Front-Bench opposition amendments, but on this occasion the logic of my experience leads me to strongly supporting the noble Lord's arguments. I think that I have referred before in our deliberations to the fact that, with the good offices of the Home Office as previously constituted, I visited a youth offending team and was incredibly impressed by the work that it was undertaking. The team was candid with me and made it clear that the anxieties about what might be happening to young offenders were not simply a preoccupation of academic sociologists or criminologists but were the very real concern of the people whom we charge with implementing such referral orders and tackling the front-line work. They completely shared the anxiety—as expressed informally to the Joint Committee on Human Rights, of which I was then a member, by the Council of Europe commission on human rights—that we were unnecessarily in danger of criminalising the young.

It seems to me that lying behind what is now proposed is the inference that a referral order is a sort of soft option. I see my noble friend Lord Bach shaking his head, but I am talking about how things are perceived. It is seen as a soft option—as an alternative to a stiffer sentence by a court. Of course, as I understand it, that is not the rationale or the logic of the procedure, which is to say, "Here we have vulnerable young people who have committed anti-social behaviour and who are in jeopardy of becoming criminalised. Therefore, we must work with them as best we can to reintroduce a sense of social responsibility and social discipline so that they do not drift into criminal behaviour and become subject to the criminal court procedure".

Here, we say that, if something goes wrong in the way that a particular referral order is being handled with the young person concerned and a breach of some kind occurs, there is no alternative but to push that young person into the criminal procedure. The youth offending team, to which we have entrusted the responsibility of working to prevent the criminalisation and to effect the rehabilitation of the youngster, may be arguing hard and saying, "In this particular circumstance, yes, there has been a breach but there really is a chance of getting things back on to a steady course", rather than simply and unimaginatively saying, "There is no alternative now but to commit the person to the criminal procedure".

The trouble about what is now proposed is that it undermines the enlightened, sensible logic of what we did by introducing such orders. I hope therefore that my noble friend can say something positive and reassuring in answer to this amendment. As we keep saying, and I will not tire of saying, in our deliberations, surely our objective must be the rehabilitation of the young person. Of course society must be protected, but the rehabilitation of the young person not only matters in terms of that young person, but is the long-term way to protect society. If we jeopardise it all by thrusting those young people into the criminal procedure, we are in danger of turning them into hardened offenders with all kinds of costs and hazards for the community down the line. It is just a most mistaken and unimaginative approach. I hope that my noble friend can say something reassuring.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

It would be presumptuous to add to what the noble Lord, Lord Judd, has said beyond that I strongly support this amendment. As has been said many times throughout our debates, when dealing with young offenders we are looking at ways of raising the threshold to avoid them being taken into custody and considering what we can best do to prevent custody becoming the option. So it is, if you like, lateral thought which brings me to support the proposal. When I think of all the things that can help in the process just outlined by the noble Lord, Lord Judd, two of them are continuity of instruction and continuity of help from people who have begun to establish a vital relationship with these young offenders—that is never easy but needs to be given the vital word "time" in order to work. Underlying this amendment is an opportunity not just to push custody further away, but also to provide more time for the most important people in this process, those working with the young, to do more to help them live a law-abiding and useful life.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

I, too, heartily support the amendment moved by—I shall persist in calling him my noble friend—the noble Lord, Lord Judd, and spoken to by the noble Lord, Lord Ramsbotham. The amendment recognises one of the essential qualities of a young person's offending: it is essentially chaotic, impulsive and not thought through. The mistake currently being made in the legislation is neither to allow for that nor offer a measure of flexibility to those people with responsibility for managing, helping and dealing with these young people; namely, the youth offending team officer or other person. This is an important safeguard. Those working with these young people are the ones who know them well and are therefore in the best position to advise whether they should be given, if you like, another chance.

The noble Lord, Lord Kingsland, has already given us figures to show how extremely successful these orders can be, and another positive aspect is that youth offending panels, to whom young offenders are referred back, also engage young people's communities in what is going wrong. That creates an important dialogue which in turn makes possible the kind of restorative alternatives that have been suggested. For all these reasons, it is important that the Government should look at this seriously once again.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

The wording of the amendment, which I entirely support, has an important limitation to it which is important from the Government's point of view. You can go back to the youth offender panel only if a member of the youth offending team approves it, thus limiting the provision to those youngsters whom the youth offending team thinks should continue to be worked with. In those circumstances, in this limited form, the proposal is admirable. I hope that the Government will take it on board.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I, too, support the amendment for all the reasons already outlined, and I agree particularly with the noble Lord, Lord Judd, in his view that much more still needs to be done to prevent children and young people being taken into custody. We must never forget that they are at a very vulnerable stage and can be turned back from their anti-social behaviour if we pick the right moment. I hope that we can get the Minister to take this on board because it is provides an alternative way of dealing with young offenders. The quoted 44 per cent success rate with this approach is much higher than any of the alternatives, and that adds to the reasons why I wish to support the amendment.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I am grateful to noble Lords who have spoken and, in particular, to the noble Lord, Lord Kingsland, for moving his amendment.

Amendment No. 101 seeks to allow a court to make a second referral order on the recommendation, as the noble and learned Baroness reminded us, of a member of the youth offending team, a probation worker or a social worker. The legislation currently allows only one referral order to be made. We do not believe that we should allow a second referral order if one has been made previously and I shall try to explain why.

We have introduced a range of out-of-court disposals for juveniles that will be engaged long before they reach the point of a referral. Indeed, Clause 98 introduces the youth conditional caution which will provide an additional out-of-court option to the existing reprimand and final warning. It is also possible for a young offender to receive either an absolute discharge or a conditional discharge before the court stage, where a referral order comes into play. In other words, before a young offender gets to the point of receiving a referral order, he or she may have committed several offences of a fairly serious nature. We do not have a problem with that if the out-of-court disposals and discharges have been used appropriately.

It is our aim and the aim of everyone who has spoken in the debate to keep children and young people out of the formal court process. But when they enter the formal court process, it is essential that we keep the confidence of the public, even with young people, in rigorous and effective community penalties. The referral order is available for a range of offences, some of which are serious as they include imprisonable or custody offences. Allowing a second referral order may result in legitimate criticism that repeat offenders are not being dealt with effectively.

I shall remind the Committee of the circumstances in which an offender receives a referral order. At present an offender must generally be given a referral order if, first, the offence is imprisonable; secondly, he pleads guilty to an offence and any connected offences; thirdly, the offender has not previously been convicted of an offence; and, fourthly, the offender has never been bound over to keep the peace. An offender may be given a referral order in similar circumstances where the offence is not imprisonable or more than one offence has been committed, whether imprisonable or not, and the offender pleads guilty to at least one.

We have made a change in the Bill that will allow a referral order to be made on a second conviction if a referral order has not been made before, but we do not believe that we should extend it further. It is a part of the challenge to achieve the balance required in the youth justice system between providing sentences that meet the needs of young people who offend and, at the same time, providing reassurance to victims and the public that the offender will be dealt with effectively. We believe a second referral order is a step too far.

My noble friend Lord Judd, in a typically effective way—as he always does in these kinds of arguments to the Committee or to the full House—talked about a breach leading to a referral order being necessarily revoked. It is true that a breach of a referral order may lead to it being revoked, and thus to resentencing, but, as I understand it, a breach of a referral order does not necessarily lead to the order being revoked. What we are talking about here in most cases is another offence committed by the offender. So we are not talking about breach; we are talking about another offence committed by the offender.

The referral order involves a restorative justice approach. We believe that it is right that all first time guilty pleas for young people who are before the court—they may have committed a number of offences and not been dealt with by the courts—should have the opportunity to go through this process. Our concern is that if the young person has offended again, more intervention is needed. Therefore, we think that the course that the courts will take in those cases is more often than not the youth rehabilitation order that the Bill introduces. It is not a question of the referral order going because another offence has been committed and therefore inevitably, like night follows day, the young offender must go into custody. We believe that the commission of the other offence—which presumably will not be trivial because if it was, it would probably not come to court anyway—means that that offender needs more intervention than the referral order gives him or her. That is the purpose of the youth rehabilitation order that we have debated.

Photo of Lord Judd Lord Judd Labour 5:00 pm, 27th February 2008

The Minister is trying to take the observations very seriously, but is he really saying that teams that we regard as good enough to take the heavy responsibility of handling a referral order should have their view on how a particular individual should be treated in view of what has happened disregarded?

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I am not saying that. I am saying that what to do with an offender is a matter for the courts. If someone on a referral order—which is not a soft option, but a fairly tough sentence for a person who has been brought to the court for the first time and has pleaded guilty—has offended again, the court is bound to consider some course of action. We hope it will not be custody. It might be if it is a very serious offence that deserves custody, but if it is not it might be a youth rehabilitation order, which involves the people whom my noble friend praises.

Amendment No. 102 adds a new clause which removes the compulsory conditions for a referral order. The referral order is subject to compulsory conditions to ensure that it is used as the primary, first-time sentence for young offenders who plead guilty. The referral order is available for some imprisonable offences, but we believe that all young offenders should have the opportunity to undergo referral. I hope that is supported in the Committee. Under a referral order, the young offender has to agree a contract with the youth offender panel. It will include a programme of action that may include reparations to his victim or to the wider community in rehabilitation. It may involve paying compensation, attending mediation sessions with the victim, carrying out unpaid work or participating in programmes to address alcohol or other substance abuse. It provides a restorative justice-based intervention for young offenders who are in court, primarily for the first time. We are keen to maintain this use as restorative justice can be effective for young offenders who have not previously thought about the impact that their offending behaviour has on others.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Can the Minister help us in this situation? If a member of a youth offending team were to go to court and say, "I'm sorry, we weren't able to carry out the programme. We had a contract with the offender, and we had every hope that he would complete it, but we had no unpaid work that he was able to do, we didn't have the resources for the programme for alcohol abuse and various things have gone wrong. We think he might benefit from a second referral order", surely it should be open to the court, as a matter of discretion, to say, "If that is the view of the youth offending team, we accept it. In the circumstances you have outlined to us, we will allow a further referral order". Would that not be fair?

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I would expect the youth offending team to have gone back to the court earlier than that to say, "We haven't got the resources to carry out the referral order of the court". Immediate action could then be taken by the court with the young person involved. I am talking about a young offender who has committed a further serious offence—serious enough to bring him back before the courts.

Our concern is that if one allows more than one referral order, this sentence will become compromised very quickly. Instead of the youth rehabilitation order being used as widely as we want it to be, referral orders will just be used once, twice, three or four times. Young offenders who commit further offences may need greater intervention than the referral order can possibly allow. It is a vital tool for offenders who appear before the court for the first time, whether it is their first offence or, as is more likely, a number of offences down the road. That is its value and its use, which we do not want to compromise.

Of course the referral order has a low reconviction rate, which is excellent and why we are in favour of it. However, the practical effect of allowing a second order to be awarded just like that would be counterproductive.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

Perhaps I may refer to two of the Minister's points. First, why does what the public think matter so much on this occasion when it has not been raised on other occasions in relation to similar situations? Secondly, the Minister said that the referral order might be compromised if there were two, three or four of them. One could perfectly well deal with that by saying, "On one further occasion only", so that one could not go beyond a second referral to a third or fourth.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

The noble and learned Baroness, who has great experience which the Committee knows well, asked why it matters what the public think. It is important that there should be public confidence in the sentencing process, whether it concerns adults—no one, I think, would deny that it matters as far as adults are concerned—or when young people are involved, too. If the public lack confidence in the proposals that are being set out—and nearly all of them are intended to keep young people out of custody—and think that, somehow, there will never be any eventualities when young people go to custody, however much their offences might deserve it, then we are all in trouble, and the sentencing system that may then develop is something that no one, particularly anyone who has spoken in this Committee, would want to see.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I had no intention of being understood as saying that the public's perception did not matter. I wondered why it was being raised on this occasion, when it had not been raised on others, particularly in respect of my suggestion of only one further referral. I cannot believe that that would lead the public to lose confidence in the criminal justice system for youth offenders.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

In support of the noble and learned Baroness, I say that public confidence is important—everybody accepts that. However, if the public's confidence can be won and maintained only on the basis of quite unreasonable rigidity, one surely has to temper that by the consideration of being overrigid. All that the amendment seeks to bring about is reasonable and proper discretion. The objection of the Government is based on the fundamental belief that anything other than a first referral will be utterly unjustified and represent a flabbiness of the whole system. There is no proof or justification for that.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

This is a good moment for me to respond to the Minister. I share entirely the noble Lord's observations. The more I listen to the Minister, the more I think that perhaps one reason why the Government are unhappy about this proposal is that they feel that it threatens their own flagship provision in the Bill—the youth rehabilitation order. Their view is that rather than have a second referral order, the next step should be to go to the youth rehabilitation order. However, we have strong statistical evidence that referral orders work, relatively speaking, extremely well. All that we are asking the Government to do is to build on success.

