Further written evidence to be reported to the House

Criminal Justice and Immigration Bill – in a Public Bill Committee on 23rd October 2007.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 10:30 am, 23rd October 2007

I welcome the members of the Committee to a more traditional Committee room for deliberation and scrutiny of this important Bill.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I beg to move amendment No. 164, in clause 1, page 1, line 5, after ‘aged’, insert ‘over 10 and’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments: No. 165, in clause 1, page 1, line 5, after ‘aged’, insert ‘over 12 and’.

No. 166, in clause 1, page 1, line 5, after ‘aged’, insert ‘over 14 and’.

No. 1, in clause 1, page 1, line 5, leave out ‘or before’.

No. 163, in clause 1, page 1, line 8, at end insert

‘for a maximum of 3 years’.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I welcome you, Sir Nicholas, and other hon. Members to the Committee. I do not whether it is because mine is a deeply reactionary nature, but I feel more comfortable in these surroundings than I did in the other room.

This series of probing amendments is intended to gain a clear view from the Government about the precise age range that the orders will cover. Amendment No. 164 suggests a lower age limit of 10, amendment No. 165 one of 12, and amendment No. 166 one of 14.

From reading the latter parts of the Bill, it is clear that the Government intend the orders to be used for children under 14. In schedule 1, on page 91 of the Bill, and in the Government amendments in that respect, we see that attendance centre requirements can be used for an offender aged 14. We must therefore assume that there is a Government view of the suitability of that sort of attendance. I have no quarrel with that; I just want clarity. Many criminal justice Bills ago, we had many learned debates about the age of criminal responsibility. A Latin phrase, which has now completely gone out of my head, was used to describe what was until then the age of criminal responsibility. I see puzzled looks in the room—everyone has now forgotten the phrase; it has been consigned to history.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

Is the hon. Gentleman referring to the debates on doli incapax?

Photo of David Heath David Heath Shadow Leader of the House of Commons

I am so grateful to the right hon. Gentleman. He remembers the phrase because we were both dealing with Home Office affairs at the time. It is always good to have classical erudition added to the debate. Doli incapax is exactly the phrase that I was trying to recall. We had long discussions about whether it was right to extend to a lower age the assumed capacity of a child to know that they had done wrong.

That is an historical debate, however. The law was changed. Doli incapax was removed as a legal concept and children are now brought before the criminal courts at a much younger age. I tabled amendments Nos. 164 to 166 to enable the Government to state clearly at what age they expect the new orders to apply.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

The hon. Gentleman says that the amendments are probing. There are many difficult judgments to be made about the capacities of individual children in various circumstances, so I should have thought that he would accept greater flexibility for the courts to make sensible decisions. However, I wonder what his view is. Is it that a specific age should be nailed down? If so, what is it? He has tabled a number of amendments in what might be described as a typical Liberal Democrat approach. Considering his knowledge of the subject, I am sure that he has an opinion.

Photo of David Heath David Heath Shadow Leader of the House of Commons

It is unfortunate that the right hon. Gentleman put in that little barbed comment towards the end of his speech.

Photo of David Heath David Heath Shadow Leader of the House of Commons

He says that he could not resist, but it is a fairly well worn track for Opposition amendments to offer a range of options so that the Government can argue for or against each one, so I do not think that that method of questioning can be seen exclusively as a Liberal Democrat attribute.

I would find it very difficult to accept that what is essentially a criminal law sanction should be used for a child under the age of 10. We have very well founded systems within our social services for dealing with children who misbehave at that age. Although I do not dispute for one moment that there are processes—sanctions is perhaps the wrong word—which a child who misbehaves at a young age ought to undergo in order that they might be taught a better standard of behaviour, I am not sure that this is the process by which that should be done. I hope that that answers the right hon. Gentleman. There is nothing on the face of the Bill to indicate any lower age limit and that is why I thought that it would be useful for the Minister to have the opportunity to say what he thinks.

Amendment No. 163 deals with the slightly different matter of the length of currency of such an order. The amendment suggests that the words

“for a maximum of 3 years” be inserted into the clause relating to the making of the orders. Again, we find that schedule 1 gives an intimation of the Government’s thinking, but no more than that. Schedule 1, part 4, deals with provisions applying where the court makes youth rehabilitation orders. Paragraph 31(1) states:

“A youth rehabilitation order must specify a date, not more than 3 years after the date on which the order takes effect, by which all the requirements in it must have been complied with.”

That suggests that the Government intend a currency of three years as a maximum for an order.

The difficulty that I have with that wording—the Minister might like to comment on this—is that it is not clear to whom the words

“must have been complied with” are addressed. Does that apply to the authorities or to the individual who is subject to the order? It is not clear to which of the two those words apply. What is to happen if the authorities are in breach, as opposed to the individual? Are the authorities to be brought back to the court to show why they have not complied with the order within three years—presumably in that instance with regard to provision that should have been made within that time—or is the provision really intended to ensure that the currency of the order is no more than three years? If that is the case, I suggest to the Minister that the amendment would make the Bill more explicit, would state the case better and would be a valuable addition to the Bill. If that is not the Government’s intention, the Minister can explain exactly what is intended and why paragraph 31(1) gives that slightly ambiguous statement.

Those are the four amendments that stand in my name and that of my hon. Friend the Member for Cambridge. I do not intend to divide the Committee on three of them, but, if I have divined correctly what the Minister intends by the current drafting, the fourth is a  serious suggestion for making the Bill more explicit. The hon. and learned Member for Harborough may now wish to expand upon the remaining amendment in the group, amendment No. 1.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

When the hon. Member for Somerton and Frome tabled the amendments, I thought that he wanted to have a debate about the age of criminal responsibility, but I see that that is not the case. I am happy that we will not be having such a debate this morning, because I am not sure that it is necessarily what we want to do when discussing the Bill. None the less, the amendments provide us with an opportunity to invite the Government to be a little clearer in their response to the speeches from Opposition Members about the general policy behind clause 1 and schedule 1, and to see if we can tease out some details and the intentions behind them, so that the Bill may be better understood.

Amendment No. 1 is very simple; it requires the Government to explain why the words “by or before” are necessary. Surely the person is convicted by a court and he will also be before that court, unless he is an absent defendant. Surely clause 1(1) would perfectly easily and sensibly read

“Where a person aged under 18 is convicted of an offence, the court by...which the person is convicted may in accordance with”— and so on, or

“the court...before which the person is convicted may in accordance with”.

I may be being not unusually obtuse, but for the present purposes, I cannot see the point of having both prepositions. No doubt, the Minister will explain the thinking behind that.

Again, it is not for me to answer for the Government, and I realise that much of the Bill is pretty muddled, but in relation to the three-year point with which amendment No. 163 deals, inserting

“for a maximum of three years” into clause 1(1), I suspect that if one looks at schedule 1, one will conclude that the sentence must be on the defendant, so the order, which is the sentence, is on the defendant, and he must comply with that within three years. The court does not sentence anyone other than the defendant. I think that I have probably made my point. Although the language of the Bill may be inelegant and somewhat opaque, I think that most of us would be able to understand that the defendant—the offender—must have completed the requirements imposed upon him within a period of three years. That strikes me as being reasonably clear.

I do not have much to say about amendments Nos. 164 to166, which deal with the bottom age of the person convicted of the offence, other than that there is reference, as the hon. Member for Somerton and Frome pointed out, in schedule 1 to the age of 14 in relation to an attendance requirement. That reference to the age of 14 is not replicated in all or any of the other requirements. That may be an oversight or it may be deliberate, but it is certainly susceptible to clarification.

I do not want to have a stand part debate at this stage, but it is important, at least from my party’s point of view, that we set out our general concerns. The Bill is  very ill drafted in all sorts of ways; it has been pulled together. I do not like to tease the Minister of State with stories of plum-duff, because he finds that offensive. It appears that he had a neglected childhood and did not have any plum-duff—that was the evidence he gave during the course of the hearings in the Boothroyd room. I will leave that aside.

In an ideal world—and I appreciate that being in government is not necessarily ideal—this Bill would have been deconstructed and reduced into several separate Bills. As it stands, it is totally devoid of a theme. Part 1 and schedule 1 are examples of that. There are lots of confusions. If one were to sit down with a hot towel on one’s head, one could probably get to the bottom of them. What concerns me is that when the Bill is implemented and practitioners and courts have to find their way through it, there will be the sorts of difficulties that the hon. Member for Somerton and Frome has raised.

The other relevant matter is a proposal that appears to have Government support. It was reported in this morning’s newspapers. I will take one example from The Daily Telegraph, which was the first to come to my attention on the internet. It stated:

“Children as young as 10 will be given the power to punish young offenders as part of a new Government experiment to reform troublemakers...

The so-called children's court will deal with lesser offences such as graffiti, under-age drinking and anti-social behaviour.

It will hand out minor sentences, for example asking the offender to clean up litter, or working on tidying up a garden.

A pilot scheme is running at the Restorative Justice Centre in Preston. If it is successful, it will be brought in across the country. Ministers believe that peer pressure from the youngsters’ own age group will encourage them to reform their ways, and the court aims to punish up to 300 children in its first year.

As part of the controversial project, which began this week, some of the youngsters sitting on the jury will have been identified by police as potential troublemakers themselves.”

