Criminal Justice and Immigration Bill

– in the House of Lords at 3:36 pm on 26th March 2008.

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Clause 1 [Youth rehabilitation orders]:

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 5:30 pm, 26th March 2008

moved Amendment No. 1:

Clause 1, page 2, line 14, after "Schedule)," insert—

"( ) a reparation requirement (see paragraph 24A of that Schedule),"

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

My Lords, this amendment is in identical terms to the one tabled in Committee on 5 February and debated between cols. 978 and 981. I have no intention of repeating my opening remarks, but I shall summarise them. The youth rehabilitation order embraces a number of previous low, medium and high-effect orders in a single unit. I expressed my bewilderment at the Government's decision to keep reparation orders out of the hierarchy and, in reply, the noble Lord, Lord Bach, drew my attention to paragraph 8(2) of Schedule 1, which provides that as part of an activity requirement a specified activity,

"may consist of ... an activity whose purpose is that of reparation, such as an activity involving contact between an offender and persons affected".

I accept that, within the framework of a youth rehabilitation order, it is possible, inter alia, to require reparation. However, I say with great respect to the Minister that that is not the point of my amendment. The point of my amendment is to ensure that all possible dispositions open to the court should be within the framework of the youth rehabilitation order; yet the legislation clearly provides that a reparation order can be made in its own right. I think that the noble Lord, Lord Bach, justified that by saying that the reparation order was a low-level sentence and that the courts ought to have the option of making a low-level order without engaging the mechanisms of a youth rehabilitation order.

If that is so for a reparation order, surely it should also be so for other low-level orders, such as a limited attendance centre requirement or a limited activity requirement. What is it about reparation orders that distinguishes them from other low-level orders and entitles them to have a classification that is quite distinct from that contained in a youth rehabilitation order? I am a great supporter of the youth rehabilitation order and the amendment is in no way intended to undermine that excellent initiative. However, I believe that, having made that initiative, the Government should have the courage to include all the dispositions within its framework. I beg to move.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, we return to the issue of reparation and this amendment, which was debated in Committee. I note that the noble Lord was "dismayed" by the response that I gave during the debate on the amendment. I am a little confused about what could have prompted such a strong reaction because I believe that our position is straightforward. This amendment is not needed. As I attempted to make clear last time and as was made clear by my honourable friend in Committee in the Commons, provision is already made for reparation to be part of a youth rehabilitation order. Apart from that, reparation is also available as a separate order where a youth rehabilitation order is not imposed.

The value of reparation within the youth justice system is well known; indeed, it was alluded to in Committee. We all agree that young people who have offended should accept responsibility for their actions. As part of that, the offender may be required as part of the activity requirement of the youth rehabilitation order to do something practical—ideally, something that will benefit the victim or the community as a whole. Examples were given of things that offenders could be required to do, such as graffiti cleaning, repairing community facilities or conservation work.

As the noble Lord said in moving his amendment, we have made provision for reparation in the requirements of the youth rehabilitation order. Paragraph 8(2)(b) of Schedule 1 to the Bill—at page 115 of Volume II—provides that an activity requirement,

"may consist of or include an activity whose purpose is that of reparation".

If what is needed is for the young offender to take part in a specified activity such as attendance on a Prince's Trust programme and the court would also like to include a reparation element, the court can achieve that by imposing a youth rehabilitation order with an activity requirement. Under paragraph 8(2) of Schedule 1, that may include an activity whose purpose is reparation. The court may also use the activity requirement solely for the purpose of reparation while including another requirement, such as a curfew order, in the youth rehabilitation order. The amendment would achieve nothing more than that.

Reparation can also form part of other requirements attached to the youth rehabilitation order. First, an activity requirement will always form part of the youth rehabilitation order when it is linked with intensive supervision and surveillance. It could also form part of a programme as part of a programme requirement or, in the broader sense, take the form of an unpaid work requirement. In addition, I repeat that we propose to retain the reparation order as a separate sentence beneath the youth rehabilitation order. That will provide the courts with flexibility so that they do not have to resort to a youth rehabilitation order simply to ensure that reparation is made. The reparation order represents a proportionate response to a low-level offence—of minor criminal damage, for example—where the more serious sentence of a youth rehabilitation order would be excessive. That ensures that there is still a hierarchy of community disposals and retains the emphasis for sentencers that the youth rehabilitation order is the highest community sentence. During oral evidence to the Commons committee, both the Youth Justice Board and the Children's Society strongly supported retaining the reparation order as a separate sentence.

As drafted, the new reparation requirement in the amendments would duplicate the provisions for reparation already built into the youth rehabilitation order. They are not necessary and do not go as far as the provisions already in the Bill. It was never intended that all court dispositions should come within the YRO. We are combining all the previous youth community orders, such as the supervision order and the activity order, into one community sentence. Other dispositions remain outside the YRO, such as referral orders, financial compensation orders and fines. Our position is logical and maintains reparative activity as a key theme within the youth justice system. For that reason, we invite the noble Lord to withdraw his amendment.

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

My Lords, I am sorry that my noble friend Lady Linklater is unable to be with us, which is, as the House will know, for health reasons. Will rejecting the amendment mean that the position of reparation orders in the hierarchy as the Minister has explained it has less bite in relation to funding? One of the difficulties of supervising reparation orders is that there is just not the funding for supervisors. In a scheme fairly local to me, the young offenders were engaged in almost exactly the sort of activity that the Minister described: cleaning up a wall. The person who had initiated the activity ended up having to do some of the basic things himself, such as providing lunch. Will the Minister comment on the funding of reparation orders? Is he satisfied that there is sufficient funding in place for them to be a practical provision?

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, as I understand it—I have no specific advice on the important point that the noble Baroness raises—there are, in general, no funding problems with such orders. If the noble Baroness does not object, however, I will take away her question and send her a letter, with a copy to the Library and any other noble Lord who is interested.

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

My Lords, I thank the Minister for his full reply. He has striven hard to convince me of the error of my ways and I at least appreciate the effort that he has put into it. However, I remain totally confused as to why the Government should have picked out one low-level requirement—reparation —rather than a number of others, such as, as I said, limited attendance centre requirements or limited activity requirements, and given it a status on its own, independently of the YRO.

I had understood the Government to be marketing the YRO as a new beginning: a generic order that effectively embraced all the disparate orders that applied to young people in one provision, where the justices and the judges could specifically select a menu for the offender before them. I accept that, because of paragraph 8(2) of Schedule 1, one item in that menu, via the activity order, would be a reparation order. Under the YRO, you can indirectly make a reparation order. However, that reinforces my concern about why there should be, quite independently of the YRO, a separate, distinct provision for the reparation order.

I am aware that the various organisations that take an interest in this matter are not entirely of one mind about the desirability of the Government's approach. For example, the Magistrates' Association shares my view, but one or two other organisations take the Government's point of view. Given this division of view among real experts in the field, I am not inclined to press the amendment to a vote. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Photo of The Earl of Onslow The Earl of Onslow Conservative 5:45 pm, 26th March 2008

moved Amendment No. 3:

After Clause 1, insert the following new Clause—

"Custody of children: conditions to be met

(1) A court must not pass a custodial sentence unless—

(a) the offender has already been the subject of a youth rehabilitation order, or orders, which falls within section 1(3), or(b) the offence, or the combination of the offence and one or more offences associated with it, and the risks the offender poses to the public are so serious that, notwithstanding the age of the offender, a youth rehabilitation order which falls within section 1(3) cannot be justified for the offence.

(2) Where the court does pass a custodial sentence it shall set out in writing its reasons for doing so, both in general and with specific reference to the individual conditions set out in section 1."