As the noble and learned Baroness, Lady Butler-Sloss, said, the amendment contains very powerful restrictions to ensure that the provision would always be used responsibly. It would be used only on the basis of a recommendation from a member of the youth offending team, an officer of a local probation team or a social worker from a local authority. Those are responsible people and they would not make that recommendation unless they thought that there was at least a reasonable chance of a second referral order working. As the noble Baroness, Lady Linklater of Butterstone, said, not only does it often take a lot of time and painstaking planning to put a referral order package together, but they may be dealing with people who have a chaotic lifestyle. The relationship between the individual and the team is one of great sensitivity and requires enormous input by dedicated parties, so they will not recommend a second order if they think that it will not work.

A number of noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, took the Minister up on his concern that it might seem that repeat offenders were not being dealt with effectively if there was an option of a second referral order. To that there are at least two responses. First, considerations about youth justice matters are not the same as considerations about adult offenders. That is a matter of this country having entered into a range of international obligations by which we abide. Secondly, the only reason for providing the option of the second order is because in some circumstances it would be the most effective way in which to deal with repeat offenders, rather than all the other options, including the YROs.

The Opposition feel that this is a really important issue for the Government and we are dismayed that they feel unable to give any ground on the matter. I do not think that the amendment needs any refining. If I may say so, I think that it has the balance exactly right, and we shall certainly return to it on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102 not moved.]

Clause 35 agreed to.

Clauses 36 to 39 agreed to.

Schedule 5 [Youth default orders: modification of provisions applying to youth rehabilitation orders]:

Photo of Lord Bach Lord Bach Government Whip, Government Whip

moved Amendment No. 102A:

Schedule 5, Transpose Schedule 5 to after Schedule 7

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I hope this government amendment will be less controversial than the last one I spoke to. The amendment simply ensures that the schedules in volume II appear in the right order. I am sure that it has been spotted by many noble Lords on reading volume II that Schedule 5, which is introduced by Clause 39, should appear after Schedule 7, which is introduced by Clause 23. Consequential numbering will also be needed. This will be done by printing should your Lordships agree to the amendment. This is not an otiose amendment; there was no other way to put this right other than by tabling an amendment. I beg to move.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

I offer my congratulations to the noble Lord on his non-otiose amendment putting the various schedules to rights in terms of transposing them. Once again I have to say that the Ministry of Justice seems to be in a state of total and utter chaos on the Bill. The noble Lord, Lord Hunt, shakes his head. We have already, as I think I pointed out at Second Reading, seen the Government introducing vast numbers of clauses in another place, some as late as Report, and removing some of those clauses when they brought the Bill to this House. They had to have the poor Minister make a statement to the House at the beginning of today's proceedings to announce that he is removing Clauses 42 and 43 and possibly others, and no doubt more will be coming later. Perhaps the noble Lord, Lord Bach, will be able to say something about that when he comes to respond. Now we have the correction of transposing one schedule with another.

I hope that in future years the Government, when they bring forward yet another criminal justice Bill—if they do—might have learnt their lesson. They might have listened to the noble Lord, Lord Elystan-Morgan, and the advice he offered yesterday, given to him by a former Member of this House and a Permanent Secretary of the Home Office. It is not always wise to bring in as much criminal justice legislation as the Home Office used to, and the Ministry of Justice seems to do now. If the Ministry of Justice could act just a little slower over the years and offer a bit more consideration to all its legislation, it would make the job a lot easier for this House and the another place, and it would make life a lot easier for all the practitioners throughout the legal world.

I do not want to go on too long. I wonder whether the noble Lord has any further comments to make about what the Ministry of Justice would or would not like to do with future criminal justice Bills.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

What a delight it is to hear the noble Lord, Lord Henley, speaking from the Front Bench in Committee. What a shame we are not hearing more from him. That is really my only comment. The noble Lord should be a little careful when he talks about criminal justice Acts. If I remember right—I know it is some time ago now—the Government of whom he was a leading member all those years ago passed a large number of criminal justice Acts in their time, and the remarks that the noble Lord, Lord Elystan-Morgan, made yesterday were meant to refer not just to the Government of whom I am pleased to be a member but to the one of whom the noble Lord, Lord Henley, was happy to be a member.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

I was only a very minor cog in that machine. I accept the noble Lord's remarks and what he said about the remarks made yesterday by the noble Lord, Lord Elystan-Morgan; namely, that they referred to both Governments. But does the noble Lord not agree that this Bill has reached a new level of farce that has not been achieved by the Home Office, as it used to be, or the Ministry of Justice for many years? It is way beyond anything that has ever happened before and now to have this wonderful government amendment changing one schedule for another really does take the biscuit. The noble Lord need not blush. He can get up and just say "Mea culpa" or "Department mea culpa", but this is not very good, is it?

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I do not agree that this is the worst Bill, or whatever the phrase was that the noble Lord used.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I have known many more of this Government's Bills which were just as bad as this one.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I criticised the former Conservative Government's criminal justice Acts and the noble Lord, Lord Henley, criticised this Government's criminal justice Acts. However, I am afraid that we cannot criticise the criminal justice Acts introduced by the Liberal Democrats as there have been none for many years.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Clauses 40 and 41 agreed to.

Photo of Lord Fowler Lord Fowler Conservative

moved Amendment No. 103:

After Clause 41, insert the following new Clause—

"Meaning of "disability" in sentences for aggravation related to disability

In section 146 of the Criminal Justice Act 2003 (c. 44) (increase in sentences for aggravation related to disability or sexual orientation) for subsection (5) substitute—

"(5) In this section the meaning of "disability" is as defined in the Disability Discrimination Act 1995 and the Disability Discrimination Act 2005.""

Photo of Lord Fowler Lord Fowler Conservative

In the absence of the noble Baroness, Lady Gould, I move Amendment No. 103 which is as self-evident as Amendment No. 102A, and I know will be accepted by the Government in that respect.

The amendment introduces a new clause and is supported by the National AIDS Trust and the Terrence Higgins Trust, of which I am a trustee. In recent years the Government have legislated to deter hate crime. Section 146 of the Criminal Justice Act 2003 requires courts to treat as an aggravating factor in sentencing the fact that the crime was motivated by, or the perpetrator demonstrated, hostility based on the disability of the victim. This was an important legislative provision because it clearly signalled the unacceptability of disability-related and sexual orientation-related hate crime in our society and established the importance of the issue for the police, the Crown Prosecution Service and the courts. But the problem is that the Criminal Justice Act 2003 was enacted before the changes in disability discrimination law in the Disability Discrimination Act 2005 were introduced. The definition of "disability" in the Criminal Justice Act 2003 is that of "physical or mental impairment". The Disability Discrimination Act 2005 extended the definition of "disability" to include people with HIV effectively from the moment of diagnosis, irrespective of whether the illness had progressed to the point where physical impairment had occurred.

There were important reasons to extend disability discrimination law in this way. On the whole the discrimination experienced by people living with HIV has little to do with the degree or visibility of impairment but simply with the fact that there has been infection, and with that has come related social stigma. This is as true of hate crime as it is of other less extreme forms of discrimination. The Criminal Justice Act does not therefore at present provide for HIV-related hostility to be an aggravating factor in sentencing in the majority of cases. That is because—and this is a good thing—a high percentage of people living with HIV today respond well to anti-retroviral treatment and do not experience physical or mental impairment.

My case is therefore that this is a loophole in the law which simply needs tidying up. When the Disability Discrimination Act 2005 was introduced, the need to amend the Criminal Justice Act 2003 was overlooked. I make this point in what could otherwise be a rather dry and legalistic argument: it is not just a technical or minor matter. HIV-related hate crime is a real social evil in this country and the Government would be taking forward their commitment to tackling stigma and discrimination of this kind in supporting such an amendment.

The National AIDS Trust has provided me with two cases. The first is that of a 36 year-old man living in the Midlands on a housing estate. He had been diagnosed HIV positive for four years. After falling out with his long-term partner, his status and home address were exposed when a card appeared in a local shop window warning parents that he was "an AIDS carrier" and that they should keep their children away from him. A few days later, he came home from work to find two people in his flat. They beat him with chair legs, putting him in hospital for six days.

The second case is of a woman who lived in London. She was originally from the Democratic Republic of Congo and attended a group at a local centre for women from that country, particularly focused on childcare. As it happens, she made the mistake of making a comment about her status. The group consequently became hostile to her and one of the women there grabbed her youngest child and physically threw her out of the room, telling everyone there that she would give them AIDS. She was later threatened and, the night before she was moved to another area, two people pushed her door in and threw pieces of wood and dirt at her in front of her children, saying that she was dirty and should go back home to Africa to die of AIDS.

My point is that this is in no sense a theoretical issue, which is why the noble Baroness, Lady Gould of Potternewton, has tabled this amendment. People with HIV need to know that hate crime against them will be taken seriously, and that it will be recorded, monitored, investigated and prosecuted. A legal framework which ignores HIV-related hate crime seems unlikely to motivate an effective response from law enforcement authorities. It is worth noting that the current guidance on hate crime published by the Association of Chief Police Officers in 2005 makes no mention of HIV-related hate crime in its 104 pages.

I hope that the Government will recognise that there is a loophole here. I urge them to update this aspect of the law to the benefit of many people in this country. I beg to move.

Photo of Lord Bach Lord Bach Government Whip, Government Whip 5:30 pm, 27th February 2008

I thank the noble Lord, Lord Fowler, on behalf of the Committee for moving the amendment in the name of my noble friend Lady Gould. He has done so briefly, if I may say so, and will attract a lot of sympathy. If he was implying that the Criminal Justice Act 2003 definition was meant to follow the Disability Discrimination Act 1995—that seemed to be his implication, and if it was not, I shall not go on—the Criminal Justice Act 2003 always had its own definition that did not include all of the definition in the 1995 Act.

The amendment seeks to amend the definition of "disability" in Section 146 of the Criminal Justice Act 2003, to bring it into line with the definition in the Disability Discrimination Act 1995 and its successor Act in 2005. Section 146 of the Criminal Justice Act makes motivation by hostility against disabled persons an aggravating factor in sentencing. The aim of the amendment is to ensure that crimes motivated by the victim's HIV status are covered by Section 146. The 2003 Act currently defines disability as,

"any physical or mental impairment", whereas the two disability discrimination Acts specify that disability includes those with cancer, multiple sclerosis and HIV-positive status.

I take the point that if we retain the current definition for the purposes of the 2003 Act, it will not necessarily include those suffering from these conditions, which do not always necessarily significantly impair the sufferers' physical or mental functioning. Of course we are sympathetic to the plight of those who are or may be victimised on account of their HIV status, and it is fully understood why this amendment has been brought before the Committee. However, we do not believe that the amendment is necessary and we would go a bit further and say that it could have some undesirable consequences. I shall do my best to explain why.