Apparently, the initiative has been funded by a £487,000 grant from the Treasury, which was agreed by the Chancellor. The scheme has been criticised by magistrates. John Fassenfelt of the Magistrates Association—a body that we heard from in the evidence sessions last week—said:

“Children do not have the balance or maturity to make a judicial decision. We are very much against this and we are amazed that such a meaningless exercise should have been given so much taxpayers’ money.”

My hon. Friend the Member for Arundel and South Downs (Nick Herbert) said:

“Faced with a rising tide of violence, the public deserves proper punishment for young offenders to deter them from a life of crime.

Cleaning graffiti or forcing thugs to apologise to their victims should be an additional penalty, not a weak substitute for justice in the courts.”

That is a newspaper report and it may be wholly inaccurate. The Government may have no such plans and there may be no such activities going on in Preston or anywhere else. However, we need a degree of clarity in Government thinking on how to deal with youth crime.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth 10:45 am, 23rd October 2007

I am listening to the hon. and learned Gentleman with interest, but I wonder whether we will be asked to look at every newspaper report that contains fairly light discussion of some very serious issues, rather than at the considerable body of evidence on reparation and at the different experiments in engaging young people with the process?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The right hon. Gentleman misunderstands me. I am a keen supporter of restorative justice, in the right cases, whether it involves young offenders, children or adults. What I am concerned about—if I consider it necessary, I shall produce newspaper reports that reflect on the amendments under discussion—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. May I suggest that we do look at the amendments we are discussing? I say to the hon. and learned Gentleman, who is a very distinguished lawyer, that he is going rather wider than the amendments under consideration.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Sir Nicholas, you are probably right—in fact, I am sure that you are right.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I have to say to the hon. and learned Gentleman that I am right.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

As our hon. Friend the Member for Congleton (Ann Winterton) frequently says, no doubt.

To return to my neat and thoroughly coherent argument, how we deal with children who commit crimes is an important matter. It is hugely important because if you do not prevent them from getting into the criminal justice system, if you do not prevent them from committing crimes before the age of 10, the chances are that they will get stuck on the conveyor belt of minor and then increasingly serious criminal behaviour. They end up before the courts, they end up in custody, they end up in young offender institutions, and they end up in adult prisons.

We already know—this is not controversial, the Minister will agree—that the reoffending rate for youngsters is in excess of 70 per cent.; and some figures suggest that it is as much as 75 per cent. For adults, the rate is in excess of 65 per cent. That is an awful waste of life and an awful waste of public money. I am as determined as the Minister is to bear down on the amount of reoffending, and as keen as he is to ensure that youngsters, whether below or above the age of criminal responsibility, are diverted from becoming involved in crime and the criminal justice system.

I used the illustration of the children’s courts referred to in this morning’s edition of The Daily Telegraph as an indication of my concern that when we look at the amendments and when we look at schedule 1 and clause 1, we do not see a coherent pattern of approach to the issue. I am not accusing the Government of being ill motivated; I am just accusing them of being somewhat disorganised. When the Minister of State responds to the amendments on behalf of the Government, I would appreciate it if we can extract from him a little more about the philosophy behind the Government’s approach. Having said that, I will leave the matter there and I look forward to hearing others who may wish to contribute.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I am grateful to the hon. Member for Somerset and Frome—

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I am grateful to the hon. Member for Somerton and Frome—we need a screen, like we have in the Chamber—for giving us the opportunity to talk about the age of criminal responsibility. I do not think that the Committee wants a major debate on the morals of that question, but we have at least a chance to say a few words about it. By the way, we were squeezed for time at the end of the debate on Second Reading, and I got five minutes to speak in which I think I referred to the age of consent. That was one example where I was clearly wrong, Sir Nicholas, although I later corrected it.

It is interesting, however, that the age of consent is 16. There are all sorts of inconsistencies about when children reach adulthood. For example, I do not know whether the Government have done this already, but they were talking of increasing the age at which a person can buy cigarettes to 18. In that respect, the presumption is that one is still a child until the age of 18, when one can decide to buy cigarettes.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

As my hon. Friend says, this is an extremely interesting topic, and he may be interested to know that the Minister for the third sector, our hon. Friend the Member for Corby (Phil Hope), was one of those who worked with the National Youth Bureau to unpack some of these issues in a project known as the process of enfranchisement. That project demonstrated that far from there being one point at which a child moves into adulthood, there is a series of steps running over some 15 to 20 years, through which different aspects of how a child is able to do things or is treated change over time.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

That is a very good point, which should be recognised where it can be; if not in the law, then in administrative arrangements. Some people, including some MPs perhaps, never grow up, or in some aspects of their lives never grow up, but I will not go down that path, or you will cut me off, Sir Nicholas.

We have the lowest age of criminal responsibility in Europe, at 10. However, it is lower in Scotland at eight, which I think is not a long way off from being barbaric and I hope that the Scottish Parliament will revisit that at some point. We still have one of the lowest ages of criminal responsibility and it came out of the Jamie Bulger case. The Government understandably responded to the public reaction, and that is why that measure was brought in. However, I have been to conferences of, for example, young offender team managers, and they do not like it. They do not agree with the age of criminal responsibility being set at 10—they think that is too low. Other professionals who work with children also think that.

The Government have said that they will not revisit the matter, but I think that they should look, if not at the age itself, at the process of dealing with children in those circumstances. On Second Reading I said—and the amendment provides an opportunity for me to say it again—that the welfare and development of the child must remain the paramount concern of the state. Most  of the offences committed by children are not horrendous, but even in cases such as that of Jamie Bulger, once a child has been taken into custody, the welfare and the development of that child must remain an important principle for the state.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I am sorry to disagree with my hon. Friend, and I do not disagree that the protection of the child’s welfare is an important principle for the state, but I thought that the Crime and Disorder Act 1998 clarified that the prime purpose of the youth justice system is to reduce and prevent reoffending, not least because offending damages not only the victim and the community, but the family and the individual offender themselves. That is why it is such an important principle. I understand my hon. Friend’s point, but it must be seen in context when we deal with youth justice issues.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I bow to my right hon. Friend’s terrific expertise and I accept that that is a key issue. However, I still return to what may in some cases be deemed to be the paramount point: that the welfare and the development of the child do not go away in those circumstances. They remain the responsibility of the state and I think that they must come higher up the agenda.

We need a layered approach from the courts and from administrative authorities that deal with children. For example, the younger and less mature a child is, the more welfare and development input he or she should get from the state. That really is a point that Ministers should revisit. Even when dealing with an horrendous offence, such as in the Jamie Bulger case—we are getting some terrible cases now with stabbings and gun crime—we should not bow to public pressure and have those children tried in adult courts. We have a youth justice system, and that is what should apply to such cases.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. I say to the hon. Gentleman that I am using my broadest discretion, but he is not really addressing his remarks specifically to the amendment. I would be grateful if he did so.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

The Government have recently made it clear that they will not revisit the age of criminal responsibility. Today we will hear how they respond to the amendments. The point that I want to make is that the welfare and development of the child need to be addressed and not just left. Restorative justice, which was referred to earlier, is a factor in that, as is education, and youth rehabilitation orders include a provision for that. That must come higher up the agenda for children in these circumstances.

I do not want to labour the point. Clearly, as other members of the Committee and I have said, this is not a debate about the age of criminal responsibility and where good and evil start and such matters. However, I urge the Minister to revisit the administrative processes and to put the welfare and development of the child higher up the agenda.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 11:00 am, 23rd October 2007

Good morning, Sir Nicholas. I welcome you to the Committee proper and assure you, on the record, that on all occasions I will regard you as being right. If  I am to be accused of being the school swot, I should get it out of the way immediately. I say to the hon. and learned Member for Harborough that I have nothing against plum-duffs. It is simply that we never had them where I came from.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I will have one sent to you for Christmas.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I look forward to it.

I am grateful to hon. Members for the issues that they have raised. There are important issues, which I hope to help clarify. In amendments Nos. 164 to 166, the hon. Member for Somerton and Frome has raised issues that touch on the age of responsibility and on the question of when and how the order applies. I hope that I can offer him some clarification on those matters.

First, I assure the hon. Gentleman that the youth rehabilitation order will apply only to young people over the age of 10. We have placed that as the age of criminal responsibility. That is not an issue that I will reopen today because it is a wider issue that is beyond the scope of the Bill. However, I accept that the amendments have touched upon it.

The order will apply to individuals over the age of 10. To clarify the points made by the hon. Gentleman, there are a couple of provisions within the order that have a minimum age requirement. If he looks carefully at the unpaid work requirement, he will see that it applies to individuals aged 16 and 17 only. The issue relating to residence—if a place is specified—applies also to age 16 and over. He also mentioned the reference to attendance centre requirements and suggested that that would be available only for those 14 years old and over. That is not the case. The Bill includes a number of bands in respect of minimum and maximum hours that must be spent in an attendance centre. Those bands will vary according to the age of the offender.

In general terms, the order is available for individuals aged 10 and over. That is for one reason in particular: the starting age for the youth rehabilitation order must be similar to other juvenile sentences. It would be inconsistent and lead to confusion for sentencers, offenders and those delivering the requirements of youth rehabilitation orders to have a separate age band for that order. As I have mentioned, we have no intention of changing the age of criminal responsibility, which is currently 10.