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, we are back to the custody of children. I am afraid that noble Lords will not hear from me the eloquence we heard in the Royal Gallery. My French is certainly not as good as Monsieur Sarkozy's, and I do not have the hard neck to try to charm the Government Front Bench in the way that he charmed us. I shall just bang on in my old-fashioned way to try to persuade the Government of the error of their ways.

The point of this amendment is that we should not be sending children to prison or giving them a custodial sentence unless it is absolutely unavoidable. This amendment attempts to introduce a threshold. We went over this matter in considerable detail in Committee, and in the Committee stage in the House of Commons there was an implication that something could be done about this. The Government have used Section 152 of the—I cannot remember which Act it is—and say that it is the guiding body behind how sentencing should be carried out. The youth justice people think that is not good enough, the JCHR thinks it is not good enough and I do not think it is good enough. The Government must have a much better reason for objecting to this amendment than the one they introduced in Committee.

There is one flawette—if that is the right word—in that subsection (2) is, I am told, probably unnecessary for the simple reason that all courts have everything they say recorded. Subsection (2) is otiose, but if we were to agree this amendment there would be no difficulty in taking it out at Third Reading. I beg to move.

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

My Lords, we support this amendment, as we did in Committee. As the noble Earl, Lord Onslow, pointed out, we went into considerable detail when we discussed it there, so I shall not repeat the arguments. I note that in their letter of 19 March, the Government's explanations for their amendments that are grouped with this amendment go some way towards raising the custody threshold, which is what we sought in Committee. They place a requirement on the court when sentencing a young offender to custody to consider whether it could pass a sentence consisting of a YRO with intensive supervision and surveillance or with intensive fostering. The key to the amendment is that it also requires the court to set out the reasons why those alternative disposals cannot be used so custody becomes the default position. We believe that there is a difference between what the Government are trying to do and our amendment in that our amendment adds greater clarity to the circumstances in which custodial sentences are to be handed down. It particularly highlights the requirement to consider not just the offence committed but also the risks to the public. That seems entirely reasonable because, as we have said at length, a child should not be locked up just to mark what he has done if he does not pose a significant risk to the public. The risk test is a more relevant test of need for the very serious step of locking up a child—in other words, sending him into custody. If the court does choose custody, the fact that it will now have to set out its reasons not just in general but also by reference to the specific tests set out in the new clause and to its assessment of the risk would also add a great deal of clarity. On that basis, we argue that our amendment is superior to the Government's amendment.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, the noble Earl deserves thanks for and congratulations on having brought this matter before the House again. He need not, in his most Francophile, chivalrous moments, apologise in any way for any lack of comparative eloquence. He put his case as strongly and effectively as possible. That case is meritorious. We have been told over and over again—the matter cannot be overemphasised—that in the incarceration of children, compared to the other countries of Western Europe, we are again at the head of that unmeritorious league. We incarcerate more children than Germany, France, Holland and Norway put together. The same is true of the incarceration of young people and adults, so there is a damnable consistency, if I may say so, in our attitude to incarceration and loss of liberty in general.

That is a wider point. I concede that the Powers of Criminal Courts (Sentencing) Act 2000, to which I think that the noble Earl, was referring, and the Criminal Justice Act 2003 between them contain very considerable restrictions on the incarceration of children—and of young people, for that matter—but they are not working. That is the strength of the noble Earl's amendment. Anything that brings home to the mind of a sentencer the necessity of using incarceration —by that, I mean the loss of liberty in general—more effectively than at present will be very much to the benefit of the community.

I urge the Minister to consider that this matter deserves further consideration. After all, all that has really been asked for is that practically the same wording as is contained in many criminal statutes passed over the past 15 to 20 years in respect of adults is applied to children. The exact words of those statutes seem to have been incorporated in the amendment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I put my name to the amendment for the exact reason that the noble Lord, Lord Elystan-Morgan, has just given. I was very grateful for a meeting with the Minister last night in which he explained that the provision to have reasons put in writing was irrelevant, as the noble Earl, Lord Onslow, said.

In fact, of interest to me, very much following on what the noble Lord, Lord Elystan-Morgan, said, is a remark made earlier by the noble Lord, Lord Bach, in reply to the noble Baroness, Lady Miller. It concerned resources. One thing that has always concerned me, underpinning the sentences awarded to young people, is whether the resources are there to do what is in the mind of the sentencer when the sentencer decides that that is appropriate. The amendment therefore goes rather wider in its ramifications than the mere wording. In order to make the youth justice system as effective as the public deserve, there ought to be more coming together between those responsible for the sentencing, those responsible for administering the sentence and those responsible for providing the resources. There is a serious disconnect at the moment, which is undermining the ability of the youth justice system to do what is required of it.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I, too, support the amendment. I also had the benefit of attending the very helpful meeting with the noble Lord, Lord Hunt, last night and I, too, took on board the point that it is not essential to provide for the recording of what has been going on in a juvenile court, because that is done automatically and is done anyhow in an adult court.

However, I take the points made by my noble friend Lord Elystan-Morgan, apart from the graphic opening description of the noble Earl, Lord Onslow, of why this is back on our agenda. These points are absolutely crucial. We lock up a number of youngsters rather than seek again and again to give them time to develop and to change their ways. With that very much in mind, I hope that the Minister will see that there is a point in putting this into the Bill on Report.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, will the Minister say when he replies to what extent the formula in the amendment would inexpediently fetter the discretion of a sentencing court?

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I shall add a little to what has been said in support of the amendment, which we discussed at some length in Committee. It is quite difficult to discuss custody being used as a last resort, because "last resort" is a relative term. Obviously the last resort is very different in Finland, where five boys under 18 and no girls are in custody, from the last resort here, where I think around 2,800 juveniles are currently in custody. It might be helpful if we could all agree on some idea of a last resort.

In Committee, I said that custody was probably being used as a last resort only when it was justified on the grounds of extreme seriousness and the danger of real risk or real harm being presented by the child. Subsequently, I had a very helpful letter of about 12 pages from the Minister, for which I am extremely grateful. I appreciate the hard work that went into it. However, it challenged the use that I made in Committee of the statistics that I felt established clearly that we were not using custody as a last resort. The Minister's letter said that I was incorrect in that respect, so I felt that it would be helpful to put a little of that discussion on the record.

The Minister and some of us here disagree as to whether the children currently locked up have really committed offences that could be described as serious and dangerous. His letter tells us that the children currently in custody have been convicted of offences that could have been serious. It states:

"For instance, robbery is essentially stealing with the use or threat of force and can attract a maximum penalty of life imprisonment".

That is so, but I understand that robbery is also the charge used for stealing a pencil case from another child in the playground, with the threat of force or some minimal force of the sort that one can see in many playgrounds at many times of the day.

Although the Minister quite rightly says that many of those currently in custody have committed offences that come under the heading of "violent", the Standing Committee for Youth Justice says that,

"while violent offences can of course be very serious when you look at an analysis of the disposals for such offences you will discover that the majority are towards the lower end of the scale for seriousness. Almost 70% of such matters result in a reprimand or final warning".

We still have a long way to go in ensuring that we use custody as a last resort, and I agree with what noble Lords have said before me: if this is on the statute book, courts are in a position to have no doubt that they are right to look as hard as possible for some other disposal and to try as hard as they can to keep children under 18 out of custody. I am therefore very happy to support the amendment.