First, it is not axiomatic that the definitions of disability in each Act should be brought into line. The Acts are for different purposes. The Disability Discrimination Acts relate to economic discrimination and civil authority duties that are civil law matters. The Criminal Justice Act obviously deals with crime. Officials from my department have been in touch with officials from the Department for Work and Pensions, which has responsibility for the disability discrimination Acts. They confirm that the definition of disability in those Acts was developed for the particular purposes of those Acts and took into account the sort of employment issues covered. But the position has always been that the disability discrimination Acts' definition of disability was devised for the purposes of civil rights and that the definition is not necessarily appropriate for use in other contexts.

The definition of disability as drafted for the 2003 Act was designed to address the mischief of hostility and consequent crime directed towards those whose disability may make them immediate targets. It was not intended to cover the broader spectrum of those who do not suffer an impairment but may face hostility and crime for other reasons. That spectrum could be much broader than is suggested in the amendment, and we are concerned that it may be counterproductive to attempt specifically to list all such instances. We also believe that those with HIV-positive status, who would not specifically be caught by Section 146, are protected by other sections of the Criminal Justice Act—as are other minority groups which are not specifically mentioned in Sections 145 and 146.

Section 143 of the Criminal Justice Act 2003 obliges the court to sentence based on seriousness, which is assessed on the basis of culpability and harm. Section 172 obliges the court, when sentencing, to have regard to guidelines set by the Sentencing Guidelines Council. Since its establishment in 2004, we have been developing the role of the council in ensuring appropriate sentencing through aggravating factors, guidelines and so on, rather than resorting to primary legislation in all cases to deal with these issues. So the situation has changed since the statutory aggravating factor of disability-related hostility was introduced.

In December 2004, the council published a guideline on assessing seriousness, which lists aggravating factors that indicate greater seriousness. Those include

"hostility toward a minority group", and the particular vulnerability of the victim, which may be relevant in hate crime cases. It should also be noted that the courts must consider harm in assessing seriousness; particular harm can be caused by hate crime as it is divisive and may cause wider fear and distress than untargeted crime and more distress to the individual victim. So I argue that the first of the two moving cases to which the noble Lord referred would undoubtedly be covered by other sections of the Criminal Justice Act 2003, given the intention and state of mind of the perpetrators of those offences.

Our belief is that, given the statutory obligations on the courts to look at these matters in sentencing, there is protection against forms of hate crime that are not specifically mentioned in Sections 145 and 146 of the 2003 Act. If that is right, we believe that it would be counterproductive to try to amend the Criminal Justice Act to include all forms of targeted crime that could be deemed hate crime; it could lead to groups being excluded from protection if they were not specifically mentioned in statute.

Where any statute sets out a very specific list of cases covered, that can be problematic in that it can fail to keep pace with the changes in society and can inadvertently act to exclude almost equally good cases. As a general principle, less specific legislation may work better to protect the public. Our fear is that adding very specific cases to the coverage of Section 146 may lead to other cases that could currently rely on the more general protection of the Sentencing Guidelines Council's aggravated factors being forgotten or excluded. It would be unfortunate if we went down that road and inadvertently—completely by accident, as it were—made matters worse for other sections of the community which may suffer as the victims of hate crime.

Of course, it is vital that we remain vigilant about any issue that may result in unfair discrimination or in the law impacting unevenly, but in this particular case, while we agree fully that people should not be discriminated against on HIV-related grounds, I believe that the existing law provides appropriate protection and that it would not be desirable to change it as suggested.

Finally, although we believe that sentencing powers are adequate, we accept that there may sometimes be a question of the courts' awareness of the issues—those who support this amendment may have that in mind. I understand that the Equal Treatment Advisory Committee, a committee of the Judicial Studies Board, recently received a general presentation by the Race for Justice advisory group on hate crime and is now considering what training issues may arise in that area. Although I know that that does not answer the amendment, we would be happy to raise the points it makes with that committee if the noble Lord thinks it appropriate.

Photo of Lord Fowler Lord Fowler Conservative

I certainly thank the Minister for giving such a full reply; certainly, I would welcome anything that can be done in this area, and I am sure that the noble Baroness, Lady Gould, would say precisely the same. The trouble with his argument is that there is a definition of disability in the Criminal Justice Act 2003 of physical or mental impairment; it is true that we would be adding to it, but it is already there and the courts have to observe it.

There is one point that perhaps the Minister does not entirely take on board. I suspect that discrimination or hate crimes against people with HIV are some of the most serious, if not the most serious, examples of what takes place. I gave two cases but I am sure that if I spoke to people at the National AIDS Trust, the Terrence Higgins Trust or many of the voluntary organisations around this country, they would give very many examples of discrimination and of what amounts to more than discrimination—violence—against people with HIV. I know from experience that that is the case. I think it is fair for those of us who take this view to say that society should give the clearest possible sign that we deplore these attacks and that we will do everything in our power to prevent them and fight against them.

As I said, I am not entirely convinced by the Minister's reply. I should like to study it in detail with the noble Baroness, Lady Gould, and we may well come back on Report. However, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Amendment of test for allowing appeals: England and Wales]:

On Question, Whether Clause 42 shall stand part of the Bill?

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I wish to oppose the Question whether Clause 42 shall stand part of the Bill.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

There is nothing more to be said but I thought that Clause 43 would also have to be called.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I am relieved on the one hand and saddened on the other at the Government's decision in this regard. I think that to recant was extremely proper. On the other hand, I have carefully researched what I regarded as the basis of what might have been many marvellous discussions in relation to these issues, starting with jurisprudence and ending with metaphysics. Be that as it may, I have no doubt that the Minister will now proceed to give the Committee his solemn undertaking that between now and the next general election there will be no withdrawing of the recantation in this regard.

Clause 42 negatived.

Clause 43 [Amendment of test for allowing appeals: Northern Ireland]:

On Question, Whether Clause 43 shall stand part of the Bill?

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I wish to oppose the Question whether Clause 43 shall stand part of the Bill.

Clause 43 negatived.

Clause 44 [Power of Court of Appeal to disregard developments in the law: England and Wales]:

On Question, Whether Clause 44 shall stand part of the Bill?

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

This clause is a technical and, as I hope to show, unnecessary amendment to the powers of the Court of Appeal. The Explanatory Notes, at page 54, show that the clause is intended to deal with a narrow range of cases which have been referred to the Court of Appeal by the Criminal Cases Review Commission on the ground that there has been a change in the law since a conviction. The existing practice of the Court of Appeal in these cases is clear and unchallenged.

When an appellant seeks leave to appeal a conviction out of time, as will almost always be the case in change-of-law cases, the court will not extend the time on the ground of change of law. Therefore, in such cases the conviction is inevitably upheld. That is the current practice and it does not need to be confirmed by statute.

The difficulty, such as it is, has arisen where an appeal is referred to the Court of Appeal by the Criminal Cases Review Commission. In such cases, the appellant does not need leave to appeal and, therefore, does not have to apply for an extension of time so the filter, operated successfully by the Court of Appeal in other change-of-law cases, is bypassed. Such cases would then have to be dealt with by the Court of Appeal on the basis of the current law at the time of hearing the appeal. That difficulty looked as though it might become acute as a result of a decision of the Divisional Court in the case of R v CCRCCriminal Appeal Reports, 2007—in which it was held that the CCRC was not obliged to have regard to the practice of the Court of Appeal, such as I have described, in refusing to extend time in change-of-law cases. That case, happily, has been effectively overruled by the Court of Appeal in a very recent decision in Cottrell and Fletcher. The effect of that recent and authoritative decision is or should be that the CCRC will, in future, have regard to the existing practice of the Court of Appeal in change-of-law cases and will not refer such cases where the Court of Appeal would not have extended the time.

For those reasons, which I hope I have explained, Clause 44 will not be necessary. The problem has been solved, as such problems should be solved, by action on the part of the courts themselves and not by statutory intervention. We had some experience yesterday of what can go wrong when Parliament intervenes with the ordinary processes of the courts. It often produces very unexpected results.

The difficulty with Clause 44 as it stands—this is an important point—is that it goes far wider than the problem that it seeks to solve. It treads on very difficult ground—I would almost say holy ground—and should not be put on the statute book without prior consideration by the Law Commission. I urge the Government, having withdrawn Clauses 42 and 43, to consider withdrawing Clause 44 also, if only to save time. It is no longer an urgent problem; indeed it is not really a problem at all.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I am one of the signatories to opposing the Question that Clause 44 stand part of the Bill. I respectfully adopt the reasons given by the noble and learned Lord, Lord Lloyd of Berwick, as my reasons, too. I have one additional point to make on the substance of the government provision. That is in relation to Clause 45(2), which says, after the usual introduction:

"In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction".

Like the noble and learned Lord, Lord Lloyd of Berwick, I hope that this clause will disappear from the Bill. But, in any event, it is vital that Clause 44(2) be amended, because the discretion here given to the Court of Appeal is far too wide; indeed, it is totally unconstrained. It is not difficult to imagine situations where opting for the law at the time of the conviction or the law at the time of the consideration by the court could mean quite substantial differences between the legal situations.

Inspired, I think, by the suggestion of Professor Graham Zellick, I propose that that subsection ought to read: "In determining ... whether the verdict is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case"—here comes the addition—"and is satisfied that it would not give rise to a substantial injustice, disregard any development in the law since the date of the verdict". That would ensure that a decision by the Court of Appeal could not manifestly undermine the position of the defendant.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

The mischief of the clause as drafted is that it gives no guidance as to how the discretion of the court is to be exercised, so it causes problems to the commission. The commission has said, no doubt to the Government, that it would not know when it would be appropriate to bring forward a case. Speaking as a practitioner, I believe that trying to advise a client as to the circumstances in which the court may,

"think it appropriate in all the circumstances of the case", to do a particular thing would be impossible. The words "substantial injustice" at least give some guidance as to the advice that would be given on the action that might be taken by the commission. As the noble and learned Lord, Lord Lloyd, said, that issue has now been resolved by the Court of Appeal and this clause is completely unnecessary.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

There is a further blemish in the clause, as there was in Clauses 42 and 43, which is the seeming arrogance—I do not say that in any pejorative way to the Minister—of Parliament placing itself in the position of telling the Court of Appeal what is unsafe and unjust. I cannot imagine anything that is more the apotheosis of unsafe than for Parliament to attempt to do that.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

For the reasons that have already been given, the clause should not stand part of the Bill.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

As I was about to say—a little prematurely, for which I apologise—I do not propose to withdraw this clause. Perhaps I can put it in context. Clause 44 amends Section 2 of the Criminal Appeal Act 1968 to give the Court of Appeal discretion to disregard developments in the law since the date of conviction. In their response to the consultation on the Bill, members of the senior judiciary commented on the implications of the existing law, which requires the court to apply the interpretation of the common law applicable at the time of the appeal rather than the interpretation that was applicable at the time of the conviction.

The point was also raised in a recent Court of Appeal judgment. Where the person convicted applies for leave to appeal out of time, and his appeal rests solely on a development in the common law since his conviction, the court's usual practice is to refuse leave. It is in some cases referred by the Criminal Cases Review Commission that the real problem arises because there is no requirement for leave in such cases. The commission considers that it is obliged to refer a case to the Court of Appeal where, if the case were referred, there would be a real possibility that the court would quash the conviction on the strength of a subsequent change of law. That is to a degree a self-fulfilling prophecy, as once such a case is referred the court may find itself obliged to quash the conviction, applying as it must do the common law as it stands at the time of the appeal. This can happen in cases where the appellant was properly convicted under the law as it was when he was tried, sometimes a long time ago—30 years in a recent instance. The Government agree—and the Criminal Cases Review Commission does not disagree—that this is an unsatisfactory state of affairs. Our preferred solution is to give the Court of Appeal discretion to disregard developments in the law since the date of conviction.