For the help of the Committee—this point touches on that raised by my hon. Friend the Member for Leyton and Wanstead—in 2004, the last year for which we have complete figures, over 201,000 offences by 10 to 17-year-olds were dealt with in the criminal justice system. Of those, just over 6,400 were committed by 10 and 11-year-olds. That is about 3 per cent. of the total. I want those individuals who come into the system aged 10 or 11, of which there is only a small percentage, to be dealt with in a way that looks at the welfare of the child and has the prevention of reoffending at its heart. I hope that that reassures my hon. Friend.

We are having some success. Of the 6,400 who came before the courts, approximately 5,500 received a reprimand  or final warning, with just over 800 receiving a court sentence. For the reasons mentioned by the hon. and learned Member for Harborough, it is in everybody’s interests that we capture these young people at an early stage, that we look at what interventions are required to prevent them from reoffending and that we make those interventions. My concern is that they are the potential adult criminals of tomorrow. Given the high levels of reoffending, we must try to have those interventions at a very early stage.

I am also keen that children and young people are not prosecuted and that, wherever possible, an alternative is found. To deal with the point made by my hon. Friend, local multi-agency youth offending teams, with the help of social services and health professionals, will ensure that we identify the needs of these young people and that we put in place help and support, not just for them, but to enable their parents to look at the challenges that they face.

The objective is to prevent reoffending in the first place. Some of the methods might include child welfare departments or child and adolescent mental health services. We need to look at that holistic approach to tackling that offending behaviour through the youth justice system because we must ensure that we prevent reoffending. That is the key to helping to prevent not just crime in our communities, but a wasted life for those young people. I hope that that has helped the hon. Member for Somerton and Frome. I will return to his other points in a moment.

In amendment No. 1, the hon. and learned Member for Harborough asks to remove the words “or before” from subsection (1). I hope that I can reassure him about the reason for their inclusion so that he will not press the amendment. The drafting of clause 1 is consistent with the precedent set by previous legislation and is similar to section 177 of the Criminal Justice Act 2003, as I am sure he is aware, which covers the adult community order, and to other sentencing legislation. Let me explain the purpose behind it.

At present a young person or a child may be convicted by a youth court, which is a form of magistrates court. Alternatively, they may be convicted by a jury in a Crown court. Once convicted by a jury, the young offender comes before the Crown court for sentencing. The current form of words in the Bill provides that whether convicted by a youth court or a Crown court, that court may sentence the child or young person to a youth rehabilitation order. I am not sure whether it was the intention, but the effect of amendment No. 1 would be to remove the ability of the Crown court before which a person is convicted to impose on the young person a youth rehabilitation order. The wording is simply to retain the current flexibility. I hope that that clarifies the point.

Amendment No. 163 would place a maximum time limit of three years on each requirement of a youth rehabilitation order under clause 1. If the intention of the hon. Member for Somerton and Frome is to set an overall three-year limit on the duration of the youth rehabilitation order, I hope he will recognise that the amendment is unnecessary. He rightly pointed to schedule 1, paragraph 31(1), which already imposes such a limit. It states:

“A youth rehabilitation order must specify a date, not more than 3 years after the date on which the order takes effect, by which all the requirements in it must have been complied with.”

The hon. Gentleman asked how that applied and to whom. The hon. and learned Member for Harborough rightly pointed out that the order itself applies to the young offender. It is for him or her to complete the order. The Youth Justice Service must ensure that the requirements can be completed within the three-year maximum and the court can also put an expiry date on the youth rehabilitation order, which is no more than three years hence. But it is ultimately for the individuals themselves to complete that order within three years, under the supervision of the appropriate authorities. I hope that that clarifies the point for the hon. Gentleman.

Photo of David Heath David Heath Shadow Leader of the House of Commons

The Minister of State talks about expiry of the order. I do not think that anything in the Bill talks about the expiry of the order; it talks only about the requirement to complete provisions within it. There is a subtle difference between the two. If he is clear that there is capacity for an expiry date to be set by the court, under what part of the Bill is the provision made?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

We can debate the wording. I am basically telling the hon. Gentleman that the order must be complied with within the three-year period. It is for the individual who has the order against him or her to comply with the order within that period.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I think that the confusion here is whether it amounts to a breach of the order not to comply with it within three years. If the order comes to an end after three years it cannot be a breach of it not to have complied within that time. If the obligation is on the offender to have done the various things in that time, it is a breach not to have completed them.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I hope that I can clear up any confusion that may exist. Youth rehabilitation orders must specify a date not more than three years after the date on which the order takes effect by which time all requirements in the order must be complied with. The requirement for compliance extends to the person against whom the order was made, so it is the offender’s responsibility to complete the order within the three-year time scale, and failure to do so constitutes a breach of the order. I hope that that clarifies the position for the hon. Gentleman.

I want to refer to a further point that was mentioned in the debate, which related to the reports in today’s newspapers. I am happy to respond to that point, provided that it is in order, Sir Nicholas.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

The Minister of State will no doubt ensure that his response is in order.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

During the debate on amendments Nos. 164 to 166, the hon. and learned Member for Harborough mentioned today’s report in The Daily Telegraph which bore the headline:

“Ten-year-olds ‘to punish peer offenders’”.

The Daily Telegraph is not my daily reading, but I take an interest in its jottings.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

It takes an interest in you.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I know. The project in question is a pilot project in Preston which is being run by the National Association for the Care and Resettlement of Offenders and which is for young people who commit low-level crime. Instead of being given a reprimand, the young people are referred to a peer panel, but they must admit guilt in order to be referred. The peer panel discusses the crime and agrees what should constitute an acceptable behaviour contract. If the individuals do not complete the agreed contract, they are sent to the police for further discussion.

The project is not directly within my responsibility, but I shall bring the Committee up to speed on what I know about it. I understand that the funding for the project has come from the challenge fund provided by the Treasury to the extent of some £487,000. If the Committee feels that it will help, I will happily write a note to assist in informing the debate, which if appropriate could be referred to later on wider issues concerning the Bill. I do not wish to mislead the Committee in relation to information that I do not have at my fingertips.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am sure that the Minister of State would never mislead the Committee—at least, not on purpose. Let me ask him whether the scheme—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. We do not want a debate on the matter, which is not directly connected with the amendments that we are debating. I think that the Minister has given a fair reply. If it is appropriate to refer to the matter later in our discussions, I shall be happy for that to happen.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I was simply going to finish the sentence, and ask whether the scheme envisaged under clause 1 and schedule 1 contemplates the sort of thing that has recently been referred to. The Minister of State says that the pilot scheme is not within his responsibility, but I am concerned that there is no strategic overview on youth offending and how to deal with it. If the Bill is designed to address that, I should have thought that ideas such as the pilot would have come before him. The fact that they appear not to be within his remit is confusing.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

If the matter is to be discussed, it would be appropriate to raise it as part of the clause stand part debate, provided that I am in a position to permit it, which depends on how long it takes to scrutinise the amendments.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

Thank you, Sir Nicholas. The provisions of clauses 1 to 5, in part 1 of the Bill, are designed to give a number of opportunities to courts to exercise measures that will not only punish but help prevent reoffending among young people. The project that the hon. and learned Gentleman has mentioned, which was cited not just in The Daily Telegraph but in a number of other journals this morning, is a pilot project by NACRO that is, as I understand it, funded from Government resources.

I will clarify the position, but that project is not directly within my area of responsibility. However, I am happy at least to examine anything that can help to prevent young people from offending again. If we were to undertake some activity in terms of young people themselves and examine what has caused a young person to offend and that is proved by the pilot to help prevent other young people from getting involved in crime, I am happy to consider that activity as part of the wider criminal justice activity.

Photo of Charles Walker Charles Walker Conservative, Broxbourne 11:15 am, 23rd October 2007

This project could be an interesting innovation. It could be useful in helping children to feel empowered and in helping them to learn the difference between right and wrong, and it is just a great shame that our national newspapers have got hold of it and are perhaps distorting what could be an interesting scheme. Perhaps it would have been nice if this project could have been brought before Parliament at an earlier stage.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful to the hon. Gentleman for his supportive comment. As I say, at the moment this scheme is not a scheme for which I am directly responsible, but it is a scheme which I have authorised and I am happy, given our discussions, to reflect upon it in due course. I hope that the hon. Gentleman will pass on that message to the hon. Member for Arundel and South Downs, who, in the same article that I have before me, says:

“Faced with a rising tide of violence, the public deserves proper punishment for young offenders”.

By implication, the hon. Member for Arundel and South Downs does not mean the scheme that is being undertaken in Preston on a pilot basis. So, I hope that the hon. Gentleman will use his immense influence with his Front Bench to ensure that that project receives a fair wind.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Perhaps we could have avoided the anguish if this innovative scheme had been announced to Parliament by the responsible Minister so that it did not come as a surprise to certain people and could have been debated collectively.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

We have gone far enough on that.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As I have said, Sir Nicholas, you are always right and how can I not take that encouragement in the way that it was meant?

If the Committee feels that it will be of help, I will ensure that a letter detailing the pilot project is sent to members of the Committee. As I say, I wish that I could give more information on that project today, but I am not party to it and I would not wish to give information that was not complete to the Committee.

In responding to the debate, I hope that I have provided clarity for the hon. and learned Member for Harborough, the hon. Member for Somerton and Frome, and my hon. Friend the Member for Leyton and Wanstead on the Government’s thinking on these issues, and I also hope that, having given those assurances, the amendments will not be pressed.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I heard what the Minister had to say about amendment No. 1. I am not entirely sure that I am convinced by his response, but I am entirely convinced that I do not need to take the matter further.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I am grateful to the Minister of State, and indeed to other hon. Members who have contributed to the debate. He has given me greater clarity than was provided before and I am grateful for that.