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, 26th March 2008

My Lords, I welcome the amendment tabled by the noble Earl, Lord Onslow, which gives an opportunity to debate these important matters. As ever, he spoke eloquently and with charm. This goes to the heart of our debates about the youth custody system. Again, noble Lords have expressed their concerns about the number of young people in custody and have made comparisons with other countries. While one needs to be a little cautious about international comparisons, I have already made it clear that the Government share the aim of all noble Lords who have spoken in our debates that custody should be the last resort.

I also acknowledge the comments made by the noble Lord, Lord Ramsbotham, about the need for an integrated approach between the Youth Justice Board, the work of YOTs at local level and the contribution that local authorities should make. The noble Lord will know that the youth crime action plan is being developed. He will also be aware of the new arrangements for accountability and the role of the Department for Children, Schools and Families alongside my department in terms of the relationship with the Youth Justice Board.

I would also refer the noble Lord, Lord Ramsbotham, to the new approach to local area agreements with local government, which gives local authorities much more ownership of those agreements and will have the benefit of focusing local authorities much more on the group of young people with whom we are all concerned. While I do not believe that anyone has a magic wand that can produce the resources needed or the quality of service required, I believe that we are facing in the right direction. We clearly need to build and enhance that. The whole purpose of the YRO structure we are debating is to produce a much more rational, co-ordinated approach in which it is clear from the intent that custody is the last resort.

Before responding to the noble Earl, Lord Onslow, in particular, I shall speak first to my amendments, which I hope show that the Government have listened carefully to what noble Lords have said on this matter. Section 174 of the Criminal Justice Act 2003 already places a duty on a court to make a statement giving its reasons for and explaining the effect of a sentence. In particular, where custody is imposed, it must say in accordance with Section 152(2) of that Act, that,

"it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence".

So the court has to explain why it is of that opinion.

The government amendments would supplement this provision to require the court, when sentencing a young person aged under 18 to custody, to include a statement that it is of the opinion that a youth rehabilitation order with intensive supervision and surveillance or intensive fostering cannot be justified for the offence and to explain why it is of that opinion. That goes a long way to providing the safeguard that noble Lords require. The noble Lord, Lord Elystan-Morgan, referred to existing legislation. He said that it is not so much the legislation; it is the practice of sentencers. In our debates on the Bill, we have been to and fro between discretion and direction to sentencers. I hope that my amendment gets the balance right. It does not seek to fetter the discretion of sentencers, but gives the sentencers another point to consider. A statement on why the YRO with intensive supervision and surveillance or intensive fostering cannot be justified would have to be made. In that sense, a custodial sentence is justified.

Noble Lords are saying that I do not go far enough, and I am grateful for the conversations that I have had with noble Lords on this matter in the past 24 hours or so. I think that we have agreed on the requirement that a statement should be in writing. My understanding is that that is already a requirement of the law. If the magistrates' court imposes custody, its reasons must be set out in the warrant of commitment and a transcript of Crown Court proceedings will always be made as there may be an appeal to the Court of Appeal. The noble Earl, Lord Onslow, has already acknowledged that point.

I turn now to the noble Earl's amendment and its potential to raise the custody threshold, which is our concern. We are concerned that asking the court not just to look at the seriousness of the offence, but also to assess the risk the offender may pose to the public in the future, raises the threshold unnecessarily. I know that noble Lords have argued that if an offender commits an offence they ought not necessarily to have to face custody unless they also pose a future risk to the public, but one has to think about the consequences of that. If an offender could commit a really serious violent offence, as the law stands they could be found guilty perhaps of grievous bodily harm with intent. My understanding of the amendment is that, in that situation, the courts could not impose a custodial sentence unless the prosecution could also prove that the offender is a risk to the public.

It might be argued that if someone commits such an offence, it is axiomatic that they must pose a risk to the public. I understand that argument. But the problem that I have, and the advice that I have received on this, is that similar provisions are already on the statute book in the dangerousness provisions of the Criminal Justice Act 2003. My understanding is that very few offenders are assessed as dangerous—according to the Youth Justice Board, there were only 24 in 2005-06. But, as the sentencing statistics for 2006 show, to which I referred in my very long letter of 10 March to the noble Baroness, Lady Stern, more than 1,000 young offenders were sentenced to custody for serious violent offences alone. So we have a real concern that if we were to accept the amendment, it perhaps would have the unintended consequence of ensuring that even young people who had committed a very serious offence—where it would not be possible to prove the risk to the public—would not be given a custodial sentence.

I understand why noble Lords are concerned about the number of young people in custody and I accept that this is a genuine concern that many of us have, which is why we want to make custody a last resort. But custody sometimes will be a necessary condition and we would be concerned about the unintended consequences of the amendment proposed by the noble Earl, Lord Onslow. The Government have listened very carefully to the arguments put forward in Committee and I hope that noble Lords, on consideration, will consider that my amendment at least meets noble Lords somewhat more than half way. It reflects a shared concern about ensuring that sentencers understand the importance of custody being the last resort.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I apologise for omitting to thank the Minister for allowing me to barge in on his meeting yesterday. I thank him very much indeed. He was very forthcoming and it was helpful, but I think we are now coming to the crunch on agreements.

The Minister said that custody must be necessary. If it is necessary, it should follow that it is the last resort. He said that 24 people had been assessed by the courts as dangerous and that 1,000 people had been locked up. That indicates to me that at least some of those 1,000 should not have been locked up because they were not assessed as dangerous. We should try to keep people out of prison. We know—it has been established by research after research—that prison is, on the whole, not curative. It is rather like being sent to Eton and Oxford to learn how to do crime. I know that the Conservative Party has an old Etonian as its new leader but we do not, I hope, as a country, have to follow him in the Prison Service as well.

We must try very hard to keep people out of prison. Subsection (1)(b) of the proposed new clause, which refers to,

"the risks the offender poses to the public are so serious that, notwithstanding", covers the issue. I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 112.

Division number 1 Private Parking: Ports and Trading Estates — Criminal Justice and Immigration Bill

Aye: 70 Members of the House of Lords

No: 110 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Schedule 1 [Further provisions about youth rehabilitation orders]:

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, with government Amendment No. 4 I will speak also to Amendments Nos. 5, 15, 24, 25, 31, 34, 116 and 117. Amendments Nos. 4 and 5 are technical; they amend references to probation boards to take into account changes made in the Offender Management Act 2007. The amendments ensure that the reference is consistent with the new legislation.

Amendment No. 15 is a technical amendment that changes the minimum time limit for the completion of a youth rehabilitation order with intensive supervision and surveillance. At present, paragraph 32 of Schedule 1 provides that a youth rehabilitation order with intensive supervision and surveillance must specify a date, not earlier than 12 months after the date on which the order takes effect, by which all the requirements must have been complied with. The amendment will change that minimum period from 12 months to six months.

The youth rehabilitation order with intensive supervision and surveillance is based on the Youth Justice Board's current intensive supervision and surveillance programme. It is the most robust community sentence available to the courts, which is why, when replacing it with the youth rehabilitation order, we have placed statutory restrictions on its use so it is reserved as a direct alternative to custody. Currently, the intensive supervision and surveillance programme most often lasts for six months. We think that the youth rehabilitation order with intensive supervision and surveillance should reflect that current practice.

Amendments Nos. 24 and 25 add the intoxicating substance treatment requirement to paragraph 9 of Schedule 2 so that a reasonable refusal of treatment will not lead to breach action by the courts. That is already the case with a reasonable refusal of treatment under the drug treatment and mental health treatment requirements, and it is appropriate that we bring the intoxicating substance treatment requirement into line.