Let me respond to the noble and learned Lord, Lord Lloyd, and the noble Lords, Lord Kingsland and Lord Thomas, on whether the case of Cottrell and Fletcher suggests that Clause 44 is unnecessary. As one understands Cottrell and Fletcher, the observations of Sir Igor Judge about the future practice of the CCRC were obiter and there can be no guarantee that the CCRC will consider itself to be bound by them. Sir Igor Judge said in his judgment that the issue merited the attention of Parliament. We agree and, therefore, I commend Clauses 44 and 45.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Is not the effect of this that the Court of Appeal may feel obliged to allow an appeal under current law but will then consider that it has discretion to go back to consider what the law was like 30 years ago? Its members may dig back into the realms of their personal history and remember how the law stood when they were junior counsel. This is calling on the court to do an almost impossible task: to look back and to try to judge a case by the law of the time when the case was determined. Not only that, but the discretionary element—the fact that the court does not have to do that but may if it thinks it the right thing to do—breeds complete uncertainty into the system. How does the Minister deal with that?

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Advocate General for Scotland, Law Officers' Department, The Advocate-General for Scotland

True it is that there is wide discretion contained in the clause, but it is precisely because of the wide range of possible outcomes that one wants to have as wide a discretion as that. I respectfully disagree with the notion that this will somehow import everlasting uncertainty into the law. Inevitably, the Court of Appeal in interpreting Clause 44, if it becomes law, will set out guidance as to how the discretion is deployed in those wide-ranging possible circumstances.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I find it quite extraordinary that the CCRC should not have regard to the most recent decision of the Court of Appeal on this subject; that decision is absolutely clear. Furthermore, the CCRC always used to have regard to the practice of the Court of Appeal in change-of-law cases and always declined to refer to such cases until the erroneous decision to which I referred. That decision is no longer good law. All that is needed is for the Government to give the CCRC time to consider the matter and I am sure that it will come in line with its previous practice and the current practice of the Court of Appeal. On that basis, I will not press the matter to a vote at the moment, but I will certainly come back if the clause is not withdrawn on Report.

Clause 44 agreed to.

Clauses 45 to 49 agreed to.

Schedule 8 agreed to.

Clause 98 [Alternative to prosecution for offenders under 18]:

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

moved Amendment No. 103A:

Clause 98, page 68, line 39, leave out "16 and 17" and insert "under 18 years"

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

I shall speak also to Amendments Nos. 110 and 113. Amendment No. 103A would remove the restriction that the youth conditional caution would be available only for young people between 16 and 17 years of age by extending it to all those below the age of 18. The Government propose that youth conditional cautions should be available only for young people between 16 and 17 years old, who would accordingly no longer be subject to the current limit of two pre-court disposals prior to mandatory charge under the reprimand and warning scheme.

Excluding 10 to 15 year-olds from the provisions would require the prosecution of younger children in circumstances that would result in a conditional caution for 16 and 17 year-olds. This would cause particular problems of parity in the case of co-defendants who might have had similar pre-court histories but where one was aged 15 and the other 16. In such cases, the current provisions might result in the younger child being prosecuted and therefore obtaining a criminal record while the older co-defendant would be eligible for a conditional caution.

The current proposals are counterproductive. The available evidence suggests that the risk of a child becoming a persistent offender is related to the age at which he or she receives a first court conviction. Given that the purpose of the youth conditional caution is in part to counteract the recent rises in the numbers of children going to court, the rate of increase since 2002 in those coming to the attention of the youth justice system has been higher for children below the age of 15 than for those above that age.

Our amendments would ensure that the youth conditional caution would be available to all those over the age of 10, and would require an appropriate adult to be present when the effect of a youth conditional caution, and the implications of non-compliance, are explained to a child under 17. The amendments have the support of the Standing Committee for Youth Justice, which acknowledges that additional safeguards may be required for younger children but considers that these could be adequately accommodated in the proposed code of practice.

I remind the Committee that the Minister in the other place said on Report:

"I have not ruled out considering extending conditional cautions to 10 to 15-year-olds. I want to look at the matter in more detail so I am unable to bring forward such proposals at the moment, but I hope that he will take me at my word"— he was responding to the amendment—

"when I say that we are looking at that in a serious and effective way".—[Hansard, Commons, 9/1/08; col. 423.]

I hope that the Government will indeed look at these amendments seriously and effectively.

Noble Lords who were in the Chamber some half an hour ago will have heard the very combative exchange between the noble Lords, Lord Bach and Lord Henley, who seemed to be "up-tariffing" their ability to bring forth, as representatives of respective Governments, worse and worse criminal justice legislation. The noble Lord, Lord Bach, who unfortunately is not in his place at the moment, reminded the Committee that Liberals had not had an opportunity to bring forth any criminal justice Bills in recent years. It is true that we may not have had an opportunity to bring forth Bills in recent times, but no one in the Chamber will doubt our desire to improve the legislation that really should not be in front of us in this manner. I move the amendment in that spirit today. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 6:00 pm, 27th February 2008

The noble Baroness introduces the question of machismo and "up-tariffing". I assure her that the fact that we are debating youth conditional cautions is a counter-argument to that. As she will know, this has received considerable support from many of the key stakeholders, and it is intended as an out-of-court disposal aimed at reducing the increasing number of young offenders taken to court for relatively low-level offences. It is therefore very consistent with the kind of arguments that we have had on youth justice on all four days in Committee.

We have carefully considered whether we have the age range right. As the noble Baroness has inferred from the debate in another place, there are some very important considerations to this. The Government have no objection in principle to applying the cautions to the entire 10 to 17 age range. Our preference has been for a staged approach, but for that staged approach to be through primary legislation. As she suggested, and as the Standing Committee for Youth Justice acknowledged in its remarks about the use of the code, there probably are different challenges for the people in the younger age groups than for 16 and 17 year-olds.

Some of the issues might include parent liability and responsibilities, the need for parents and carers to be present at the time of consideration and delivery, and some of the administrative procedures that might need to be involved. The Government will need to consult on some of those matters and on the appropriate level and extent of the conditions that are set out and that might take account of the younger age. We will, for instance, debate the maximum 20 hours per week when we come to another amendment. There may be different considerations for 16 and 17 year-olds than for 10 and 11 year-olds. As has been suggested, however, I have sympathy for the general principle, and I intend to bring suitable amendments on Report to deal with the issue, although we still think there needs to be a staged approach to implementation. I hope that she will consider that we have responded positively to what she proposes.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

So that I can understand the Minister correctly, I assume from what he said about a staged approach that he will look at an earlier introduction for young people, perhaps from the age of 16 to 17 and then downwards. I am pleased with his comments in response to the amendment, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 agreed to.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

moved Amendment No. 104:

After Clause 98, insert the following new Clause—

"Use of a conditional caution

In the Crime and Disorder Act 1998 (c. 37), in section 66 (effect of reprimands and warnings), omit subsection (4)."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

New Section 66F in Schedule 18, where this aspect of the sentencing powers is considered, provides a restriction on sentencing powers where a youth conditional caution has been given. It says:

"Where a person who has been given a youth conditional caution is convicted of an offence committed within two years of the giving of the caution, the court ... may not", give a conditional discharge,

"in respect of the offence unless ... there are exceptional circumstances relating to the offence or the offender".

That is the restriction that the amendment is designed to remove.

It is for the Government to make the case why such a restriction should be imposed in relation to a youth conditional caution followed by a discharge. The amendment, as proposed by the Standing Committee for Youth Justice, seeks to deal with a number of problems. There has been a substantial decline in the use of discharges from 23 per cent of all disposals for indictable offences in 1999 to 10 per cent in 2005. That is as a result of the restrictions under current legislation of no conditional discharge after a final warning has been received.

This restriction imposed by the schedule would inevitably lead the court to impose a more intrusive penalty than would be warranted by the offending that it is considering. Conditional discharge can be a very effective sanction. For example, during 2005, reoffending within 12 months of a discharge, both absolute and conditional, was lower than that associated with any other court order or court disposal except the referral order that we discussed earlier today. It was some percentage points lower than would have been predicted on the basis of the characteristics and offending of young people given that sentence. Precluding the giving of a conditional discharge after a youth caution has been given might increase the risk of reoffending. This restriction does not apply to adults: it deals only with young people. Why should young people be treated in any different way from adults? What is the policy that lies behind this provision? I beg to move.

Photo of Lord Judd Lord Judd Labour

In supporting the amendment in the sense that I hope it will receive serious consideration by my noble friend, I should like to make a point to which we alluded yesterday. We have to be wary of everything adding up to an apparent culture against the young. The question that the noble Lord, Lord Thomas of Gresford, has just put is very important. What is the rationale for treating young people differently?

Photo of Baroness Stern Baroness Stern Crossbench

I should like to add my voice to that of the noble Lord, Lord Judd, in respect of this very sensible amendment and would be grateful for the Minister's assurance that I have understood this. The situation is that the court has a range of options that it can use, depending on what the person in front of them has done and what the right outcome for what that person has done would be. In many cases, the percentages show that the courts use a conditional or an absolute discharge because their view is that what has been done is not serious enough to merit a more punitive sentence.

We read often nowadays of young people being brought to court for extremely minor offences. An example came to my attention of a child who was charged with false imprisonment for locking another child in a garden shed for 10 minutes as part of a disagreement between them about sweets, DVDs or something. I understand that the courts are seeing more and more cases of extremely minor offending, if one wants to call it that, but one might just call it behaviour. They deal with that by imposing an absolute or a conditional discharge, recognising that something happened but that there was not a great deal of damage.

As I understand it, that cannot be done for two years after a child has had a conditional caution. If that is the case, it is an absurd law. I very much hope that the noble Lord, Lord Thomas of Gresford, will push this in order to reverse the situation, if I have understood it correctly. I look forward to the Minister explaining to me that I have got it wrong.

Photo of The Earl of Onslow The Earl of Onslow Conservative

I understood the situation to be exactly how the noble Baroness, Lady Stern, described it. If you add that to the fact that some children are not even represented in court—I can conceive that it is only too easy that a child who is prosecuted for locking one of his mates in a garden shed would not probably get represented in court—the possibility of him not having a conditional discharge, or the police being given a rollicking for being so stupid as to bring the charge in the first place, which is possibly more sensible, not to allow the courts to have that flexibility is back to one's old friend "up-tariffing" again.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The very fact that we are discussing youth conditional cautions is a reflection that we wish to see as much action and activity as possible to prevent young people having to go to court and all the consequences from it. We have to recognise—

Photo of The Earl of Onslow The Earl of Onslow Conservative

I really do not understand that. A conditional discharge is given once to a child. Within two years that child comes back and a conditional discharge now cannot be given. How on earth does it follow that this will stop people coming to court?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The point about the youth conditional caution is that it is an out-of-court disposal aimed at reducing the increasing number of young offenders taken to court for relatively low-level offences, which is the point raised by the noble Baroness, Lady Stern. The amendment proposed by the noble Lord, Lord Thomas, would repeal subsection (4) of Section 66 of the Crime and Disorder Act 1998, which prevents a court imposing a conditional discharge on a young offender where he or she has received a final warning in the previous two years, unless there are exceptional circumstances. Where the court believes that there are such exceptional circumstances, it must state in open court that it is of that opinion and the reasons for believing that to be the case.

The circumstances in which this arises are that the provision reflects the fact that we are talking about a young offender who may already have received several out-of-court disposals in the form of a reprimand for a first offence, a warning for a second offence and, potentially, a second warning for a third offence, if two years have passed since the first warning was delivered. Additionally, under the provisions in the Bill they might also have received a youth conditional caution. The likelihood is that the young person to whom we are referring has appeared in court after possibly admitting guilt to three or four offences. The warnings and the youth conditional cautions may well have had interventions and conditions attached to them, yet the young person has gone on to offend again.

In those circumstances where a young offender has appeared in court for the first time, despite the failure of the interventions to which I have referred, it does not seem right for a court to be able to impose yet another relatively minor sanction on the young person unless it believes that there are exceptional circumstances which make it the right thing to do.