May I also say how pleased I am that the Minister of State is prepared to use the “c” word—children—in respect of 10-year-olds? I got into trouble with one hon. Member on Second Reading for daring to say that some of the people that we were dealing with were children. They are children. They may have behaved badly, they may need punishment, but they are children, and the way that the Minister of State described his intentions was entirely admirable, in that he is trying to deal with the problems these children face and the unacceptable behaviour that they are displaying in an holistic way, if I dare use that word “holistic”. One treats the whole individual and finds the right avenues to help to correct some of the problems that they face, which very often are environmental, or developmental, in terms of the learning environment in which they have lived. Sometimes, their behaviour is as a result of peer pressure of all sorts.

Regarding the scheme that was alluded to, although I think that it is of dubious relevance to my amendments, this much is relevant: it is important to find ways of dealing with offending behaviour that work. That is the crucial thing. It underlines everything that I have to say about penal policy. What works? What actually reduces reoffending? I could not give two hoots for what the newspaper industry thinks about a proposal. What is critical is whether a proposal works to reduce reoffending. It is not an entirely novel process, because it has been explored elsewhere. There is evidence that it works, and that young people are more responsive to the views of their peers, who are certainly no soft touches. Again, that is the evidence on dealing effectively with offending behaviour. If it works, it is a model that we should build on, and that is all.

On my amendments, I am grateful to the Minister for giving a clear indication of the age range for the various elements of the rehabilitation orders. However, there is still a suspicion of doubt in my mind as to whether the Bill is explicit about a three-year expiry, as opposed to the conditions that must be fulfilled within three years. Because some of those orders are very resource intensive, I can see circumstances in which not the individual on whom the order has been placed, but the authorities that have a duty to provide a variety of things to that individual, will be in breach of it. I am not clear what will happen if that is the case.

As the Minister is apparently satisfied that the Bill provides for such circumstances, I will, for the moment, take his assurances as being a sufficient answer, yet it worries me that there is perhaps still an ambiguity that has not been addressed. Having said that, I thank the Minister for the intended helpfulness of his replies and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I beg to move amendment No. 114, in clause 1, page 2, line 5, leave out paragraph (j).

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following: Amendment No. 110, in clause 1, page 2, line 17, leave out paragraph (a).

Amendment No. 115, in clause 1, page 2, line 20, at end insert ‘, or

(c) a youth rehabilitation order with local authority residence (see paragraph 17 of Schedule 1).’.

Amendment No. 111, in clause 1, page 2, line 21, leave out ‘(3)(a) or (b)’ and insert ‘(3)(b)’.

Amendment No. 116, in schedule 1, page 85, leave out lines 15 and 16.

Amendment No. 113, in schedule 1, page 85, line 31, at end insert—

‘Intensive supervision and surveillance orders

2A (1) An intensive supervision and surveillance order must contain the following requirements—

(a) an activity requirement (see paragraphs 6 to 8), in relation to which the court must specify a number of days which is not more than 180;

(b) a supervision requirement (see paragraph 9); and

(c) a curfew requirement, unless the court is satisfied that the requirements of the order will involve sufficient surveillance of the young person without a curfew requirement.

(2) An intensive supervision and surveillance order may also contain any other requirement mentioned in section 1(1).

(3) The total restriction on liberty imposed by an intensive supervision and surveillance order must be proportionate, taking into account—

(a) the severity of the offence and any offences associated with it,

(b) the age, emotional and intellectual maturity of the offender, and

(c) the court’s powers under section [Duty of court to inform the local authority where child at risk of significant harm].’.

Amendment No. 112, in schedule 1, page 85, line 33, leave out paragraph 3.

Amendment No. 117, in schedule 1, page 93, leave out line 10 and insert—

‘Youth rehabilitation order with local authority residence

17 (A1) This paragraph applies where paragraphs (a) to (c) of section 1(4) are satisfied.’.

Amendment No. 118, in schedule 1, page 93, line 30, at end insert

‘and that local authority has agreed to the inclusion of the local authority residence requirement in the youth rehabilitation order.’.

Amendment No. 119, in schedule 1, page 93, line 39, at end insert—

‘(7) A youth rehabilitation order which imposes a local authority residence requirement is referred to in this Part of this Act as a “youth rehabilitation order with local authority residence” (whatever other requirements mentioned in section 1(1) or (2) it imposes).’.

Amendment No. 109, in schedule 1, page 94, line 30, leave out paragraph 19.

New clause 6—Preconditions to imposing a youth rehabilitation order—

‘(1) A court may not make a youth rehabilitation order in respect of an offender unless—

(a) the offender was legally represented at the relevant time in court, or

(b) either of the conditions in subsection (2) is satisfied.

(2) Those conditions are—

(a) that the offender was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service for the purposes of the proceedings but the right was withdrawn because of the offender’s conduct, or

(b) that the offender has been informed of the right to apply for such representation for the purposes of the proceedings and has had the opportunity to do so, but nevertheless refused or failed to apply.

(3) In this section “the relevant time” means the time when the court is considering whether to make that order.’.

New clause 9—Intensive supervision and surveillance order—

‘(1) Where a person aged between 12 and 18 is convicted of an offence, the court by or before which the person is convicted may in accordance with paragraph 2A of Schedule 1 make an intensive supervision and surveillance order.

(2) But a court may only make an intensive supervision and surveillance order if—

(a) the court is dealing with the offender for an offence which is punishable with imprisonment,

(b) the court 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, but for paragraph 2A of Schedule 1, a custodial sentence would be appropriate, and

(c) if the offender was aged under 15 at the time of conviction, the court is of the opinion that the offender is a persistent offender.

(3) Schedule 1 makes further provision about intensive supervision and surveillance orders.

(4) This section is subject to—

(a) sections 148 and 150 of the Criminal Justice Act 2003 (c. 44) (restrictions on community sentences etc.), and

(b) the provisions of Parts 1 and 3 of Schedule 1.’.

New clause 10—Restriction on use of detention and training order—

‘(1) In the Powers of Criminal Courts (Sentencing) Act 2000, after section 100(2)(b), insert—

“(c) in relation to an offence committed after the commencement of section [Intensive supervision and surveillance order] of the Criminal Justice and Immigration Act 2008, unless he has previously received an intensive supervision and surveillance order under that section.”.’.

I call the hon. Member for Somerton and Frome.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I have long determined that getting my constituency right is not easy for many hon. Members. It is Somerton and Frome, pronounced “Froom”; in fact, in Somerset it is pronounced “Vroom”, with a hard “F”. Now that is a challenge to Hansard, which I instantly regret.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

That is the one and only occasion on which I have been wrong.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I concur entirely, Sir Nicholas, as I wish to get the creepiness award as well.

I wish to speak to the large group of proposals standing in my name and that of my hon. Friend the Member for Cambridge. The group is broken down into three main areas of concern. Therefore, I will deal with those three areas in turn, rather than the wording of specific measures in the group.

The first area comprises amendments Nos. 114 to 119, which deal with the local authority residence requirement. As we know, that part of the youth rehabilitation order allows for a range of disposals. One is the intensive fostering requirement, where there are additional provisos before a court can impose it. The other is the specified local authority accommodation, where much more discretion is allowed to the court to use that disposal. That is an anomaly in the context of these amendments. If a child is to be taken away from their family home and, in effect, placed in detention—although I accept that detention is an inappropriate term for fostering, and I hope for much of local authority residence—or in the care of the state in one form or another, it seems appropriate that there ought to be at least some provisos as to the circumstances under which that can be used.

The suggestion in these amendments is first that this disposal should be used only where otherwise a custodial sentence might have been appropriate. That is a proviso that applies as far as the terms of the fostering arrangements are concerned and there seems no obvious reason why it should not apply to the local authority placement. We have established beyond doubt now that this can apply to a child as young as 10. We are dealing with very young children for whom such an enforced move out of the family home can be an intensely traumatic experience.

The second proviso is that the local authority should have some opportunity to consent, rather than simply being consulted, before that residential order is made. The reason for that is twofold. First, the authority must ensure that the appropriate facilities are available for the receipt of the child. Secondly, social services within a local authority should be able to have a strong say-so when it comes to whether that is an appropriate disposal and whether the court is correct in its view. There are already powers within the remit of the local authority to place a child in care without any offence having being created, but that decision is clearly made on the basis of the best interests of the child, which are paramount. That is rather different from an order that is made, one presumes, in the interests not only of the child but of society—in the form of a part of a rehabilitation order. We should consider whether the two disposals that require a change of familial environment for the child should be brought into approximate parity within the context of the Bill.

The second broad area includes new clause 6 and its ancillary amendment No. 109. New clause 6 deals with preconditions to imposing a youth rehabilitation order. In effect, it lifts the present proviso, which is there in relation to an intensive fostering order, to make it apply to youth rehabilitation orders as a whole. That is an important condition: that there is a right of representation before the court. A very wide palette of powers is being given to the court under the youth rehabilitation order. Many of them involve a significant, effective reduction  in freedom of movement and of activity, or impose specific requirements upon the offender. There seems to be a parallel with custodial sentences. It seems odd that there is no right to legal representation for the child in those circumstances.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 11:30 am, 23rd October 2007

For those who practise in the courts, such as myself, I welcome with interest the principle of the extension of legal aid—one would never want to persuade against that. Nevertheless, is there concern about how one would deal with the clause’s approach to replicating adult orders? Presently, legal representation is not available for those orders regarding which the restriction of liberty is not at risk and that therefore fall below the level of the interests of justice test that is necessary to grant legal aid. How will we be able to square that with orders that deal with youth offenders?