Amendments Nos. 31, 34, 116 and 117 are minor and technical. Section 161 of the Criminal Justice Act 2003 currently provides for the court to order pre-sentence drug testing where a person aged 14 or over is convicted of an offence and consideration is being given by the court to imposing a community sentence or a suspended sentence. Amendment No. 31 removes the lower age limit of 14 for that pre-sentence drug testing. That reflects what has already been done for the drug testing requirement in the Bill, which may be imposed as part of a youth rehabilitation order by the court as part of its sentence. The other amendments are consequential to that change; they update dependent parts of the legislation and remove redundant delegated powers that relate to the provision in the Criminal Justice Act 2003 that we are removing. I commend these amendments to the House, and I beg to move.

On Question, amendment agreed to.

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. 5:

Schedule 1, page 118, line 10, at end insert ", or

(c) an officer of a provider of probation services."

On Question, amendment agreed to.

Photo of The Earl of Onslow The Earl of Onslow Conservative

moved Amendment No. 6:

Schedule 1, page 121, line 2, leave out "include a local authority residence requirement" and insert "make"

Photo of The Earl of Onslow The Earl of Onslow Conservative

Here we are, my Lords, back at legal representation for minors. The noble Lord, Lord Hunt, sent me an immensely long letter that was well drafted by the Civil Service. I had quite a lot of trouble understanding it because, as with all of these things, I accept that it was designed as much to spread paper as to spread knowledge and light. However, after a bit of digging out it appears that although we said in Committee that it would cost £800,000 to fill this gap, the situation is much worse than was originally thought. In the calendar year 2006, there were 126,000 cases of under-18s being charged. Of those, one-quarter did not apply for, or get, legal aid.

As the Minister said in his letter, if all under-18s applied for legal aid, it is estimated that the additional cost to the Legal Aid Fund would be £17 million. Let us assume for the sake of argument—and I quite concede that this is an assumption off the top of my head—that half of the children who could have applied for legal aid, if they had done so or indeed if they had known about it, would have been given it. That would mean an extra £8 million, not the £800,000 that we were talking about earlier. The Government cannot say that that would cost extra money; that money should have been voted on the assumption that most people who were being charged would require legal aid. The money is theoretically there. If everyone said, "I want legal aid", and the Legal Aid Board awarded it on the interests of justice test, the Government would be landed with a bill of, let us say, half—which is probably being quite conservative.

This has ceased to be a money argument. The Minister said to me in his meeting, "It would cost 17 million quid and I haven't got 17 million quid"—I am sure he does not, and I understand the point he is making—but it is there if people want it and apply for it. They are entitled to it, so he would have to find the £17 million. That is the difficulty.

One of the people at yesterday's meeting said, "This is a means-tested benefit that is not taken up in the way it should be". I am certain, because this is the way of the world, that the people at the bottom of the heap, the people who are probably in care, disturbed and all those sorts of things, are less likely to apply because they are not canny. Surely it is the duty of us all to look after the most underprivileged, not only for their benefit but for ours. I do not how often I have to go on saying it, but if we catch, treat and help them early enough, there is a chance that some of them might go straight. I do not deny that some of them are quite disgusting—you can picture them: spotty, surly, baseball cap on backwards, with the occasional grunt coming out. One would want either to lock them up or to cover their feet with concrete and dump them overboard; I quite understand all that. But they are the most underprivileged people and we have to look after them.

It is on those grounds that I again raise legal representation. I thank the Minister for his informative letter. I am not sure that my amendment is the right way to do it, but the letter has brought to the public's notice something that we did not previously know or quite understand. I beg to move.

Photo of Lord Brabazon of Tara Lord Brabazon of Tara Chairman of Committees, House of Lords 6:30 pm, 26th March 2008

My Lords, there is a mistake in the Marshalled List. The amendment should read as follows:

"Page 121, line 2, leave out from "not" to "a" in line 3 and insert "make"".

Photo of Lord Judd Lord Judd Labour

My Lords, I support the noble Earl and congratulate him on his perseverance in this matter. His point—that we are dealing with some of the least articulate and most disadvantaged children in our society—is crucial. Whatever they have done, we have to remember that. His amendment speaks of what is necessary for justice. In these days of the predominance of the market, I may be very old fashioned. I am not against the market as a principle, but I think that it needs to be seen in perspective. I therefore cannot accept the argument that a cost that might result from the amendment should make it unacceptable. It is justice that we are concerned about, and justice sometimes costs money. If that can be ensured only by proper representation, so be it. I urge the Minister to take the amendment very seriously indeed.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I, too, strongly support the amendment, and I should like to explore a few of the circumstances around it.

Like the noble Lord, Lord Judd, I deplore any suggestion that funds are not available to give the people we are discussing what is their right as citizens. Tomorrow, the Independent Asylum Commission, of which I am a commissioner, will launch a report in which one of our findings is exactly the same; that is, that a lack of provision of legal aid is affecting a number of asylum seekers. I see a parallel in young offenders and the number of complaints that they make. People say that they do not make complaints, but that is not so. As one finds when talking to them, they are not guided, aided and enabled to make complaints, or put in the way of making them. The numbers that the noble Earl read out suggest that hidden among the quarter of young people being charged who are not applying is a large number who should and would qualify if the means were made available to them.

I wonder whether the numbers are known and, if not, why not. Surely we should have a better understanding of what it means in financial as well as legal terms. Should it be the responsibility of the Youth Justice Board to find out? I do not know. I am concerned that the Youth Justice Board appears slightly to have lost its way by failing to provide leadership on a large number of issues connected with youth justice, of which this may be one. There may be a legal way of doing it—I am not an expert on this and do not know—but it is important to establish the facts so that we know what is involved. We should then look at the procedures to make certain that as many qualified young people as possible are put in the way of getting the help they require. Surely that will have an impact on the justice they receive, and therefore on the outcome—which, as so many have said, is aimed at protecting the public.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I, too, support the amendment. It is worrying that something like a quarter of the under-18s being charged may not be applying and are not really aware of their rights. As we are all aware, the people most likely to be in that group are the most deprived and the most difficult to reach, perhaps because of their family circumstances. It is doubly worrying when one thinks that this is the group of young people that the Prime Minister is targeting as the most vulnerable. As the noble Earl said, it is for our sake as well as theirs that they get the help that they require, because they will ultimately cost society so much more if their situation is allowed to continue. Their contribution to the nation, which could be positively unleashed, would be lost.

I support also the remarks of the noble Lord, Lord Judd, who is always so eloquent on these matters. Prevention is crucial. As has been said, we need to ensure that as much independent advice as possible is provided to young people who are in this position and to their families.

I am a little worried that court services are allowing the numbers of young people mentioned to go without legal aid. I agree with my noble friend Lord Ramsbotham that research is needed in this area. I hope that it will again be thought hard about.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I support the sentiments expressed by all noble Lords who have spoken on this matter. The case is unanswerable. There are few cases more meritorious than people who are inarticulate and unable even to understand their position, and who are so much in need of legal advice and a voice to speak for them. Denial of that voice and that advice is undoubtedly a denial of justice.

It is clear that many thousands of young people fail to take up the opportunity of applying for legal aid in circumstances where it would probably have been granted to them. That means, in financial terms, that the Government are thereby profiting from the failure, which I know is neither their intention nor their desire. It also means that some of the £17 million to which we have referred should not be there at all, in so far as it is in reserve and unspent. Further, I have no doubt that there could be a cost-benefit factor here that is not irrelevant.

Perhaps I may make one practical suggestion. It would assist take-up if the obligation of drawing to the defendant's attention his rights to legal aid were placed on the desk sergeant, who is responsible for dealing with the procedures when a person is arrested. One extra little box should be added to that ample document that is the custody memorandum. If anything is going to work, that would be it.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I hope the Minister will clarify what is emerging from our discussion and from his letter to the noble Earl, Lord Onslow, which I have not had an opportunity to read—that the cost is not a cost. It would be a case simply of people who have an entitlement taking it up, rather than not taking it up so that the money was left in the budget to be spent on something else or else returned to the Treasury. I would be grateful for clarification that this understanding is right.