By having appeared in court despite previous out-of-court disposals, a young offender has surely shown that something else is likely to be needed. Our worry with the amendment is that if you allow a conditional discharge within two years of receiving a warning or a youth conditional caution, it sends the signal that, even if you are brought before a court and convicted, after going through that process you may get a relatively minor sentence. There will always be a balance between wishing to have interventions that will work and will prevent reoffending, and showing young people that we are serious, which is why we have that condition.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

What balance is achieved by discriminating in this way against young offenders? This policy does not apply, I understand, to adults. Why not?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Clearly, there will always be differences between the adult criminal justice system and the youth criminal justice system, which are reflected in the different arrangements. In relation to adults we are talking about potentially a very long period of time, whereas with children it is a much shorter period of time. The emphasis is on getting over to young people that, although there is a hierarchy and there are opportunities not to offend with the kind of warning systems and the youth caution system that we are now discussing, ultimately, when that has not worked, the courts have to take serious action.

Photo of Baroness Stern Baroness Stern Crossbench

I want to make sure that I have understood the Minister. I believe that we are talking about relatively minor offences because this concerns cautions and discharges. I am assuming that at no point in the two-year period has the offending progressed to stabbing or attacking people in the street. Is there nothing in the Minister's brief about young people's offending and the fact that most of them stop doing it at a certain age regardless of our interventions? Indeed, they are more likely to stop if we intervene as little as possible on the criminal side and as much as possible on the social reintegration side.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I do not disagree with the noble Baroness that early interventions aimed at preventing reoffending are preferable, but one has to show young people that there is a serious intent in all we seek to do. The point is to get the balance right in this, and we think that the general measures we are discussing will achieve it.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Why does the Minister think it is necessary to micromanage the way in which magistrates reach their decisions? Why can it not be left to the courts to make sensible decisions, having regard to all the circumstances of the individual offender and the nature of the offence? Why does the magistrate have to look up new Section 66F set out in Schedule 18 to the Criminal Justice and Immigration Bill and, having done all that, look to see whether there are any exceptional circumstances? Surely we have to trust magistrates, as we have done for centuries, to come to the right decision. There is no reason to suppose that they are failing in their responsibilities in this regard.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

In view of what I said yesterday, I am certainly not going to suggest that magistrates are failing in their duties; of course they are not. But equally there is always a balance to be struck between what is set out in statute in sentencing guidelines and the discretion of the magistracy. As the noble Lord has said, there is a power to give a conditional discharge in exceptional circumstances, but we also think it is right that Parliament can set a framework in which that happens. That is why the Bill is as it is.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

The Minister has said that people have to take a message from this Bill. Which youngster is ever going to pick up this Bill when it is enacted and say, "Oh, I am in danger of not getting a conditional discharge unless I can come up with some exceptional circumstances"? The person whom the offender will be looking at is the magistrate or possibly the district judge—although we probably do not get into Crown Court territory here. The magistrate is the person who will give the message to the offender about what he has done and how he should behave, not a piece of legislation.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

In Kings Heath we talk of little else than the Criminal Justice and Immigration Bill. Of course I do not expect young people to avidly read the legislation passed by Parliament, but it influences sentencers and all those involved in the Probation Service and youth offending teams, and thus over time becomes known by young people. They pass through the hierarchy of a reprimand for a first offence, a warning for a second offence, potentially a second warning for a third offence and potentially a youth conditional caution, and then they come before the court, at which point they know that it is serious. That is an important message which balances our general intent to act and intervene in ways that keep young people out of court as much as possible.

Photo of The Earl of Onslow The Earl of Onslow Conservative

We all know that when you go to court, it is serious; everyone absolutely understands that. But I want to underline what has been said by the noble Lord, Lord Thomas of Gresford. For heaven's sake, leave minor hooligans in trouble for throwing stones or generally being faintly stroppy, as let us not forget we all were in our youth—the noble and learned Lord, Lord Goldsmith, may not have been—to the magistrates, the people who can see the child in front of them. As has been said, let us not micromanage this.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

When we discuss the issues surrounding young people, the Government do not seem to recognise the fact that young people change quite fast as they mature. The noble Lord is a family man himself so he knows that very well. The young person being dealt with in one year may be a completely different person by the next. His attitude may change profoundly. Young people simply do not ask what is going to happen next in terms of the law. Indeed, the noble Baroness, Lady Linklater, pointed out earlier that many young people are in a rather chaotic state at this point in their lives, and much depends on the way they are feeling at that moment. To give a young person another chance is something that we keep talking about but that the Government seem not to want to do, which makes me think that they spend far too much time reading the tabloids and too little time studying the development of young people.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I am finding all this quite unbelievable. As my noble friend said earlier, we are not dealing with something like a stabbing, but with minor offences. As every other noble Lord has said, the magistrates already have discretion in this regard and they are the ones who have daily contact with the experts around the court and the offender. Surely we should be happy to leave the discretion to them and not impose further conditions that make it almost certain that we shall imprison more young offenders.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am not sure where we are going with this. I disagree strongly with what the noble Baroness has just said. This is not aimed at putting more young people into custody. I—

Photo of Baroness Stern Baroness Stern Crossbench

I am sorry to interrupt the noble Lord and I know that he wants to bring this to an end. Of course no one is suggesting that the Government are doing this because they want more young people to go to prison than at the moment. However, when an analysis is made of how we have reached the position where many more young people go to prison here than in comparable countries, one of the reasons is that we have a system which pushes young people into more serious areas of the law rather than the systems in many other countries which keep them as far away as possible. They do that because it gives young people the best prospect of growing up into law-abiding citizens.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I wonder whether the Minister will listen to what is becoming a consensus of the Committee so that perhaps the Government will rethink the wording here.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble and learned Baroness is always persuasive in her arguments. Of course I listen, but if I say that I will take the amendment away, the Committee would probably read too much into that. The point of developing youth conditional cautions is to keep young people out of the courts and out of custody. They would be one of a number of weapons at our disposal, along with reprimands and warnings. The balance to be struck is that, having placed an emphasis on pre-court disposals, one has to ensure that young people know that there are consequences if they do not work. That is the balance. This is not a matter of responding to the red tops because to me it is just plain common sense.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I did not say that the Government are responding to the red tops, but the noble Lord obviously thinks that that could be the motivation behind the Government's proposals.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I was responding to a comment made earlier when it was unworthily suggested that the Government are influenced by the red tops.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I may have unworthily suggested that on an earlier amendment, but not in relation to this one.

I hope the Minister will accept that there is a fair amount of experience in this Committee in all sorts of fields. Certainly if our collective experience was put together, it might possibly exceed the experience of those who are advising him that this should be taken forward. I venture to say that it would exceed the experience of those who debated this matter in another place—if they did debate it.

I hope the Minister will take the matter away and think about it before Report. There is a consensus in the House. Obviously we will come back to it and he will have to make a decision at that point. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 18 [Alternatives to prosecution for persons under 18]:

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

The amendment seeks to allow the imposition of youth conditional cautions in appropriate circumstances where the young person has a previous conviction. The adult conditional caution is available at any point in an offender's career; the Government's proposal for youth conditional cautions, however, precludes such a disposal where the young person has a previous conviction. We hold that such an approach is not compatible with equal treatment on the basis of age, nor is it obviously consistent with the requirement in the Beijing rules where,

"consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial".

The potential for co-defendants of similar age and with a previous offending history to be treated differently is instructive. An 18 year-old adult with a single previous conviction might realistically be given a conditional caution in circumstances where the criteria for a 17 year-old would require prosecution.

The anomaly also undermines the potential of the youth conditional caution to provide a flexible response to different circumstances. Research suggests that pre-court measures are, on average, considerably more effective in preventing further offending than court-imposed disposals. The current proposals would preclude a conditional caution and require prosecution for minor matters—for instance, where the child has a single previous conviction for an offence which he or she has denied so was not eligible for reprimand or a warning, and where a young person's previous convictions relate to offences committed some years previously, irrespective of the nature of those offences.

The amendment seeks to allow youth conditional cautions, subject to the discretion of the Crown Prosecution Service, at any point in the period of a child's criminal activity. It would address the anomaly that less favourable treatment would otherwise be required in the case of a child rather than an adult in a similar position, and it would also permit more flexible and effective responses to the particular circumstances of the young person's offending behaviour. I beg to move.

Photo of Lord Judd Lord Judd Labour

In encouraging my noble friend once again to take seriously the thoughts behind the amendment, it occurs to me as a lay man in these matters that—to take his own words—what is surely encouraging for our determination to keep young people wherever possible out of prison is the maximum flexibility for the use of judgment and imagination. The more stipulations and details one writes into the conditional use of the arrangements that there may be, the more it undermines this creative approach—I am not ashamed to use the word—to the rehabilitation of the youngster. I am uneasy, therefore, about what is proposed and I hope that my noble friend can reassure us.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I share this unease. I am extremely glad that on an earlier amendment the noble Lord, Lord Thomas, introduced the word "micromanagement" because what worries me about this, having spoken at length with people in the field who are involved in taking these day-to-day decisions—sometimes hour-to-hour decisions—with young people, is that they feel that legislation is circumscribing their ability to use their own initiative when the time comes. Surely this must be a very dangerous precedent. I cannot believe that it makes sense to have more and more legislation which is tying the hands of the people who have the front-line responsibility, particularly if, when taken in sum, it does not add anything to what is already on the statute book.

D

As ever Lord Rambotham has a clear opinion on the need (or not!) for more and more legislation which seems to be adding confusion instead of clarity. And legislation is not helpful unless measurable as SMART (Specific, Measurable, Achievable, Realistic and Timely)

Submitted by Dee Speers

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

In a sense, our arguments are the same as for the last group of amendments. Again we start with the question of whether this is a micromanaged approach or whether it provides an appropriate framework for the dedicated people in the field who will operate the system we enact. I suspect that we will not entirely agree. However, I think we all agree that we want sufficient discretion for the people in the field. I do not disagree with that at all.

The concept of youth conditional cautions has received a broad welcome and is seen as a useful addition to the out-of-court disposals. Overall, that responds to the point raised by the noble Lord. I accept that there are arguments about how much discretion there is within the youth conditional caution system and that is what we are now debating.

If a young person either commits a serious offence or continues to offend despite other out-of-court disposals and intervention, surely it is proper for such people to be dealt with by the court. Unless the first offence a young person commits is a serious one, the court is only likely to come to deal with the young offender where other interventions have failed to prevent him or her reoffending. As I said on the last group of amendments, a young person who comes before a court may well have received a reprimand, a warning or possibly two, and a youth conditional caution or possibly two—potentially up to five previous out-of-court disposals. Both the warnings and the youth custodial cautions may well have had interventions and conditions attached. Once they have been dealt with by a court, any further offending indicates that they are not responding to either the out-of-court disposals or the sentence imposed by the court. That is why we think it would be inappropriate to send the young offender a signal that, even when they have reached the stage of being dealt with by the court, if they offend again they will be dealt with by one of the less serious out-of-court disposals.

It is a balance: the young person has many opportunities to do the right thing, but once a case gets to court the young offender needs to understand that repeat offending will lead to more serious consequences, not less. That, essentially, is the reason we are taking this approach.

The noble Baroness raised again the question of adults, who can receive a conditional caution subsequent to a conviction yet young offenders cannot receive a youth conditional caution in the same circumstances. We discussed this in the last group of amendments. I know that there is an argument from the Standing Committee on Youth Justice that this is a breach of a young person's rights under the European Convention on Human Rights. However, as I said earlier, young people and adults have different needs and therefore it can be appropriate for them to be dealt with separately in a different system, which we have in this country.

There is also the practical issue that with adults, as I said, there will be many years between the offences committed by them. The youth justice system includes a series of out-of-court diversions—and there is no argument that we want to divert wherever we can—but there has to be a cut-off point where diversion has been tried but has not succeeded. That is why we reached the conclusion that the noble Baroness has argued against. It is not a knee-jerk reaction but a considered judgment about where the balance should rise in these circumstances.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

I heard what the Minister said, and we will reflect upon this. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 106 not moved.]