Photo of David Heath David Heath Shadow Leader of the House of Commons

There are two things to say. First, we are not dealing with adult orders in this part of the Bill and it would therefore be wrong to extend my comments on the present provisions for offenders. Secondly, there are specific issues relating to children and young people, not only with regard to their legal rights under the conventions, which are arguably at least breached by a lack of representation.

The particular circumstances of a child or youth offender, not only in environmental and parental terms, should be a key part of the consideration that a court applies. For instance, we have considered that the emotional maturity of the child and the consequences of some of the orders should be properly explored by the court. I think that legal representation of the young offender is a key part of a court reaching a proper decision. I have no interest in making more work for lawyers in that area, and I hope that the hon. Gentleman will not be unnecessarily distraught about that view. Because this is an important range of disposals, the court ought to have the opportunity of hearing how the interests of the child might be properly represented before making the order. That can only really happen through legal representation.

The third element—this also applies to adult cases, but it is particularly important in cases involving children—is that if the court makes an inappropriate disposal that encourages a breach inadvertently, or by over-prescription, the sanctions can be ratcheted up to custodial sentences. Therefore, a process is under way from the point when the young person is given a rehabilitation order. That being the case, there ought to be legal representation by right at each of the stages of that process.

I am supported in that view—having gone through the process of evidence-taking sessions, we ought occasionally to refer to the evidence that we are given. On Thursday 18 October, I put that point to Bob Reitemeier, who replied:

“Yes, we feel that that should be put into the Bill, that legal representation should be provided before any YRO is put forward. So we fully support that position.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 96, Q209.]

That seems to me to be an important piece of evidence from the chief executive of the Children’s Society. If we are to make the evidence sessions relevant to our considerations, that ought to be brought into the reckoning at this point. That is the argument for new clause 6 and amendment No. 109.

The third sub-group—amendments Nos. 110 to 113 and new clauses 9 and 10—deals with intensive supervision and surveillance orders. The argument is about hierarchy and whether incorporating the intensive supervision and surveillance order into the general ambit of the rehabilitation order removes from the discretion of the court an important element of hierarchy in sentencing.

The amendments would separate out again the intensive supervision and surveillance order from the general rehabilitation order. That is not to argue against either the rehabilitation order or the intensive supervision order in themselves. We accept that there is a strong argument for intensive supervision and surveillance.

The programme has been narrowly drawn, and I think that it has been used effectively, although there has been concern that sometimes the courts have used it as an alternative to community sentencing, rather than an alternative to a custodial sentence, as was intended. However, the programme does provide for a high level of supervision in the case of an offender when there is an intention of ensuring that they are not put in circumstances where they are likely to reoffend. It was expressly designed as being a last chance saloon—to use a clichÃ(c)—before a custodial sentence; it is the very last disposal that is available. If it is included in the wider remit of the rehabilitation order, the difficulty is that that step will be missing. The YRO becomes the last resort. That, perhaps, forces the court into a position in which it would not otherwise have been.

ISS programmes are good, but they are resource intensive. They will not be appropriate for a large number of offenders before the youth court, and they should be specifically tailored to those who will benefit most from them as a way of keeping them out of prison because prison is not likely to be an effective remedy to the offending behaviour they have exhibited. We feel—we are supported by others—that by incorporating ISS programmes into the youth rehabilitation order, there is a compression of sentencing options that does not allow a court to move up from a YRO to an ISSO to a custodial sentence. Those are three clear steps, each of which are appropriate to particular circumstances.

I will be interested to hear what other members of the Committee and the Minister have to say in response to that argument. I hope that there are some constructive suggestions to make the orders work more effectively.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I begin by recognising the help that we have received from the Standing Committee for Youth Justice, which I think provided the briefing behind which the hon. Member for Somerton and Frome framed his amendments. The standing committee is a membership body that provides a forum for organisations—primarily in the non-statutory sector—working to promote the welfare of children who become engaged in the youth justice system. It advocates a child-focused youth justice  system that promotes the integration of such children into society, thus serving the best interests of the children concerned and the community at large.

The organisations that are members of the standing committee include Barnardo’s, the centre for crime and justice studies at King’s college London, the Children’s Rights Alliance for England, the Commission for Racial Equality, Just For Kids Law, Justice, the National Association for the Care and Resettlement of Offenders, the Association of Youth Offending Team Managers—YOT managers, as they are called—the National Association for Youth Justice, the National Children’s Bureau, the National Children’s Home, the NSPCC, Rainer, Save the Children, an organisation called Soba, the Children’s Society, the Howard League for Penal Reform, the National Youth Agency, the Prince’s Trust and Voice. That is a wide selection of membership bodies. It is important that we pay attention to what those people have to say. As the hon. Gentleman mentioned in quoting Mr. Reitemeier, who gave evidence last week, they have huge experience and things to say that we must pay attention to, especially when we legislate on youth justice.

I broadly agree with some of the concerns that the hon. Gentleman expressed. Where I part from him is on the over-prescriptive approach that would necessarily follow from his new clauses and amendments. I share with him an intense desire to see children kept out of the criminal justice system and to reduce the amount of reoffending that happens in our criminal justice system at all ages. I also share with him a desire to see appropriate laws passed that give all public agencies an input. Such agencies include the courts, but outside the courts I would include social services, education services, health services, the charitable sector and any number of other motivated and sensible groups and people. I share with him and them a desire to produce a system that makes our country more civilised and not only a safer place to bring up children, but a safer place in which children can grow up.

I sometimes worry that politicians are influenced and bashed around and buffeted by this or that fad, or this or that pressure group with a particular axe to grind, and that that leads us to come up with solutions that sound and look attractive during the immediate review of the issue, but that fail when they are played out over the longer term. That is what concerns me about some aspects of the Bill, which is why I applaud the way in which the hon. Gentleman introduced his amendments. While they might or might not get on to the statute book, they reveal issues that we should carefully consider.

The hon. Gentleman identified three areas of concern or debate: the local government residence requirement, which includes intensive fostering; the issue of specified local authority accommodation; and intensive supervision and surveillance orders. Yesterday morning I was sitting as a recorder in a court not far from here and I had in front of me a young man who was 17, but was 16 when he committed the offence for which he pleaded guilty. He and another young man who has never been found mugged a man at a bus stop at about 1 am. During the mugging, in which they stole the victim’s laptop and briefcase, the other young man brandished an imitation firearm. It is not hard to understand the fear and state of mind of the victim of  this hideous crime. He was not available to give an impact statement, but, none the less, it does not take much imagination to work out how he must have felt that morning in October when he was attacked.

When the young man pleaded guilty in court in July, I remanded him in custody pending pre-sentence reports. He was kept in Feltham young offenders institution until yesterday, when he was brought before me for sentencing. I could see that this individual, who was on the cusp of adulthood, was, to all intents and purposes, a large child—a very silly and badly behaved child. It struck me that to keep him in Feltham would do more harm than good. I made it clear that the public expected people such as him to be punished severely, and it required some explanation to those listening to the sentencing process to make them understand why I thought it inappropriate to return this young man to custody, not least when the Court of Appeal, the sentencing guidelines and other case law suggested that it would not have been unjust or overly harsh to give this 17 year-old a custodial sentence of at least 15 months.

It struck me that the ISSP, the intensive supervision and surveillance programme, was an apt way to deal with this particular individual. I was grateful that the sentencing structure allowed me that discretion. It is important that sentencers should be able to sentence a person using the facts of the case and the circumstances surrounding the offence, and that includes the impact on the victim. Although I did not have an impact assessment from the victim, I was satisfied that, if I had had no discretion to give an ISSP but had been required to send this boy to prison, it would have been a mistake.

That defendant may let me down and reoffend. He may disobey the instructions of the probation service officers who are going to be looking after him for the next few years. Every now and then, however, I think that it is appropriate for sentencers to take a risk. It is entirely appropriate that the courts should be given discretion. That is why I, to some extent, applaud what the hon. Gentleman has said and also why I do not wish us to pass overly prescriptive legislation about the way that sentences have to be passed. Each case is different, albeit that most cases have many similar facets.

I agree with the hon. Gentleman that, if we are to take children away from their families, we need to understand that the state is the worst possible parent. I mentioned on Second Reading and during last week’s evidence sessions in Portcullis House, that 27 per cent. of people in custody have been in care. I have scarred on my mind the Beck inquiry into Leicestershire social services’ handling of children’s homes. A man called Beck, who is now dead, was eventually arrested and convicted of huge numbers of offences against children, including sexual and other abuse. Many of the abused children who were in his care in the 1960s and 1970s ended up committing crime themselves and some of them, certainly at the time evidence was being given to the inquiry, were in prison.

It is hugely important to bear it in mind that it is not ideal to take children away from their natural parents and families and place them in state care. It does not always work out best for the children. Therefore, if young people are in front of the criminal justice system and the courts are provided with the weapon, or process, to take them away from their natural families and place them in local government or other state care, it is important that the decision maker is given the best, most up-to-date and appropriate information about the individuals concerned.