Amendment No. 86, which is on the issue, is in the group. Proposed new sub-paragraph (3A) states that:

"The grant of a right to representation shall be presumed to be in the interests of justice where the individual is under the age of 18 at the commencement of the proceedings".

If you are talking about someone under the age of 18 it would be hard to argue against that, with the problems of understanding and of vulnerability. Perhaps the Minister will say whether he is in favour of that. If not, perhaps he will say how he justifies not being when we are talking about people under 18.

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

My Lords, peering through the smoke and gloom of 11 years of new Labour government, increasingly authoritarian as it is, there is a shining beacon—a light—and it was the passing of the Human Rights Act and the incorporation of the European Convention on Human Rights into English law. There is no point in having rights unless there is a means of enforcing them. Similarly, the Government have ratified the United Nations Convention on the Rights of the Child—rights that are given to young people under the age of 18. That is useless unless the child has available the ability to enforce those rights. That is what the amendment is about. It is about making available the provision of legal aid and legal representation, which will be of assistance not just to the person before the court but to the court itself, because the magistrate or judge who is dealing with a young person wants to do the best for that young person, and wants to ensure that the sentence passed is the most constructive and the least negative one that can be achieved. That is done through informed argument and discussion by those who know something about it.

To be complacent about the fact that a quarter of those entitled to legal aid do not claim it is, quite honestly, an ignominious retreat from the principles under which the Human Rights Act was made law in this country. We on these Benches wholeheartedly support the amendments.

Amendments Nos. 6 to 10 are confined to the making of a YRO. That is a serious step in itself; it is not the beginning of the process of children appearing before the court. Amendment No. 86 addresses a wider issue—the right of a child to have legal aid in any criminal proceedings. Amendment No. 86 is very carefully put together. It creates a presumption that a person under 18 should have legal aid; it also envisages circumstances whereby that presumption can be rebutted in the appropriate case. Surely that is the right balance—that the young person should have a presumption in his or her favour to have proper legal representation, and only in certain circumstances, the onus of proving which lies on the other side, could that right be taken away. Hand in hand with rights granted by this Government is the need to enforce those rights. That is what these amendments maintain.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I also particularly support Amendment No. 86 and the principle behind it. I respectfully endorse everything that the noble Lord, Lord Thomas of Gresford, has just said. It is important to bear in mind that under new sub-paragraph (3B) proposed by the noble Earl, Lord Onslow, and the noble Lord, Lord Ramsbotham, there will be cases where it is not necessary to have legal aid. There will be a large number of road traffic offences—even for those well under the age of 17—and criminal damage offences, particularly graffiti, and there may be other minor offences for which children will find themselves before the youth court.

We are really looking at the disadvantaged minority that the noble Lord, Lord Judd, and, indeed, the noble Earl, Lord Onslow, were dealing with, who are probably facing the more serious offences whereby he or she—particularly he—is likely to be seriously disadvantaged if there is no one to speak for them. I particularly have in mind children in care.

A large number of children who appear in the youth court are also going through care proceedings. They do not have parents to look after them. They will almost certainly be excluded from school. They have a succession of social workers, who may be short-term. They do not have advisers, although under the children Bill, which recently had its Third Reading, there will be advisers; they may or may not be in place at the moment. They may not have a single person who matters to them to whom they can go. But the one thing they are entitled to is representation in court in those sorts of cases which matter. The noble Lord, Lord Thomas of Gresford, has reminded us that the Human Rights Act makes that a right. That is the sort of child about whom the noble Earl, Lord Onslow, was really talking in moving the amendment. We should particularly look at Amendment No. 86.

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 6:45 pm, 26th March 2008

My Lords, this has been an extremely interesting debate. I congratulate the noble Earl once again on raising the matter. We have shone a light into an area which has not been discussed recently, and we have identified some areas, as he reflected, which probably need further research to discover whether people who ought to get legal representation are not getting it. The evidence for that is very slim indeed. My department has received no representations from organisations involved in the criminal justice sector to suggest that this is a genuine problem—and I will come back to the question of whether further research needs to be undertaken.

I also congratulate all noble Lords on their approach to monetary matters and what I can only describe as inspired accountancy. I will come back to the point about where the £17 million now is. My noble friend quite rightly said that justice costs resource. Of course it does. The current budget for legal aid in this country is £2 billion. We have the most generous legal aid system in the world. The kind of expenditure is, I think, £38 per head compared to about £3 or £4 in France and Germany. In countries with systems that seem akin to ours, such as Ireland or New Zealand, I think the figures are about £7 or £8 per head. I know that noble Lords will point to areas where they think more legal aid resource should be spent. That is fair enough, but we start with a basis of a huge amount spent in this country on legal aid. We spend as much on legal aid as we do on the direct cost of the Prison Service. I will come on to the question of resource in a moment.

We think that the current arrangements give sufficient and proper protection to young defendants. That case rests on the Access to Justice Act 1999, which says that all defendants must satisfy the interests of justice test to qualify for publicly funded representation. In applying the test, the court takes into account a range of factors. This includes whether the defendant is of a young age and whether they can understand the proceedings or state their own case.

There have been some changes. Since October 2006, defendants appearing before the magistrates' court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation. However, that was changed in November 2007. From that point, all defendants under the age of 18 have been passported through the means test, so this has become a universal benefit if the interests of justice test has been met, as the noble Earl, Lord Onslow, suggested. That change was warmly welcomed by the legal profession, the judiciary and the Law Society, and I do not always look to the Law Society for support on legal aid matters.

My understanding is that in practice it would be extremely rare for a young person applying for legal aid not to pass the interests of justice test. As I said in Committee, this arises only in less than 2 per cent of applications. In many cases, the test is passed because court staff take the view that the young person may well not understand proceedings and so would be unable to state their own case. Therefore, in the overwhelming majority of cases, young people applying for legal representation will qualify.

It is important to stress, however, that we know that approximately one-quarter of the 126,000 youths who appeared in court in 2006 did not apply for a representation order. As the noble and learned Baroness, Lady Butler-Sloss, said, many of those cases involve the more minor summary offences, particularly those related to motoring offences, public order offences and criminal damage cases. It is probably entirely appropriate that legal representation is not required in those cases. However, I have no evidence to suggest that in the serious cases that noble Lords mentioned legal aid was not applied for, and that when applied for it was not given. I accept that we lack evidence in this area but, as I say, I have no hard evidence to suggest that there is a major problem in those circumstances.

The noble Lord, Lord Elystan-Morgan, made an interesting suggestion about the advice that might be given to desk sergeants in custody suites. I shall reflect on that important consideration. When a young person is arrested, cautioned and taken to the police station to be interviewed, she or he should be informed of access to free and independent legal advice and offered the services of the duty solicitor. That young person may well have taken up the services of the duty solicitor. That suggests that if the system is working well, there is no reason why a young person should not be represented if they ought to be.

On resources, your Lordships felt that the figure I quoted in Committee of £800,000 sounded a very small sum. It was based on the 1.7 per cent who failed the interests of justice test. The problem I have is that if all the people brought before the courts applied for and were granted legal aid through the interests of justice test, there could be a considerable increase in the legal aid budget. That is a risk that I do not feel I am in a position to take. I know noble Lords think that I have £17 million which I am saving for a rainy day or some other purpose. Alas, it is not like that. I have a cash-limited budget of £2 billion, which is set for the next three years.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, if, peradventure, another 20 per cent of these people apply for legal aid and 10 per cent of that 20 per cent are granted it, the Minister will have to find it, will he not, because they are claiming a right to which they are statutorily entitled? I think that is right, so he still has to find the £17 million, or whatever the sum is.