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

moved Amendment No. 107:

Schedule 18, page 243, leave out lines 36 to 39 and insert "a condition that the offender attends at a specified place at specified times, but may not include a condition that the offender pay a financial penalty"

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I am sorry, but I moved a little too quickly. If Amendment No. 106 could be called again, my colleague will speak.

Photo of Baroness Hayman Baroness Hayman Lord Speaker

I am looking at the Clerk. The amendment was not moved. Please speak to Amendment No. 107.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

We are now concerned with the conditions that can be attached to youth conditional cautions, as set out in Schedule 18 to the Bill. We have already made some criticisms of these provisions, in particular the limited age at which youth conditional cautions may be given. I remind noble Lords that a youth conditional caution is a caution with conditions attached for the purposes of,

"facilitating the rehabilitation of the offender ... ensuring that the offender makes reparation for the offence", and,

"punishing the offender".

There are a number of requirements. The offender must sign a document in which is set out the details of the offence, an admission that he has committed that offence and his consent to being given the youth conditional caution. If those conditions are breached, criminal proceedings may be instituted against him for the offence in question. He has already admitted it and has set out the details of the offence in the written statement. He will have no defence if proceedings are brought against him for the offence in question. It is therefore very important to look at the nature of the conditions that can be attached to the youth conditional caution to see whether they are reasonable and sensible in preventing his prosecution, which is what this schedule is all about.

We object first to the condition that he pays a financial penalty under new Section 66A(4)(a). New Section 66C sets out what the penalties may be. They may not exceed £100, but the youth, as a condition of the youth conditional caution, is obliged to pay that financial penalty. We all know what that means for a youth of 16 or 17. He will not have the means to pay, so he is liable to go to his parents or to someone else to ask them to pay up on his behalf. If they fail to do that, he is in court with a cast-iron prosecution case against him. We submit to your Lordships that putting a financial penalty on these youth conditional cautions is not a sensible way to proceed. It may very well, and very quickly, lead to a breach and to the appearance of the offender in court.

The second aspect in the conditions attached to these cautions with which we are concerned is the requirement that the youth should,

"attend for more than 20 hours in total, not including any attendance required by conditions attached for the purpose of facilitating the offender's rehabilitation".

He may have a condition that requires him to attend an attendance centre of some sort for 20 hours for punishment and retribution, but any attendance required for the purpose of his rehabilitation has no limit. The conditional caution might impose on him a condition that, for rehabilitation, he attends for months. That condition is again liable to be breached and to lead to criminal proceedings where his written statement and admission of the offence are the evidence before the court.

Youth conditional cautions no doubt have their place, provided that they can properly and relatively easily be complied with. There is no point in setting up an offender to fail. The financial penalty and the unrestricted time for which he may ordered to attend for rehabilitation purposes set that young person up to fail and therefore to have to appear in court. Certainly let us have alternatives to prison and to prosecutions. Let us have youth conditional cautions, but subject to conditions with which a person of 16 or 17 can reasonably comply. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 6:45 pm, 27th February 2008

Following on from what the noble Lord, Lord Thomas, said, I shall take this opportunity to voice again my general concern about the way all this legislation is going. I have said many times that one of my greatest concerns with the Government's criminal justice policy is that it has never been costed. Nobody has worked out how much it costs in men, money and machines to carry out what the Government say that they intend to do. Only yesterday, there was a classic example of this when the custody plus programme was said to be the flagship of what was proposed. We all know that that is a classic example of something that was preached as being wonderful but has never come about because the resources to make it happen have never been available.

Has the Minister done a sum and worked out whether the resources are available to deliver all the things that are required to be done—all these hours of work—with young offenders? Who is going to supervise that work? Are the resources of people, money and programmes there for them to do it? It is surely ridiculous to introduce legislation that cannot be implemented, because that must undermine trust in those who put it forward as a sensible proposal. I am sure that that is not what the Minister intends. I am absolutely with him: we want the best for our children. However, it is important not to introduce legislation that cannot be implemented, because that cannot make sense in the long term.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I say to the noble Lord, Lord Ramsbotham, that it is always important that resources in people and money are available to make sure that we can implement legislation. That is often the reason why Governments reject sensible amendments in your Lordships' House. I do not disagree with the noble Lord about the general principle. Of course, circumstances can change between Bills being developed and their being implemented. It is our intention to make youth conditional cautions work as effectively as possible because we see them as a sensible approach to preventing young people coming into court. That is why we enjoy a great deal of support on the general principle of youth conditional cautions.

The noble Lord, Lord Thomas, seemed to be trying to micromanage what would happen in court, because the provisions are in essence discretionary. I would have thought that we could rely on that good judgment to which he referred when speaking to earlier amendments and allow sentencers to exercise appropriate discretion. The noble Lord is right: there is no point in setting conditions that are set to be failed and which then lead to young people going to court and perhaps ending up in custody. Therefore, the conditions need to be appropriate and to have an element of seriousness; equally, they need to be conditions with which it is expected, after assessment, that the young person can comply. That is what we are seeking to do and we should give sufficient discretion in these matters.

I have already indicated that we are sympathetic towards the amendment of the noble Baroness, Lady Falkner, which would extend the use of youth conditional cautions to people younger than 16 or 17. We will have to look at the impact on some of the other provisions, such as issues to do with financial penalties or the number of hours. However, the discretion in the Bill would probably be acceptable for other age groups as well.

The financial punishment may be appropriate. The considerations and circumstances that will need to be taken into account will be specified in the code of practice, which will provide an excellent opportunity to reflect on some of the points made by the noble Lord, Lord Thomas, who said that we must not set conditions that are set to be failed.

Not every young person will need a programme of interventions. I accept that we have to be careful not to draw all young people into extensive interventions, which may thoroughly disrupt their lives. We want to avoid creating the perverse outcomes that the noble Lord suggested. However, sometimes a fine is appropriate; it will allow a young person to put the matter behind them and might be effective in preventing reoffending.

The noble Lord referred to the number of hours. The provision sets the maximum number of hours that a young person is required to attend a specified place at a specified time. While it is appropriate for there to be an absolute time limit, we should surely allow people at the local level, in considering the young person concerned, to have discretion up to those 20 hours. The noble Lord said that rehabilitation conditions would last much longer than any maximum hours set. Any condition in respect of rehabilitation has to be reasonable and proportionate. I am certainly happy to make sure that this point is dealt with in the code of practice. I hope that the noble Lord will think that that is a reasonable answer on this matter.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Well, not really, because the noble Lord suggests that the provision equates a magistrates' court with the "authorised person". If one looks at the mechanisms behind it, one will see that it is not the magistrates who give the youth conditional caution but an "authorised person", who is a constable or an investigating officer—I am interested to see that they could be an officer of Revenue and Customs, though why an officer of Revenue and Customs would give a youth conditional caution to someone of 16 or 17 or under I cannot imagine. Alternatively, it is a person authorised by a "relevant prosecutor" for the purposes of the section, the relevant prosecutor being the Attorney-General, the director of the Serious Fraud Office, a Secretary of State and so on. Who decides what conditions are to be imposed? Is it the Attorney-General or Revenue and Customs, or is it just a constable on the beat? If it is a constable on the beat, will they have in front of them all the matters to which the Minister referred in his response? Will he be in the same position as a magistrates' court, which is filled with trained and experienced people who have real consideration for the problems that young offenders undergo?

The authorised person is being asked to lay down conditions. If he goes to his bible, Schedule 18, what does he see? He can give a financial penalty. He might, as the Government have previously suggested, march the young person to the nearest cashpoint and say, "I want £50 from you; otherwise, you won't get a youth conditional caution". There all sorts of ways in which the power may not be employed in precisely the way that the Minister envisages. I do not accept that the discretion given to trained and experienced people in a magistrates' court is in any way similar to the powers given to a constable or an investigating officer of Revenue and Customs. This is another matter that the Government need to look at again and we shall refer to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 108 to 112 not moved.]

Schedule 18 agreed to.

Clause 99 agreed to.

Schedule 19 [Protection for spent cautions under the Rehabilitation of Offenders Act 1974]:

[Amendment No. 113 not moved.]

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

moved Amendment No. 114:

Schedule 19, page 249, line 34, leave out from "(3))" to end of line 35 and insert—

"(a) the period of three months from the date on which the conditional caution was given if the offender was aged 18 or over at the time the caution was delivered, or(b) six weeks from the date on which the caution was given if it was a youth conditional caution as defined in section 66A(2) of the Crime and Disorder Act 1998."

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

This amendment, too, was advocated by the Standing Committee for Youth Justice. It would introduce a distinction in rehabilitation periods associated with youth conditional cautions and conditional cautions for adults.

The Bill proposes a specified rehabilitation period of three months for conditional cautions unless the person is subsequently prosecuted and convicted in respect of that offence. If the latter happens, the rehabilitation period will be that associated with the sentence imposed by the court. The proposal would entail conditional cautions becoming spent after the same period, irrespective of the age of the subject.

The Rehabilitation of Offenders Act 1974 distinguishes between children and adults in the rehabilitation periods associated with many of the disposals that currently fall within its scope. Most custodial sentences are in effect halved in the case of a young person under 18 at the point of conviction. The differentiation is maintained for the youth rehabilitation order proposed in Part 1 of this Bill; in other words, the order would have a shorter rehabilitation period than the adult equivalent.

There may be good grounds for distinguishing between children and adults. An unspent conviction on a young person's record has a disproportionate effect given that their employment history will be short by virtue of their youth. It has an effect when they enter the job market, for example. The Home Office review of the Rehabilitation of Offenders Act, Breaking the Cycle, said that many young people wanting to enter the job market may have had no other experience with which to demonstrate attributes, such as reliability, that are important to employers. An unspent record may have a particularly damaging effect on someone who has had no opportunity to build up a record in the community.

We propose that youth conditional cautions should become spent more quickly than the equivalent pre-court disposals for adults. Such a distinction would reflect the belief that youth conditional caution conditions should be less onerous than those for adults and therefore completed more quickly. The thinking behind this is that, if you apply a formula to adults and change it disproportionately for younger people, it may not have the effect of making that shortened period feel significantly shorter, because naturally if you have lived less long the passing of time seems slower. So the amendment would provide for a rehabilitation period of six weeks in the case of a youth conditional caution, which would be half that which would apply to adults. I beg to move.

Photo of Lord Bach Lord Bach Government Whip, Government Whip 7:00 pm, 27th February 2008

I thank the noble Baroness for her amendment. Most of us in the Committee understand about the passing of time. On whether young people do to the same extent, I share the noble Baroness's doubts.

More seriously, this is a serious amendment, which we want to debate seriously. We appreciate that quite a lot of sentences on young offenders are spent in half the time that they would be for an adult but, as the noble Baroness conceded, that is not the case for every sentence; absolute or conditional discharges, which may be relevant here, are such examples. However, we do not think that it should be the case for youth conditional cautions, as I shall try to explain.

Schedule 19 sets the rehabilitation period for adult conditional cautions and youth conditional cautions at three months. We have chosen this rehabilitation period because it is the mid-point between, on the one hand, the period specified in this Bill for simple cautions—that is, those that are not conditional cautions—reprimands and warnings and, on the other, the existing period for the least serious court disposal, an absolute discharge. In other words, a simple caution, reprimand or warning has no rehabilitation period; for the absolute discharge—the lowest that you can get in court—a six-month period has to pass. On the basis that our proposals for simple cautions, reprimands and warnings enter into law, they will be spent immediately, whereas an absolute discharge is already spent after six months for all offenders of whatever age. In our view, the rehabilitation period for both adult and youth conditional cautions should therefore be three months.

The rehabilitation period of three months reflects the fact that it is an out-of-court disposal—that is, a disposal that is less serious than the lowest court disposal, an absolute discharge. As a youth conditional caution is intended to be given in cases that are not serious enough for court but are more serious than a reprimand or warning, which according to the Bill will become spent immediately, it makes sense that the rehabilitation period is midway between the two.