Whether that comes from legal representation or some other source within the youth justice system does not much matter. However, somebody who is trained, experienced and who understands the difficulties that are often associated with this sort of defendant, must be available to give youth courts and Crown courts the best information about the circumstances of the child or young person in front of them. That would include the family and education circumstances of the individual, whether they go to school, what their history is, and some understanding of their psychological make-up.

I return to the example of the boy in front of me yesterday. The individual in front of the court may look like a young man: he may have started shaving and be six foot two, but inside there may be a thoroughly immature mind. I do not know if the Minister has recently visited Feltham or any other young offender institution, but he will know, as I do, that there are plenty of people in the 18 to 21-year-old custodial estate who may look physically mature, but who are mentally children. Equally, there will be 14, 15 and 16-year-olds who are both physically and mentally mature beyond their years.

If end-to-end management and humane and sensible sentencing are to mean anything, the courts must know more about the individual and not treat people as categories of person. If that means representation of the sort that I have described, as opposed to the narrow, legal representation which was, for all sorts of good reasons, described by the hon. Gentleman, then I applaud that move.

Of course that has immense resource implications. The legal aid budget is under tremendous strain and giving state money to lawyers is an easy thing to criticise. As a lawyer——my hon. Friend the Member for Enfield, Southgate is in the same position——it is difficult for us as legislators to stand up and say that we should give more money to lawyers. However, if one can step outside that narrow and obvious criticism about the vested interests of what we would describe as a noble and decent profession, then we must understand that justice costs money. It is not something that can be got on the cheap.

Photo of David Heath David Heath Shadow Leader of the House of Commons 11:45 am, 23rd October 2007

I am grateful to the hon. and learned Gentleman for giving way. As a non-lawyer, I have no difficulty in saying that legal aid is one of the essential elements of the welfare state and one of the greatest achievements of the Attlee Government.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am grateful to the hon. Gentleman for saying that, as that is the argument that I put forward in debating the misnamed Access to Justice Act 1999.  In those days, I was the shadow Minister at the Lord Chancellor’s Department. How things have changed. My opposite number, the Parliamentary Under-Secretary in the Lord Chancellor’s Department, was the current Government Chief Whip. He has moved around a few times since then. I was interested, but certainly not amused, to find myself arguing in favour of Attlee’s reforms that are now being destroyed by a Labour Government. I said to the right hon. Member for Ashfield (Mr. Hoon) that Attlee must be spinning in his grave because they were dismantling a hugely important part of the welfare state.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I appreciate that the hon. and learned Gentleman’s speech was both eloquent and informed, and thus useful to the Committee, but he will know from our evidence-taking sessions that what was being argued for was diversion and pre-court processes so, if the matter comes to the court, that stage will almost be a rubber stamp. Youth professionals would have reached an agreement on how to deal with the youngster. In those circumstances, surely there is no need for legal or major representation of one form or another for the youngster. Can he put the diversionary approach into such a context, because it should have priority?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

It is not a matter of being exclusive. Of course, diversion is hugely important. As I said, I want young people to be diverted away from criminal activity whether they are under or over the age of 10. That is not controversial. Nor, I hope, is what I am saying now. I am talking about how we describe the court’s ability to do things. It can do something better if it has good information. The information does not necessarily have to be of a strictly legal representative sort. For my purposes, if a responsible person could speak for the young person and present to the court the fullest range of information about the child, the offence and the victim, as well as about the remedies and how the offence could be dealt with, the court would be better informed and could make a more intelligent judgment about what to do. Clearly, Parliament must set the ambit of the sentencing powers of a court, but I do not want it to be stuck into the nitty-gritty of saying, “If the following 15 sets of circumstances arise, you must only do the following.”

I want magistrates to have the freedom, as I like to think that I had yesterday, to match the sentence that is appropriate to the circumstances of the individual case, but they can do that only on the basis of the best possible information. Such information need not just come from a lawyer, but from some other person who can speak. The Latin phrase doli incapax has been mentioned, but “amicus” is the Latin word for “friend”. There is a system whereby people have McKenzie friends or the courts asked for an amicus to advise it. I am looking for a fund of knowledge to inform the court so that it can make a sensible decision.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Is not another response to the point made by the hon. Member for Leyton and Wanstead that, with the best will in the world, the pre-court processes and the discussions between professionals will not always work? They will not always be perfect in respect of the information on which they have acted or  in the conclusions that are reached. There is still a role for the court at the end of the process to make decisions. It is the court that makes the final decision, not the professionals and, for that, the young person needs some representation.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 12:00 pm, 23rd October 2007

Again, I do not disagree with the hon. Gentleman. I am trying to create within a legislative framework a mechanism by which the court can make sensible decisions. I am in danger of repeating myself. While I always welcome interventions from people who know a lot about the subject, or, indeed, from those who do not, we seem to have a well-meaning set of clauses, introduced by a Government who no doubt want to do good in this aspect of public policy, but which are not necessarily apt to achieve the end that we all want. Clearly, the Government have been doing a lot of thinking. One only has to look at the amendment paper to see the huge number of Government amendments designed to perfect an imperfect Bill. I hope that they will think about what is going on and ask themselves whether what they have so far put into the Bill is the best way of achieving their objectives.

I do not need to say any more. I hope that I have made the points that I want to get across to the Committee. I certainly shall not chase these amendments to a Division, even if the hon. Gentleman were to press them. They are almost too important for a binary discussion and an argument that is entirely plus or minus. There are lots of things in the Bill that probably will work and lots that probably will not. I simply congratulate the Standing Committee for Youth Justice, and the hon. Gentleman who has used its briefing to start this line of debate, for bringing the matter to a marginally public forum in this Standing Committee.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I am sure that the Committee is grateful to the hon. and learned Gentleman for his succinct contribution. May I ask members of the Committee whether they feel that the room is warm enough? [Hon. Members: “It is positively arctic.”] May I tell my Clerk that I hope that between the end of this sitting and the afternoon sitting the authorities will be approached, not only to replace two bulbs in the lights above, but to ensure that the room is a little warmer.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

I listened with great interest to the debate, particularly that on intensive fostering, which I feel should be a call of last resort. Like most hon. Members, I believe that all children are born good and some turn bad, often through no fault of their own. Intensive fostering is almost the wrong way round. Many children who find themselves on the wrong side of the law come from very difficult homes. They come from what could be called dysfunctional families, where the adults put their needs before those of their children. One could argue that in many cases these children have largely uninterested parents.

It worries me that children as young as 10 will be made to pay the price for their parents’ failings. They will be plucked from a home that may have given them very little support, direction, love and care and sent into intensive fostering. It may well be that for the first time  in their lives they will be in homes where they are the centre and their welfare and needs are put first. But when this period of intensive fostering is over, they will be returned to the same dysfunctional environment they came from, where the problems of drug and alcohol abuse, lack of proper nutrition and so on still exist.

I hope that in debating this, and when the Minister goes away to think about it, that as well as focusing on the child, we will focus on the background and the home that they have come from to ensure that those responsible for creating the child, and who I believe are largely responsible for the problems that the child is experiencing and bringing to society, are given the support, instruction and guidance that they need to become people who are fit to raise and care for the next generation. Unless we do that, I fear that this legislation will be a mere sticking plaster and that for decades to come we will have children who start off good—all children start off good—and, due to their family circumstances and through no fault of their own, are turned bad.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful to hon. Members for their contributions and their amendments. There are two sets of issues. The first relates to the use and type of order and whether to deal with the intensive supervision and surveillance order in a different way. The second aspect of the debate relates to the forming of legal representation. I will start with legal representation because I hope that that is the area where it is simplest to come to some consensus.

The existing arrangements for the provision of legal representation provide sufficient safeguards for young defendants. Although I understand the motivation behind amendment No. 109 and new clause 6, I do not believe that they are necessary. I hope that ultimately I will be able to show the hon. Member for Somerton and Frome that that is the case. The hon. and learned Member for Harborough also touched on this issue and helpfully reminded us of the Access to Justice Act 1999, which was taken through this House by my right hon. Friend the Member for Ashfield (Mr. Hoon), the current Government Chief Whip. Unlike you, Sir Nicholas, he is right on all occasions.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

Just for the record, my hon. Friend the Member for Tooting (Mr. Khan) concurred with that assessment.

Hon. Members will recall—particularly the hon. and learned Member for Harborough—that the 1999 Act ensured that all defendants must satisfy what was called the interest of justice test to qualify for publicly funded representation. The Act set down a number of criteria for the court to take into account in deciding on that. Among other factors was whether the defendant may, for example,

“suffer serious damage to his reputation” and whether the charge is punishable with imprisonment. Under that Act, the court must also give consideration to whether the defendant is of a young age and to the defendant’s ability to understand the proceedings or state their own case.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Under the Access to Justice Act 1999, the issue is not so much whether the defendant is likely to receive a sentence of imprisonment, but whether their liberty is at risk. It is that issue that is of crucial significance in relation to the youth rehabilitation orders. It can be argued that in certain of those orders their liberty is being deprived and that the interest of justice then merits legal representation.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

Again, the condition in the 1999 Act is whether the charge is punishable with imprisonment. I believe that it sets out the criteria for the potential for publicly funded representation.