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

Yes, my Lords, but I have to find it from the legal aid budget. There is nowhere I can go to suddenly produce an extra £17 million. It would have to come from other parts of the legal aid expenditure. That is why I feel that as a government Minister I would need to have much more information about the consequences before I could support the proposal of the noble Earl, Lord Onslow.

Amendment No. 86 concerns a rebuttable presumption that all youths under 18 years would satisfy the interests of justice test. My view is that the interests of justice test already addresses this by asking whether the defendant is capable of understanding the proceedings. Equally, it might be argued that the presumption could be rebutted by taking into account the seriousness of the alleged crime. But again, this would be adequately covered by the interests of justice criteria regarding the likely loss of liberty in the event of conviction. Therefore, we see this amendment as essentially operating much as the existing interests of justice arrangements do. The figures seem to indicate that the system works well in that so few young people are refused legal aid representation when the interests of justice test is applied.

This has been a very genuine debate. While I cannot on behalf of the Government support the noble Earl's amendments, I accept that—as he, the noble Lord, Lord Ramsbotham, and other noble Lords said—we clearly need a better understanding of how this is working. I will ask my department to contact the Law Society, the Justices' Clerks' Society and the Magistrates' Association to verify whether they have real concerns in this area. As I say, we have received no representations at all from those bodies on these matters. I will also ask my officials to explore with the Legal Services Commission and Her Majesty's Courts Service whether everything is being done to inform youth defendants of the arrangements for entitlement to legal aid. I will add to that the suggestion of the noble Lord, Lord Elystan-Morgan, as regards information to be given to desk sergeants in custody suites, to see whether that can be done. I shall ensure that the results of my inquiries are published in a report and placed in the Library. If problems come to light as a result of those inquiries, I can consider introducing changes via secondary legislation under the Access to Justice Act 1999 if I am persuaded that a genuine problem has been unearthed.

I hope noble Lords will consider that a constructive response, given the constraints within which I am operating. I again thank the noble Earl, Lord Onslow, for raising the matter.

Photo of Lord Judd Lord Judd Labour

My Lords, before my noble friend sits down, let me say that I am sure that I am not alone in the House in greatly appreciating the way in which he has tried yet again to meet a real anxiety that has been expressed. In his future discussions and representations, will he bear these points in mind? Budgets are not set in stone. Behind everything else, there is the basic question of how much in a decent society, of which justice is an important part, we prefer to rely on private affluence, although that is a much wider debate. Can he please make the point that there is a special need here, because we are dealing with the young? So often in our deliberations, we have talked about the paramount importance of rehabilitation in getting things right for the future because of all the cost that lies ahead if we do not get it right; there is a false economy. Therefore, if justice demands that there should be more financial provision, it should be made available. It is great that my noble friend can say that we are more generous than any other nation in the world; I, for one, am extremely proud of that. Let us follow through the logic of the course that we have set.

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 7:00 pm, 26th March 2008

My Lords, we are on Report, so I will briefly respond to my noble friend. I thank him for his kind remarks. Of course budgets are not set in stone, but there is a cash-limited budget for legal aid for the next three years and, frankly, if we increase expenditure under one heading, it has to come from somewhere else. That is the practicality of public finance. On that basis, I need to be assured that there is a special need, but so far there is no evidence to suggest it. That is why the best course of action is what I have suggested, which is to contact the organisations that should know best. If they identify a real and genuine problem, of course I shall give further consideration to this.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I hope that the noble Lord will indulge me for a tiny moment—

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, I am not stopping the noble Baroness, but I am grateful to her for giving way. I remind her that we are on Report. Only the mover of an amendment or the Lord in charge of the Bill may speak after the Minister on Report, except for short questions for elucidation to the Minister, or where the Minister speaks early to assist the House in debate, which was not the case for this amendment. Will the noble Baroness ask a short question for elucidation, as I am sure she was intending to do?

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I am most grateful. Am I right in thinking that everyone over 18 who is arrested on a charge is automatically offered the chance to apply for legal aid? I am unclear why that right is not also available to children under 18.

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, the general point is that the interests of justice test applies to adults as well. Eligibility for legal aid is rather a complex question. I think that I need to write to the noble Baroness on the general point, because it is not something that can be answered quickly. The general point is that the interests of justice test is applicable to much wider situations than with the young people whom we are talking about.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I thank the noble Lord for his answer, in which he has gone a very small way down the road of reassurance. A way forward that would make me quite happy, and I hope that would appeal to those noble Lords who have spoken in my favour, is to ask the noble Lord whether he can make his inquiries before Third Reading. I will table an amendment for Third Reading to cover the same point, by when he will have had time to make some inquiries. It is obvious that the Minister does not know where the 25 per cent goes. I am not in any way blaming him for that; it is a problem that has come up. We have discussed it and none of us really knows the exact nature of the problem. The noble Lord has said that he will try to find that out, so the best thing for me to do now is to withdraw the amendment and table another on Third Reading—

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

My Lords, may I ask the noble Earl a short question for elucidation? Is he reserving his position on Amendment No. 86 until we reach it in due course during consideration of the Bill, which I think will be some weeks hence?

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, frankly, I was hoping that no one was going to ask me that. Although Amendment No. 86 is grouped with this amendment, I am tempted to speak to it later. I notice the noble Baroness, Lady Stern, smiling and nodding on the other side of the Chamber; if that is not going to encourage me to speak to Amendment No. 86 later, I do not know what is. What with that and the comment of the noble Lord, Lord Thomas, I will reserve my position and speak to Amendment No. 86 later, because it goes slightly broader and wider. I thank the noble Lord for his attitude on this and for his genuine desire to help. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 to 10 not moved.]

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, at the end of a useful debate that we had something like two months ago at the beginning of Committee stage, I said that we would return to the question of facilities for the treatment of young people with a dependency on or a propensity to misuse alcohol. We all agree that it is right to have separate arrangements for this purpose. It is the first time that we have done so in legislation as far as I am aware, in spite of the fact that alcohol misuse leads to far more crime than drug misuse. We now have it in the Bill, for which we are grateful. We were addressing the question whether the arrangements in the Bill were proportionate to the problem and would enable the courts to apply the requirement with confidence that the necessary facilities actually existed. If they do not exist, or if they are seen to be ineffective, those young people who commit offences because of alcohol misuse will continue to be given custodial sentences to dry them out temporarily, without addressing the problem that causes them to commit the offences in the first place.

Following that debate, the Minister wrote a helpful letter clarifying the powers of the court. Effectively, he said that with alcohol and other intoxicating substances, and with mental illness as well, the requirement is limited to attending the place where the treatment is to be delivered and does not extend to the actual treatment itself. That is because the requirements have to be subject to the Department of Health's general guidance on consent and to the provisions of the convention on human rights. Compulsory treatment is not absolutely prohibited by Article 5 on the right to liberty or by Article 8 on respect for private life, both of which are subject to reservations, but the Government obviously take the view that, rather than taking the risk of litigation on these matters, they will make the orders and the treatments that depend on them "voluntary". I put that word in inverted commas, because presumably the YRO and the treatments to be offered to the defendant are as an alternative to a custodial sentence that would have been imposed if the person had not been prepared to accept the treatment requirement.