The amendment would reduce the period for the youth conditional caution to half that of the adult, to make it six weeks. However, we would draw an analogy with the rehabilitation period for a conditional discharge, which is a year. The rehabilitation period of that sentence would not be halved for a young offender. Therefore, this being analogous to a discharge, it is sensible to follow the same principle for a youth conditional caution when compared to an adult conditional caution. The rehabilitation period also reflects the fact that we consider that the majority of conditions to be attached to a youth conditional caution are likely to have been completed not necessarily in a six-month period but within the three-month period. That is why we do not think that six weeks is appropriate in this case.

Amendment, by leave, withdrawn.

Schedule 19 agreed to.

Clauses 100 and 101 agreed to.

Schedule 20 agreed to.

Clause 102 agreed to.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

moved Amendment No. 115:

After Clause 102, insert the following new Clause—

"Treatment of 17 year-olds as children for remand purposes

(1) Section 23 of the Children and Young Persons Act 1969 (c. 54) (remands and committals to local authority accommodation) is amended as follows.

(2) In subsection (12), in the definition of "young person", for "seventeen" substitute "eighteen"."

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs

In moving the amendment, I shall speak to Amendment No. 116 as well. Both are in my name and those of my noble friends. Amendment No. 115 concerns, once again, the treatment of 17 year-olds, in relation, in this case, to bail or remand. At present, there is an anomaly here, for while 17 year-olds are still technically children, they are in fact treated as adults when bail is denied, which means that they are automatically remanded in custody and not to local authority secure—or non-secure—accommodation.

The Bail Act 1976 applies in its entirety to children and young people as well as adults, but it is only when the court refuses bail that the law relating to children is substantially different to that applying to an adult. As a result of the Criminal Justice Act 1991, young people under 17 are dealt with in the youth court system and benefit from the rules that ensure that, while bail may not be granted, other provisions are in place to make certain that a remand into custody is always an absolute last resort. This can mean a remand to local authority accommodation, which, if not secure, can include additional conditions to manage any risks and include a YOT pre-court programme or tagging, all of which is extremely constructive. Alternatively, it could mean a remand to local authority secure accommodation for all girls up to 16, and boys if they are considered to be vulnerable. Finally YOIs—youth offender institutions or secure training centres can be considered for non-vulnerable boys of 15 and 16, but that does not apply to 17 year-olds, who are still being dealt with as adults and do not have any of the other options available to 16 year-olds.

Youth Justice Board figures show that 6,561 "episodes"—a curious name, in this case—of 17 year-olds remanded to custody occurred in 2005-6. The Government said that they intended to put this situation right when they responded to the consultation paper Youth Justice—the Next Steps in 2004, but these figures show that it is still merely an intention and nothing has actually happened. Hence the need for this amendment.

Where the line is drawn to distinguish between children of different ages can always have an element of arbitrariness, but there are no obvious grounds for continuing to treat 17 year-olds as adults, particularly when they are still legally children and just as liable to be vulnerable as 16 year-olds. Indeed, the evidence shows that many 17 year-olds can indeed be very vulnerable and are part of figures showing that 60 per cent of boys have serious mental illness. There have been 1,324 self-harming incidents in 2004-5 and six suicides in the past five years. They all demonstrate my point.

When secure accommodation is deemed necessary, which it very well may be, it is generally accepted that children should be kept out of the adult criminal justice system for as long as humanly possible to avoid the damaging effects that custody entails. I therefore urge the Government to consider the amendment very seriously.

Amendment No. 116, to a certain extent, follows on from what I have just said. Children who are detained on sentence or remand should be detained only in secure children's homes and not in a secure training centre or a young offender institution. Once again, the argument is based on the premise that we are talking about children with needs and vulnerabilities, which are now clearly defined and acknowledged in the UN Convention on the Rights of the Child, the Joint Committee on Human Rights, the Centre for Crime and Justice Studies and the Local Government Association, not to mention all the professional bodies involved in the needs of and provision for children who come together under the umbrella of the Standing Committee for Youth Justice.

YOIs are part of the Prison Service. The Prison Service is essentially an institution for adults where the emphasis is primarily on security, control and safety, as well as on making provision for the needs of prisoners. Here I declare an interest as vice-president of the Butler Trust, which I helped to found, and which for more than 20 years has been recognising excellence in prisons by giving awards to staff. So I know just what good work can be done and am always glad to pay tribute to the work it does, which we recognise annually. Indeed, we will be doing so on Monday in Buckingham Palace. I also therefore know that prisons are not places with a child-centred approach or where the welfare of children is the chief priority. Nor are they geared to meet their needs in terms of their staffing, training, management or regimes. And the current overcrowding crisis serves only to exacerbate these problems.

Anne Owers, HM Chief Inspector of Prisons, has voiced real concerns. She has said that in many YOI establishments, a significant proportion of child protection referrals concern allegations of abuse or rough handling during the use of force and that some have resulted in injuries such as broken bones. She questions whether prison is the right or appropriate environment for many of the young people who end up there. We must take these comments very seriously.

I have visited all but one of the secure training centres, and I recognise the hard work and commitment that many people who work in them bring to the task. But they too do not have the predominating welfare approach that children need; and the evidence of the Carlile report on restraint, strip-searching and "single separations"—or solitary confinement in plain English—is enough to demonstrate that they are not geared to do the job appropriately or to give the care needed.

Once again I remind the Committee that one child has died while being restrained. While lessons have been learnt—and it was horrific for all involved—it reflects aspects of the management, culture, staff training and regime that are simply not appropriate.

Before 1997 the Labour Party strongly criticised the plans for STCs, which were then still not built. In 10 years they have been embraced by this Government wholeheartedly and have apparently become a key part of youth custody. That has not been found necessary in Scotland and nor should it be necessary there. These children are often extraordinarily difficult to deal with. They are indeed the young thugs, feral youths and hooligans that we read about in the red tops—and they are familiar to many noble Lords in this place who sit in court as sentencers. They require extraordinary levels of skill, understanding and organisation and so on, to manage them adequately and constructively. They are more likely to be found in secure children's homes precisely because of their focus on welfare needs and their ethos. Not all such homes are as brilliant as they perhaps need to be, but I know some brilliant ones, and you can recognise them as soon as you go through the door. The restraints used elsewhere are not used to anything like the same extent in those homes and the chances of children coming out less damaged are greatly improved.

For as long as they are children, we are duty bound to treat them with the same care as all our children. To do otherwise would be to betray them and to demean ourselves. I beg to move.

Photo of Lord Judd Lord Judd Labour

It would be impossible to rise with more positive feelings towards an amendment than my feelings towards that which has just been moved by the noble Baroness, Lady Linklater of Butterstone. I always feel when I listen to her that she brings the moral authority of her Presbyterian background together with the authority of her engagement. In all my work over a lifetime in organisations involved in social engagement, I always think that those who speak with the authority of actually doing as distinct from just theorising are particularly powerful and should be listened to particularly carefully.

Many of the arguments that the noble Baroness has put forward have been elaborated on in previous amendments. She knows, and she agrees with me, that we should be concerned with children up to the age of 21 for the reasons that she put forward in connection with her own amendment.

We have been over this ground. I simply cannot understand our collective complacency about the issue. The noble Baroness referred to 1997. I worked with great enthusiasm—and I do not mind saying it—for the election of the Labour Government. Part of why I was working with enthusiasm was the Labour Party's enlightened attitude on issues of this kind. I am sad that we have somehow rationalised ourselves into accepting the unacceptable. I do not see how anyone with civilized values who looks at what is happening in Britain can be anything but alarmed.

I look at the statistics again. Since 1990, 30 children have died in custody and care of the state; 28 of those deaths were self-inflicted; one was a homicide; and one was restraint-related. All of those, apart from the most recent which were in secure training centres, were in Prison Service accommodation in young offender institutions. How can we call ourselves civilized and live with that situation? Of course these are children and of course we must have special provision that is carefully designed and styled for the task in hand, which is to save them from a wasted life and enable them to be rehabilitated and to become full and positive citizens. Of course the aura surrounding a prison is all wrong from that standpoint, although I agree with the noble Baroness that excellent work is being done in some prisons.

I crave the Committee's indulgence in drawing my next point to its attention because it relates to the noble Baroness's point about raising the age. In the same period to which I referred, 201 young people aged 18 to 21 have died in custody, including 178 self-inflicted deaths and five homicides. That is a nightmare and it is time we did something about it. The noble Baroness has put forward an amendment that helps us to move towards tackling this issue effectively.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I support the noble Baroness's amendment and could not have agreed more with every word that she said. However, I do so with a certain sadness because what she said has been said over and again for the last 12 years—to my certain knowledge, because I have been involved in a certain amount of the saying of it. All I want is to add two words to Amendment No. 116, which states:

"No person ... shall be detained in a young offender institution or a secure training centre".

The relevant words are "prison or". When I inspected Holloway in December 1995 the governor told me that there were four 15 year-olds in the prison. I asked where they were and why. She did not know where they were and I said that we would look for them during the day I spent with her. We did not find any of them that day but the following morning I found two of them when I went down to the antenatal unit and noticed on the wall a list of names and ages, two of which were 15. I asked the midwife, "Are those two girls pregnant?". She said no. I asked, "Why are they here?". She said, "Because they don't know where else to put them". I asked, "Are all the women pregnant?". She said, "No, we've got psychiatrically disturbed and others". I wondered how on earth a prison service could put two 15 year-old children into such a place in 1995. Having made a fuss then and had promise after promise made to me over the next five and a half years for which I was responsible for inspecting prisons, what disturbs me is that there are still young female children in adult prison accommodation.

Furthermore, during this time of overcrowding, about which we are all concerned, there are children who are being moved into adult prisons before they reach their 18th birthday as an administrative convenience. I personally think that it is utterly unacceptable that any child should go into an adult prison. It should not be necessary to include this in legislation because common sense should prevent it. But as we are spelling out precisely where they should not go, I do not think that it would be consistent with all that we have said about protecting the child if we did not add those two words to the otherwise excellent and complete summary of what is required that the noble Baroness has so ably put forward.

Photo of The Earl of Onslow The Earl of Onslow Conservative

It is impossible to underestimate the support that I would like to give to the noble Baroness, Lady Linklater. Just before the 1997 election I remember a Division in this House in which I voted against what I thought was a piece of barbarism on the part of Mr Michael Howard. I think that I voted with the Liberals because Labour Members were voting with the Tories on that to get the Bill through quickly. I remember saying to the late and much respected and loved Gareth Williams, "After the election the Home Secretary will either be called Michael Straw or Jack Howard", and I have been proved absolutely right.

There is nothing new in this panic about children being feral. In my dim and distant youth when the late Lord Whitelaw was Home Secretary he started something called the short, sharp shock and we had a little experiment with detention centres, but what happened was that in went flabby criminals and out came very fit criminals. I seem to remember that throughout my life people have complained about the disgustingness of the young. The Committee has heard my story about going to schools and declaring that the youth of today have no manners and show no respect. The children all look horrified but then I say, "Don't worry, that was written on clay tablets in Sumeria 2,500 years ago". We have always had problems in this regard. But I thought the really interesting comment made by the noble Baroness, Lady Linklater, was when she referred to the difference between good places and bad places. Surely the money and the effort should be directed at bringing the good schools up to scratch, because they will stop the young getting worse. We must do our level best to achieve that. That is our duty to society. It is our duty as legislators to frame the legislation in such a way that that can be done rather than just say, "Oh, lock the little brutes up and put them down a waste disposal unit", which can be a very easy reaction to have. Frankly, some of them are repellent beyond peradventure; they are not all Lord Goldsmiths. However, the noble Baroness, Lady Linklater, is taking a civilised and intelligent look at what is undoubtedly a serious, persistent and almost certainly impossible problem to cure.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I did not intend to speak on this amendment but the powerful speech of the noble Baroness, Lady Linklater, impels me to comment. When I dealt with children in care and children with major problems as a family judge, I became very well aware that I needed to look also at their elder brothers and sisters, many of whom were 16, 17 or 18 and some of whom were also my charges in a sense when I was dealing with these cases. I needed to consider the extreme vulnerability of young people who have committed offences that are sufficiently serious for them to need to be incarcerated. It was very distressing to consider putting them in an adult prison such as Holloway or a young offender prison. My noble friend Lord Ramsbotham made a powerful speech about the conditions that he found in Holloway. It was distressing when a Tory Government did not do anything about it. As the noble Lord, Lord Judd, said, it is even more distressing when a Labour Government have not done it because one knows that in many ways the heart of a Labour Government is in the right place. But they do not actually deal with the vulnerability of children. A young person of 17 is not actually a child but he or she remains a very vulnerable youngster, however wicked the offence that he or she may have committed. I strongly support these two amendments.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

The recollection of my noble friend Lord Onslow about the short, sharp shock detention centres is relevant because they seemed a good idea at the time. However, they were disappointing because they did not recognise the more sophisticated demands that were presented by the problems of the young people who were in them. I was trying to serve Lord Whitelaw at that time and I remember going to one of the four experimental detention centres at Send in Surrey. I was received there with great enthusiasm and listened to what was said by the very splendid chairman of what I think was called the local liaison committee. She said, "We are so proud of our young men here. You can tell the difference. When they next appear in court they stand to attention and call the magistrate 'sir'". I had to agree that that was a start. However, I am afraid that it did not get much beyond that.