As I was saying, since 2 October 2006, defendants appearing before magistrates courts and youth courts have also been required to pass the financial eligibility test to qualify for publicly funded representation. From 1 November 2007, all defendants under the age of 18 will be passported through that means test. That announcement has been welcomed by professionals, the judiciary and the Law Society. I take the view that whatever our arguments around the question of publicly funded support, under the 1999 Act and the amendments to it, from 1 November, there will be sufficient safeguards to ensure that those individuals who require publicly funded support will get it. Irrespective of our views on that, the blanket assessment of public funding for all young people proposed by the hon. Member for Somerton and Frome would not only have wide consequences for the legal aid budget, but set precedents for other aspects and effectively undo the Access to Justice Act.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Perhaps what the Minister of State is saying will provide the basis of some sort of later compromise. It is a technicality to talk about imprisonment, because certain combinations of the orders would amount to quite a serious deprivation of liberty. Combining requirements in relation to prohibited activities, exclusion, curfew, and, crucially, residence, is a pretty severe restriction on liberty. On the other hand, what the Minister of State has said about other sorts of order might well be true, in that they might not require any sort of serious consideration or legal representation. That might be a way forward.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As ever, I am always happy to reflect on what has been said in Committee; I am simply giving my current assessment and judgment. Schedule 1, paragraph 19, requires young offenders to have received or had the opportunity to receive legal representation before a youth order or a local authority residence or fostering requirement is made. That is stipulated because the requirement will enforce residence away from the family home. It provides a safeguard in such cases.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

That is precisely the point that we are trying to make. There are circumstances in the Bill in which legal representation is required. The Government have made the opposite judgment in the present instance to that which they have made in relation to other sorts of order. We suggest that the Government think about the dividing line between the types of case, and whether they have drawn the line in the right place.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I thank the hon. Gentleman for that comment.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I am willing to accept that the Chairman is always right, Sir Nicholas, but I am not willing to accept that the Minister of State is always right—certainly not in relation to the access to justice provisions. I should particularly like clarification on whether we are indeed concerned only with risk of imprisonment rather than deprivation of liberty because, if so, that would preclude many adults and young people from entitlements that they currently have.

On resources, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird) indicated that, given the amount of legislation that has affected the legal aid budget, an impact statement would be made in relation to budget implications of further legislation. Schedule 1, paragraph 19, provides for legal representation when there is a requirement for local authority residence or fostering, so has there been an assessment of whether the hard-pressed legal aid budget will be pressed further in relation to that provision? There is a case for that, obviously. In addition, does not the new generic order necessitate guidance for courts and practitioners on when legal aid should be available?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am happy to reflect on the points made by the hon. Gentleman on the interpretation of the 1999 Act. From my perspective, that Act concerns situations that are punishable by imprisonment, but that will be checked, and I shall reflect and clarify if necessary.

To each of the hon. Member for Cambridge, the hon. Member for Enfield, Southgate, the hon. Member for Somerton and Frome, who originally proposed the amendment, and the hon. and learned Member for Harborough, I say that we have had to try to make a judgment. We have drawn the line where we have drawn it. Legal representation will be available in relation to local authority and residential requirements. The position under the 1999 Act remains the same. On the basis that I shall reflect on our debate, I hope that the amendment will be withdrawn.

Photo of David Heath David Heath Shadow Leader of the House of Commons

Will the Minister of State reflect specifically on whether the provisions meet article 6 of the European convention on human rights, because at present I am not convinced?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 12:15 pm, 23rd October 2007

I shall reflect both on the points that have been made about where the lines are drawn and about compatibility with human rights legislation. Just for the record, my understanding is that the Bill is compatible. However, outside of this Committee sitting, I will examine those issues with colleagues.

We have made a judgment on where we draw the line in terms of legal representation. I cannot accept the amendments that the hon. Member for Somerton and Frome has tabled today. As ever, I will certainly reflect on what has been said in the Committee, because it is my duty as a Minister to do so. However, I would urge the hon. Gentleman not to press the amendments.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

It is very good that my right hon. Friend is going to reflect on these issues. Will he also pick up the point that was made about a friend, such as a McKenzie friend, being in the court if need be?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The McKenzie friend principle is a sound one, and again I will examine that matter outside the Committee today. I am grateful to my hon. Friend for raising that issue.

I simply say to hon. Members who have raised the question of funding that the position that I have outlined with the access to justice regulations, along with the comments that I have made on subsequent changes in October 2006 and from 1 November 2007, provide the basis on which we have made the judgment. Therefore, I would ask the hon. Member for Somerton and Frome not to press the amendments in relation to those particular areas.

The other aspect of the debate concerned the nature of the youth rehabilitation order. Once again, from my perspective I hope that I have been clear, in Committee, on Second Reading and in evidence sessions, that we believe that the YRO offers courts a robust community sentence. We want courts to think long and hard before they send a young person to custody, for the very reasons that my hon. Friend the Member for Leyton and Wanstead has discussed in the past, as indeed the hon. Member for Broxbourne has discussed in his contribution today. We wish to ensure that custody is the last resort, which is why we have included reserved intensive supervision and surveillance and intensive fostering orders as the final hurdle before custody.

It is important to note that, when we have been developing these programmes, they have been specifically designed to deal with young people whose offending is so serious that they would have received a custodial sentence but for the existence of the particular high intensity programmes.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Will my right hon. Friend clarify—he might do so in writing—whether the intensive foster parents will be managed by the Ministry of Justice or by the local authority, and how will the funding arrangements work, because those places are horrifically expensive and also very hard to find? It would be helpful to have that matter clarified, if not now, then afterwards.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The intensive fostering, which I will come on to in a moment, will be organised and managed by the Youth Justice Board, who will be responsible for that element of any potential order that is agreed in due course.

What we have been trying to do is use the YRO with intensive supervision and surveillance, which will provide a very stringent and difficult order for individuals to undertake. It will involve at least 25 hours a week of purposeful activity, directly addressing offending behaviour. It will include a curfew, usually with electronic monitoring organising that curfew. Our objective is that it will provide an alternative to custody, but for those individuals who are at very serious risk of entering custody. The idea is to ensure that, within the youth order that we have before us, we have that separate requirement accordingly.

Photo of Nick Hurd Nick Hurd Conservative, Ruislip - Northwood

Will the Minister confirm that intensive supervision and surveillance arrangements are already in place? Also, will he enlighten the Committee as to what levels of reoffending arise from those existing orders, and perhaps also enlighten the Committee as to why those orders will make any difference?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As was mentioned earlier, the level of reoffending for those individuals who enter the youth justice system is extremely high. I do not have particular figures in front of me at the moment about those orders, as they are currently operated, but they do exist already. If the opportunity arises, I will give the hon. Gentleman those particular figures in due course.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

When my right hon. Friend presents the Committee with those figures—not just the hon. Member for Ruislip-Northwood, I hope—will he look at the estimated figures of those who need that last resort before custody of intensive supervision? Will he also look at the number of such foster carers, so that we can see that there are sufficient to meet the estimated need? When he presents those figures, will he include us?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I refer again to the figures for 2004. In that year, as a general figure, over 201,000 10 to 17-year-olds were dealt with by the criminal justice system. Within that, there were a number of different aspects of order: reprimands, final warnings, prosecutions; but over 200,000 young people came into the criminal justice system in the last year for which figures are available. That is a significant number of young people going through the youth justice system in one form or another.

My objective is to reduce that number, to prevent those who are in the system from reoffending, and to find effective means to have strong interventions with the family and individuals by looking at the range of options available under the youth rehabilitation order, and, in order to prevent final custody, to have intensive supervision and surveillance and intensive fostering as the final hurdle.

In response to the intervention from the hon. Member for Ruislip-Northwood, the aim of the intensive supervision and surveillance programme is to reduce the frequency and seriousness of subsequent offending among persistent offenders. I have some figures, thankfully, that will help to indicate some of the impact of that. Youth Justice Board research indicates that the frequency of offending in the intensive supervision and surveillance sample declined by 39 per cent. over a two-year period, which shows that the impact of the ISSOs has been quite significant in the past.

In relation to the proposals, the reason that I do not share the views of the colleagues who have brought forward the amendments today is that we are trying to ensure that we have a youth rehabilitation order with intensive supervision—meaningful, difficult operational activity within that; purposeful activity, electronic curfew monitoring—because that will be an opportunity to reduce the level of potential reoffending and will not lead to custody, as it could do if incorporated in the main order.