In his letter of 4 March, the Minister said that in 2006-07 more than 25,000 young offenders were assessed by the youth offending teams and received early intervention and treatment for substance misuse voluntarily under DTTOs, now rechristened DRRs. He does not say how many of those cases related to alcohol or, of the ones that did relate to alcohol, how many were successful in terms of compliance. That is essential information that your Lordships ought to have if there is to be confidence in the YRO and the associated alcohol treatment requirement.

I accept that the National Treatment Agency is the main repository of expertise in this matter. The Minister endorsed my comments on the report Review of the Effectiveness of Treatment for Alcohol Problems. Incidentally, the report emphasised the cost-effectiveness of brief interventions, which would be delivered at a much earlier stage than we are talking about here. I hope that there will be provision for brief interventions in the criminal justice system, too, as they have proved effective in the health system and are being piloted in a number of hospital accident and emergency departments. They follow the great success of the Paddington alcohol test, pioneered by Dr Robin Touquet, which has resulted in a reduction of something like 50 per cent in the number of young people coming back to A&E departments within two years following the treatment.

The noble Lord said in the letter that the treatment services are indeed to be provided through the National Treatment Agency, which approves the deliverers of treatment, although it is a matter for the youth offending teams to make arrangements locally for access to the services by the young offenders who are their responsibility. Will the NTA provide guidance to local authorities and PCTs on the services that it will approve? If it does not, how can it ensure that best practice is achieved? What seems to be lacking, if I may say so, is any strategic mechanism through which the NTA can prescribe minimum standards or best practice, which it says is a must for all interventions to be effective.

I was particularly concerned by the Minister's comments in his letter that only a small number of young offenders who had failed previously to engage with YOT treatment services would need the further coercion and support that we are discussing and that, because those offenders would be clients of services that are already provided, no additional funding would be needed. Therefore, we are passing this provision in the knowledge that there is no money behind it. That is pathetic and short-sighted, given that as many as 1.1 million dependent drinkers may benefit from more intensive treatment given by specialist workers and given that we know that for every £1 spent on treatment £9.50 is saved in crime and health costs. Those figures come from NOMS.

The failure to allocate more resources to the treatment of young offenders with alcohol problems, who are likely to cost far more than the average dependent drinker, is a grave omission. The 2006-07 British Crime Survey recorded 1,087,000 violent offences in which the offender was thought to be under the influence of alcohol; nearly half those were young people aged between 16 and 24.

Last week my honourable friend the Member for Hornsey and Wood Green was told in an Answer that 14,500 people under the age of 18 were prosecuted in Greater London alone for drink-related offences in 2006—much the same figure as in the previous two years. That was the tip of the iceberg, because in 73 per cent of reported crimes the offender was not caught and half the cases where there is an arrest do not lead to prosecution. This and other evidence lead me to believe that we are putting insufficient effort into identifying young people whose offending behaviour is related to alcohol and into addressing the problems that they suffer when they come before the courts.

I acknowledge that the crux of the problem, which is highlighted by the small number of people who have been subject to DTTOs, is that the overwhelming majority of young offenders with alcohol problems who come before the courts are not identified as needing treatment. This is not addressed by the treatment requirement, nor, I confess, by these amendments, but the expected frugal use of these powers by the courts is a sad reflection of the low priority that has always been given to alcohol, compared with other drugs, by the Government. I hope that this debate may do something to redress the imbalance. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 7:15 pm, 26th March 2008

My Lords, I am grateful to the noble Lord, Lord Bach, for copying to me the letter that he sent to the noble Lord, Lord Avebury. I have to say that the point that caused me most concern was that this alcohol-related treatment, along with the other drug and mental health treatment requirements, is subject to general Department of Health guidance on consent. This concerns me, because at the heart of the youth justice system and the carrying out of detention and training orders, for example, by youth offending teams is the working out of what should happen to a young offender during their sentence, based on an assessment of need. That is allied to an assessment of the time available and the priority of need, which is judged according to the various aspects that have prevented someone from living a useful and law-abiding life.

It is a matter of some concern that Department of Health guidance should be preventing the Ministry of Justice, the Department for Children, Schools and Families and others who have to work out what should be done with young people from enabling those young people to embark on a course of treatment to tackle what seems to be at the heart of many of their problems. I must ask whether, in the spirit of the amendment, it is not possible to go back to the Department of Health and revisit the guidance to see whether it can be made more in tune with the need of young offenders and, therefore, the protection of the public, which the Government say means so much.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I wonder whether the noble Lord, Lord Ramsbotham, is really objecting to the use of the word "consent". It seems that the difficulty is that children of a certain age have rights as to whether or not they should have to undergo medical treatment. One might consider putting treatment for drink or drug problems within the remit of treatment for mental health problems. There might even be a physical problem regarding the way in which people will be treated. However, the courts have said over the years that relatively young children, certainly those under 16, have increasing rights. That goes back to what Lord Denning said years ago in the Gillick case regarding the rights of children, but it applies right across the board.

I would have thought that the Department of Health guidance, which applies to girls receiving advice on contraception, would equally apply to girls or boys being offered treatment for intoxication or drug problems. I do not think that the Department of Health would change that guidance, even though it might be extremely inconvenient if a youngster refused to take the treatment. This is a major problem, but I am sorry to say that it cannot be solved by suggesting that the Department of Health should change its guidance.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, I am grateful to the noble Lord, Lord Avebury, for raising again this important topic and for referring to my letter to him and other noble Lords in answer to our debate in Committee.

I shall deal with the point made by the noble Lord, Lord Ramsbotham, which, perhaps I may say, has been answered comprehensively by the noble and learned Baroness, Lady Butler-Sloss. This is not some Department of Health guidance that is out on its own somewhere and is not relevant to other matters. It relates to the whole problem of what may be required in terms of medical treatment of a young person. Unless that treatment is to be given under the powers of the Mental Health Act, there is very little that the court can force a young person to do. Under the new order, the court can and, I hope, will require them to attend the place that is providing treatment. That is within the court's power, but unless the offender is subject to the Mental Health Act 1983, it is not within the court's power to do much more.

There are two parts to the noble Lord's amendment. I know that he wants a debate rather than for us to concentrate on the two parts of his amendment, but I will, if I may, talk about them briefly. On the first part of his amendment—that which mentions the Royal College of Physicians—we do not think that it is desirable or practical to restrict the direction of intoxicating substance treatment to individuals who have been approved by the Royal College of Physicians.

We have been advised by the Department of Health and the National Treatment Agency, and they are of the common view that dependency on intoxicating substances can be resolved in a treatment intervention where the main worker is not a medical practitioner. It could be that some of those providing treatment will have no formal qualifications—what matters is that they are effective. This provides the flexibility that is required in the provision of treatment.

As was said in Committee, there may be cases in which the treatment could be delivered by a person with the necessary experience, through previous experience of addiction. In reality, those who have had direct experience of substance addiction can be most effective in directing treatment. For young people, such personal experience can and does provide powerful testimony of the dangers of addiction to substances. It is probably common sense to say that such persons are unlikely to be approved by the Royal College of Physicians.

Moreover, as I set out in my letter, the National Treatment Agency is the provider of these services and it will approve who delivers treatment. This is right because it is the authorised national body. The current wording of the requirement emphasises that the treatment worker must have necessary qualifications or experience to direct treatment. It has been agreed by the National Treatment Agency and the Department of Health and offers sufficient safeguards to ensure that treatment is directed by someone who is suitable for the role. Importantly, it allows for the sort of flexibility that is vital in order to ensure that a young person receives the sort of treatment that is tailored to their individual needs and circumstances. This wording is consistent with the drug treatment requirement in the Bill—paragraph 22(1) of Schedule 1—and the adult drug rehabilitation requirement in the Criminal Justice Act 2003.