Photo of Lord Bach Lord Bach Government Whip, Government Whip 7:30 pm, 27th February 2008

I pay tribute to the noble Baroness who has tabled these two amendments. Her record in this field is well known by all Members of the Committee, and on behalf of the Government I pay tribute to it. We agree with her that there is an anomaly that needs putting right about 17 year-olds who are treated as adults for remand placement purposes, but as children in every other respect of the youth justice system. We are committed to looking at the issue and we have stated that publicly, as the noble Baroness mentioned, in our response to the consultation, Youth Justice—The Next Steps. We also acknowledge that the United Nations Commission on the Rights of the Child has identified the issue as requiring resolution and we accept our obligation to consider how to reach an acceptable solution.

I reassure the Committee that we have not forgotten about this issue. Indeed, following the publication of Youth Justice—The Next Steps, the issue was the subject of an exhaustive and wide-ranging review. The aim of the review, like the aim of the amendment tabled by the noble Baroness, was to replicate the remand placement structure for 12 to 16 year-olds for 17 year-olds. However, it has proved an extremely complex issue for which we have as yet been unable to devise a workable solution. I hope the noble Baroness accepts this in the spirit in which it is intended: we have looked carefully at her amendment, but there are parts of that complexity that are not solved by it. I shall come to that in due course.

It would probably be helpful if I briefly set out the current remand position for young people. As Members will be aware, where a young person appears before a court on a serious charge and has been bailed to attend, the court itself will normally remand the young person, either on bail or in custody, until a fixed date. This test is essentially the same for all ages, although a young person may be refused bail if it is necessary for his or her own welfare. We should remember, though, that the criteria for bail are not the subject of the proposed new clause. The Bail Act applies to young and old alike.

For those aged 17 or older, if the offender is remanded in custody, the remand for 17 year-olds will be in a youth offender institution. For those aged under 16, a young person will normally be remanded to the care of a local authority and two options for dealing with that remand are then considered—whether to detain the child or young person in secure or non-secure accommodation. The Committee will know that that power is contained in Section 23 of the Children and Young Persons Act 1969. A secure remand can include a placement in a youth offender institution, a secure training or a local authority secure children's home. A non-secure remand can include a children's home or foster care, or a local authority may choose to remand the young person back to the family home under the supervision of their parents.

The amendment would effectively bring 17 year-olds in line with the provisions applying to young people aged 16 and under. That would mean that a 17 year-old would be remanded to the care of the local authority and, subject to either the secure or the non-secure criteria, could be placed in a secure training centre or a local authority secure children's home. Our position is that ideally we want courts to consider whether a secure or non-secure remand option is most appropriate for a 17 year-old. However, we do not believe that they should be remanded into the care of the local authority. Section 23 of the Children and Young Persons Act also provides for the placement of the very youngest and the most vulnerable young people into local authority accommodation. Are we wrong to think it inappropriate to introduce 17 year-olds to local authority care and allow them to mix with that vulnerable group of younger children, particularly those who are there for welfare reasons? That would be wrong in precisely the same way as it was absolutely wrong, in the days the noble Lord, Lord Ramsbotham, was talking about, to have 17 year-olds in Her Majesty's adult prisons.

Photo of The Earl of Onslow The Earl of Onslow Conservative

Is not the logic of that that there should be special homes for 17 year-olds only? The Minister has agreed with the noble Lord, Lord Ramsbotham, that they should not be in adult prisons, and he has said they should not be remanded to local authority homes because it is unsuitable for them to be with younger children. The logic of that is that you have special homes for 17 year-olds; it follows as night follows day.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

That may be a solution for some, it is true. At the moment they go into youth offender institutions, which are not adult prisons. If we rule out remand into local authority care, what would non-secure remand look like? It needs to be more robust than a bail package because it is different from bail but less restrictive than a custodial sentence. In effect, are we looking at the creation of a whole remand placement structure exclusively for 17 year-olds, which is the point the noble Earl has made so well?

A great deal of detailed work has been undertaken to find a solution to this issue. I hope, even if the noble Baroness is disappointed by the conclusion we have reached tonight about her amendment, that she and the Committee will accept that a lot of work is still going on to try to solve this issue. It is not straightforward. There is a whole catalogue of linking factors that, with great respect, her amendment does not cover; for example, the status of 17 year-olds under police bail, which is covered by the Police and Criminal Evidence Act. That would need to be examined to consider the impact on the police in terms of accommodation for 17 year-olds and issues such as the provision of appropriate adults.

We also need to look at the care status of young people under such a provision. Frankly, we need to consider the Bail Act itself and whether it offers us the sort of powers we need to ensure that 17 year-olds are remanded where it is appropriate. For example, we have identified that 17 year-olds who are likely to interfere with witnesses and have been refused bail may end up with a non-secure remand. That cannot be right. The offence of interfering with witnesses is one of the most serious and goes against the principles of justice more than any other, and 17 year-olds can commit it just as much as adults can. Surely the Committee will agree that that cannot be right and that we are failing in our duty to protect victims and the public if we do not address that problem.

The Government have not lost sight of this issue. We are aware of our obligations to 17 year-olds in particular, under the UN Convention on the Rights of the Child and following our response to Youth Justice—The Next Steps. I repeat: we regret that we have not found a solution.

Before I finish with Amendment No. 115 and move on to Amendment No. 116, I should deal with the noble Baroness having mentioned 6,561 as being the 2005-06 statistic of 17 year-olds remanded. In fact, I am advised that that figure is the total number of young people under 18 who are remanded; the number of 17 year-olds was 3,194. That is still a high number. The Committee might be interested to know that the numbers of young people under 18 in custody now—that is, on 15 February, the last date for which figures are available—are 2,353 in youth offender institutions, 242 in secure training centres and 209 in secure children's homes, a total of 2,804.

Not in reply, but adding, to what the noble Lord, Lord Ramsbotham, was telling us, the Government have created completely separate estates for boys and girls, separating over-18s from under-18s. Girls under 17 are in secure training centres or secure children's homes. Girls under 17 are in four new specific units built between 2004 and 2006. The advice that I have received, which was specifically asked for, is that there are no young people under the age of 18 in Her Majesty's adult prisons at the moment.

A huge amount remains to be done, but I hope that the noble Lord, Lord Ramsbotham, will accept, as I hope will other Members of the Committee, that that is an improvement on the position that prevailed previously and during the time when he was doing his excellent job a few years ago. As to her amendment, the noble Baroness could not be more right than to bring this anomaly and possible solution to the Committee. Her amendment is defective because this is such a complex issue and has many more difficult problems attached to it; but we are working hard to find a solution and we would be grateful if noble Lords could help us with that.

I turn briefly to Amendment No. 116. I shall try not to repeat myself, although I have to make some of the same points. In some cases when we need to safeguard young people—and in most cases regarding children under 15—the appropriate place will be a secure children's home. However, children's homes, as I have said, are for children. Most young people of 17 are not children in the same way that a 13 or 14 year-old is; and this is important for safeguarding them.

Surveys indicate that most young people in custody are not worried about their safety, but those who feel unsafe believe that they are at risk from other trainees. Putting 17 year-olds, who may be large or aggressive or even both, together with children some years younger would not only make the younger children feel unsafe, but might put them at risk. We do not think that we should go down that path. However, we are committed to improving the safeguarding of young people in custody and we would argue that we have done a great deal to improve the conditions in which they are accommodated. Despite what another expert in this field, my noble friend Lord Judd, has argued, our record is not bad. To give the latest example, a new unit for more vulnerable 15 year-old and 16 year-old boys is being developed at Wetherby young offender institution.

We believe that that is a practical response to a difficult issue. I hope the noble Baroness will agree that we are taking the matter seriously and that she will withdraw her amendment.

Photo of Lord Judd Lord Judd Labour

I hope my noble friend will not mind me pointing out that while he has given us an impressive array of statistics, there has been a great deal of talk of late in this realm of policy about "fit for purpose". If our objective is the rehabilitation of the young, what is the reoffending rate among these young people and children, and what is the cost to society of that reoffending? He has not given us those statistics. If we are to measure how effective we are being, it is not just a numbers game about how many we have here or there, it is about whether these young people are really being won to positive citizenship or not.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

We all agree that if we possibly can we should keep young people out of custody. Where, alas, that is not possible—I think everyone agrees that sometimes it is not possible, whether it is before trial or as a result of sentence—it is vital that we differentiate between those who are over 18 and those who are under 18 as regards where they are placed. We would argue, too, that it is important that 17 year-olds are not placed with 14 year-olds. It is vital that all is done when they are in custody to try to rehabilitate them. We are all at one on that. The problem is that we do not solve this problem as quickly or as easily as we would like to and it remains a problem for one Government to another Government, and then maybe one day to a third Government. I hope the Committee will feel that this Government, as much as any previous or likely Government, are committed to trying to ensure that our young people, who have their particular problems and issues, are treated in a way that gives them the very best chance of being rehabilitated and leading ordinary, secure and lawful lives.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Spokesperson in the Lords (Penal Reform), Home Affairs 7:45 pm, 27th February 2008

First, I did not say and I have never said that there is not a need for secure provision for young people; it is the type of secure provision that we are talking about here. I thank everyone who has taken part in this important debate. I shall not forget the kind words that have been said around this Chamber. I thank noble Lords for that. I shall also not forget—I hope that the Minister hears this very clearly—the words from the lips of the noble and learned Baroness, Lady Butler-Sloss, who said just how very vulnerable these 17 year-olds are. The statistics I have used—on self harming, suicide and so on— prove that.

I recognise that the Government's intentions are good, but I would like to remind the Minister that secure training centres—child prisons where the children are as young as 12—are a child of this Government. When he talks about, for example, how inappropriate it is to put 17 year-olds in secure children's homes, which are actually designed for them, he is perhaps forgetting not only the vulnerabilities but the implications of putting 17 year-olds with much older and, as it were, much more experienced prisoners in the prison estate. YOIs are very much a part of the prison estate.

The noble Lord said that he could not see why 17 year-olds should not go to YOIs as they would present a risk to younger children in secure children's homes. Of course there are secure children's homes that cater for children with welfare issues. There are others which do not and there is endless scope, if we take up the challenge, of developing the work in secure children's homes. I would love to take the Minister to one or two that I know very well, particularly in Scotland. It is a different world there, where children do not need to have their bones broken when they are restrained. That simply does not happen.

For the moment, I have said enough. I feel very strongly about this, as the Minister understands. I have listened hard to what he said and it is almost inevitable that we shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

Schedule 21 agreed to.

Clause 103 agreed to.

Schedule 22 agreed to.

Clause 104 agreed to.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.