The second part of the amendment does not reflect how such treatment is either delivered or funded; I know that that is what the noble Lord is concerned about. Youth offending teams already refer young people to these services. Indeed, the majority of young offenders receiving treatment for substance misuse access these services without recourse to a formal court order. This means that they will be signposted to treatment provision via the normal youth offending team supervision process.

Earlier today, I asked my officials to provide me with a case history for my own benefit; I hope that it will not appear condescending to mention how it might work. It may be a bit simplistic but I hope that the House will bear with me; it raises quite an important point. The noble Lord was getting at how this might work in practice.

My offender is called Michael; he is neither spotty nor surly. He has been convicted of a theft offence and is awaiting sentence. When he was arrested—perhaps even before he went to court but certainly before his sentence—he was first assessed by the responsible YOT officer so that a pre-sentence report could be prepared for the court. It was identified that he had a problem with excessive alcohol consumption, which had contributed to his erratic behaviour—indeed, to his offending behaviour. The responsible officer speaks to Michael about his offending behaviour during one of his regular YOT appointments. They agree that alcohol misuse is playing its part. The responsible officer refers Michael to the YOT substance misuse worker and tells Michael that he feels that he may benefit from a referral to that worker and that he can use some of his YOT appointments for just that end. Michael is not compelled to undertake this course of action but it is strongly recommended. Michael considers this offer and feels that he could benefit from a referral to the substance treatment worker and agrees to it. Consequently, he meets the YOT substance misuse worker, who refers him for further targeted treatment, using the NTA substance treatment budget. That is the end of the tale.

The majority of young people who are subject to YOT supervision in whatever form it takes and who are in need of alcohol treatment will receive this treatment without recourse to a court order by informal referral to the dedicated substance misuse worker who is attached to the YOT. If they were to refuse to engage with this informal referral, the YOT may seek a court-ordered attendance for treatment, which, under the YRO, would be the intoxicating substance treatment requirement. In our case, Michael, before he was sentenced, may have refused point black to do any of that; that would be the sort of case in which, under the YRO that is given to him as his sentence, there would be an attendance for treatment order.

I hope that that makes things slightly clearer rather than more complicated. We consider the intoxicating substance treatment requirement to be the safety net that underpins the normal supervision process.

Funding and provision—the noble Lord was concerned about those—are devolved to local areas. Young people's specialist substance misuse treatment services are currently funded via the National Treatment Agency. I hope that I will be able to give some figures in a moment about that funding. Provision is commissioned locally and youth offending teams are the largest commissioner of these services. It is the role of the local youth offending team to identify local facilities and providers and to establish whether the services provided are appropriate for the particular young person. Information about suitable treatment services and facilities for a young person will be provided to the court as part of the pre-sentence report, as I showed in my example. The court will therefore receive the necessary information about the facilities being recommended through this process. A centrally held list of facilities would not add much value. Indeed, such a list would be unworkable and difficult to maintain accurately. The treatment services are delivered locally with availability changing constantly. The maintenance of a central list might be overly bureaucratic and, more importantly, would be out of date pretty quickly.

On funding, the total YOT funding via the Youth Justice Board is some £8.5 million per year. That is for substance misuse workers to be employed. The NTA provides £24.7 million per year towards specialist substance misuse treatment. That is beyond the YOT funding for young people across England; of that sum, more than 40 per cent of referrals into treatment in the year 2006-07 were for young offenders.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, could the noble Lord break down those figures into those relating to drugs and alcohol respectively?

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, I am afraid that I do not think that I can; I have a note to that effect. The Youth Justice Board does not break down the figures for substance misuse into separate substances, so there is no separate figure for alcohol because—I am not sure that this will be satisfactory to the noble Lord—the system is geared for substance misuse in the round. This still makes a distinction between illegal drugs and substance misuse, which includes alcohol and glue-sniffing, as defined in the Bill.

The crux question being raised in the amendments is whether that requirement will need further funding. We do not think so. All YOTs are funded to provide substance misuse workers to support screening, early intervention and referral on to specialist services. As I have just explained, young people's substance misuse treatment services are funded via the National Treatment Agency's pooled treatment budget. Local children's and young people's partnerships are expected to ensure that children and young people can access the full range of treatment as outlined in the guidance given by the NTA. In practice, young people subject to the requirement will also access services provided by this funding arrangement. Therefore, we do not believe that bringing into being these orders, which do not exist for substance misuse as defined in the Bill, will require further funding. I think that the noble Lord's point is that there is not enough funding in the first place to deal with this social problem, and that is a matter that we must take back and consider carefully.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs 7:30 pm, 26th March 2008

My Lords, I am extremely grateful to the Minister for his thorough reply, although he did not respond to the questions that I put to him when I spoke to the amendment. I shall repeat them so that he can consider whether a further letter would be of use.

I asked about the sanction behind this treatment order. If a young offender refused to accept it, would he be liable to receive a custodial sentence? In the hypothetical case that the noble Lord cited, Michael has been resistant to the voluntary efforts of the YOT, which then imposes an order under this section. The possibility of a custodial sentence would warn the offender that if he continued to refuse to attend, he might be brought back before the courts and suffer such a sentence. That would be the incentive for him to comply with the treatment requirement where he had been unwilling to do so voluntarily.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, the usual breach rules, which we will discuss later in government amendments, provide some answer in that, as I understand it, there needs to be a very serious breach before an offender can be brought back the first time—I am talking in shorthand now. The question was whether the offender should be brought back to court automatically after a third breach. After the dinner break, the Government will move amendments suggesting that if the YOT officer thought that the third breach was not sufficiently serious, although a reasonable excuse was lacking, it would be wrong to bring the offender back to court. Therefore, in exceptional circumstances, the YOT officer is able not to bring back the offender.

If the offender is brought back to court for a breach of a YRO—I think that that is the subject of a later amendment—as I understand it, the court is not bound to send him to custody; it has a choice. Therefore, it would not necessarily follow that someone who breached the order would go into custody. However, you cannot require someone to receive medical treatment. You can require a person to attend a hospital but you cannot require him to undergo medical treatment. I hope that that answers the noble Lord.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, that may well be the answer to the point raised by the noble Lord, Lord Ramsbotham. The person who is subject to the order at least runs the risk of being brought back before the court and receiving a custodial sentence if the court feels that that is the only way to deal with the matter. That would apply if Michael, having been through the voluntary system, failed to attend when he was obliged to do so under the YRO. Therefore, the element of compulsion may not be necessary if that possibility is hanging over the offender.

I also asked the noble Lord whether he could give us some idea of the effectiveness of the 25,000 voluntary attendances. Was the treatment effective in reducing the offending behaviour of the majority of young offenders who complied with the voluntary system—the Michaels at an earlier stage—and came out the other end, the treatment having been delivered? I think that the orders are likely to be much less effective for those who are compelled to attend than they are for those who attend voluntarily. For the latter, there is at least the spirit of compliance with treatment for their alcohol problems, whereas the ones that we are talking about now will have to be compelled to receive the treatment.

In conclusion, the informal approach is good but the noble Lord has underestimated the need for additional funding, which was, as he correctly inferred, my main reason for asking your Lordships to consider the matter again. I hope the noble Lord will agree that we can at least undertake some research on the effectiveness of YROs and look at the figures again later to see who is right—him or me—about the amount of funding that is provided for them. I continue to believe that we underestimate the influence of alcohol on offending behaviour generally and in young people in particular, and therefore I make no apology for having brought back this matter to the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 and 13 not moved.]

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 beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that Report begin again not before 8.37 pm.

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