Intensive fostering is an intensive programme of work, with specially trained foster carers working to a Youth Justice Board specific programme model, with constant support. Again, the programme is designed specifically to provide high intensity care for young offenders for a specified period, up to 12 months, and also includes work with the young person’s family, which is important in terms of what both the hon. Member for Broxbourne and my hon. Friend the Member for Leyton and Wanstead said. That is important because, whatever we do with an order, if individuals return at the end of it and are sucked back into an atmosphere that has possibly helped to create some of the offending behaviour issues in the first place, that is not a way to help prevent reoffending. In that age old phrase, we need to look at the causes of crime as well as crime itself. The purpose of the fostering order is to ensure that we work not with only the young person but also with their family, to look at whether there are interventions that might help prevent reoffending.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

It is very easy for us to misunderstand, because this is quite a complex area. I wonder whether it was merely a slip of the tongue, but I thought that my hon. Friend referred to fostering being organised by the Youth Justice Board. Surely it would be organised by the youth justice teams at a local level, would it not?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The intention is that we organise it via the Youth Justice Board and that it will commission work from youth justice teams at a local level as well. The Youth Justice Board retains overall responsibility for the exercise and funding of the programme, and for commissioning and monitoring standards. Those are the board’s responsibilities within the programme.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

If my right hon. Friend is referring to the setting of standards, clearly that must be done at a national level by the board. However, the organisation of fostering activity—perhaps we are arguing about words without a difference—has to be done at a local level, not at a regional or national level.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The overall work of the Youth Justice Board is to specify and monitor the standards that are undertaken, to work with the commissioning network, and to work with local authorities and others that are delivering a fostering service on the ground. I hope that that is clear for my right hon. Friend

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Just briefly, will the Minister describe—if he does not have such information to hand, perhaps he will send me a note—the type of environment in which such fostering will take place because some youngsters are very troubled and difficult. Will it be a normal or secure fostering environment? Will there be extra security or will the home be as normal as possible?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

My objective is for the individuals to have as normal a life as possible and to have that intensive work done by the foster carers who are allocated by the Youth Justice Board with the local  fostering network. We want to lift individuals out of the problem areas which, the court has deemed, has led to some of their offending behaviour. We are putting the individuals into foster care with intensive support. We are potentially doing extra work with their family for when they return home. The whole purpose is to improve behaviour by adding some of the things that may have been missing in their life before, such as love, care, attention, interest, aspiration, role models and leadership—all the things that foster care can provide for those young people. We are trying to ensure that we have a great deal of support to prevent reoffending.

The local authority residence requirement, the subject of the amendments tabled by the hon. Member for Somerton and Frome, does not offer this level of restriction and intensive work to address often entrenched behaviour.

Under amendment No. 114, elevating the local authority requirement to an alternative would risk, in my view, undermining core and public confidence in the youth rehabilitation order because of that very lack of intensity. The purpose of the local authority residence requirement is to impose stability on a young offender who will be living in accommodation provided by or on behalf of the local authority. It is not intended to address more serious offending, nor was it ever intended to do so. For that reason, I cannot accept amendment No. 114. With regard to amendment No. 116—

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Will my right hon. Friend provide a practical note of how that requirement will work? Issues that need to be addressed include the pressure on resources and how all of this is to be managed. In the interests of us seeing it through once the legislation is in operation, it would be helpful to have a practical note telling us how it will work and how the financing and procurement will work.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As with all of these matters, the youth reoffending order and all its elements are under the jurisdiction of the Youth Justice Board. In all of these matters, the Youth Justice Board will, as we mentioned in a previous discussion, set the standards, look at resource elements accordingly and work with the deliverers of those services to provide appropriate support.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

I would like to impress the point. I had to deal with such a person when I was a council leader. It took six social workers and 24-hour supervision to try to keep one difficult person out of custody. The girl lived in a specially adapted house, which she wrecked, costing another £100,000. That was way back in the early 1990s, so goodness knows what the cost would be now. It is really important that such implications are addressed by the local authorities and the people providing the care. The measures are really important, but there are practicalities to consider.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I appreciate and understand the points that my hon. Friend makes. Obviously, issues need to be addressed once the legislation has been agreed.

David Howarth rose—

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

If the hon. Gentleman will allow me, I will try to finish my point.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 12:30 pm, 23rd October 2007

I thank the Minister. I felt that he was moving on to a different point. Will he clarify the precise purpose of the local authority residence requirement, given what the hon. Member for Northampton, North described, which is the experience of many in local government? Often, putting people into local authority care is far more expensive than people on the outside think. If that expense is not undertaken, little of any good happens to the young person. What do the Government intend these orders to do? Will he give examples of the kinds of cases envisaged?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I hope that this will help the hon. Gentleman. When a court seeks a residential requirement, it must primarily take into account the immediate living conditions of the young person. If they are such that they may be the cause of the offending behaviour, the court may well determine that it is appropriate to look at an alternative living condition for that young person. That may be fostering and an important element may be to place an individual with a family because it is the most appropriate source of alternative residential accommodation. Equally, because of the offending behaviour, the nature of the individual’s offence or the danger of the individual to the community at large, consideration may be given to local authority residential care.

The key to this is making an assessment, with pre-sentence reports being undertaken, as to what is the best way to ensure that the offending behaviour is challenged. Residential accommodation might be necessary because the individual’s home circumstances are a contributory factor to that offending behaviour. I could go through a string of potential scenarios. The key thing is that the assessment is made that removal from the current residential requirement and transfer into an alternative residential requirement is needed, be that fostering or residential local authority services. The purpose of the order would be simply to ensure that the young person has an alternative form of residence that will help them to address their offending behaviour.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

The concern is deliverability, as well as clarity on the issues. In the letter that has been circulated to members of the Committee, the only direct costs arising from provisions in part 1 of the Bill to have been identified are the one-off training costs of £600,000. There is a concern about the resources that will be required as a result of the order. Will it be local authority resources and by implication local authority residence, which we all know from our own experience is very thin on the ground? Will the order make it clear that it is a local authority direction in respect of accommodation? It does not have to be the resource of the local authority. As in the case of bail conditions, perhaps the local authority will direct that accommodation is provided by the father or the mother. It may well be that kind of order that is meant. We need clarity on this before we proceed much further down the road of legislation.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As stated in the letter that I circulated to the Committee, and as I mentioned when I gave evidence to the Committee, there is on the overall  youth rehabilitation order and its compliant parts, a training requirement of just over £600,000, which will be included in the legislation. The order itself, and the orders on residential accommodation and fostering, are part of the existing system of youth offending work. I am bringing together under the new youth rehabilitation order a range of existing provisions with some additional new requirements. The provision and funding that are currently in place will still apply for the new orders. I do not have to hand a figure for the cost to date on a global basis in England and Wales, but we are already using fostering and residential accommodation for young people. The new order brings together the one generic order with some new additions that we will discuss later in the Bill. That resource element is already in place.

I move briefly to the points made by the Standing Committee on Youth Justice. Much like the Standing Committee, I also expressed a wish to see a reduction in the use of custody for young people. I welcome both the Standing Committee’s contribution and the evidence given by the Children’s Society during its witness session. Both groups wish to remove intensive supervision and surveillance programmes from the YRO, and create a new intensive supervision order that will sit above the YRO.

I am not persuaded that that is an appropriate way forward or that we need a separate intensive supervision and surveillance order. The current drafting of the Bill clearly establishes an ISS order as the last step before custody. That will be clear to practitioners and the courts, and in due course will be underpinned by guidance. We have deliberately drafted the ISS order separately from other requirements within the YRO as can be seen in clause 1(4). The legislation reflects the higher level of intensity of these requirements, and it is an important step in preventing individuals from going into custody and will be clear for both the courts.

The Bill shows a clear difference between a normal youth rehabilitation order and one with ISS. I again refer hon. Members to subsection (4) in which the criteria for the offence are set out. The offence must be imprisonable and so serious that only custody would be appropriate. If the offender is under the age of 15, the court must be of the opinion that they are a persistent offender.

Moving that into a separate section would not affect that measure and I hope that the hon. Member for Somerton and Frome will withdraw his amendment. I understand and appreciate the reasons why he tabled it, but, on finance I believe that provision is already there. I will however reflect on what has been said in Committee.

With regard to the orders in the Bill, we have clearly set out how we can handle residential, fostering and intensive support. From the Government’s perspective, that is done in order to prevent reoffending, and I ask the hon. Gentleman to withdraw his amendment.

Photo of David Heath David Heath Shadow Leader of the House of Commons

In light of earlier housekeeping remarks, can I say that as a countryman, I do not find it too cold in here, unlike my thin-skinned colleague. However, I  am very concerned about the Government Benches being dimmer than they need to be, and I hope that will be rectified.

We have had an interesting and important debate. This is one of those pleasant occasions where the entire Committee is united around an intention and seeking the best outcome. We have had some well-informed comments and we are beginning to tease out some of the issues about the precise drafting of the legislation.

I am grateful to the Minister for his response to my amendments, but I am not entirely persuaded. Let me deal first with legal representation. I accept that there are circumstances in which a youth rehabilitation order could be framed in such terms so as not to introduce a substantial reduction in liberty. In such cases, it may be argued that legal representation is not required. However, there are undoubtedly circumstances in which YROs represent a significant reduction in the liberty of the offender.

Later in his comments, the Minister was at pains to emphasise how much the intensive supervision and surveillance orders represented an alternative to custody that put a heavy burden upon the offender in meeting the requirements. It seems to be impossible to reconcile the two views that this matter is so unimportant that it does not require representation, but at the same time so burdensome that it would be an effective sanction. I think that the truth probably lies somewhere between the two. However, it is important as far as the individual is concerned and as far as the court is concerned. The hon. and learned Member for Harborough made the point that it is important for the court to understand the full circumstances of the case.

One other point that we have not yet addressed is that it is important that an offender who is in receipt of a YRO fully understands the implications of that, because otherwise, as sure as eggs is eggs, they will be in breach and will move inexorably towards a custodial sentence. For all those reasons, it is entirely appropriate that someone can represent that person at the point when a YRO is made. We need to look further at that, not only because the reasons put forward merit it, but because I am prepared to look at whether a narrowing of the scope of our amendments would be satisfactory to the Government, while still allowing, in the circumstances where a substantial sentence is imposed with a large number of requirements, an opportunity for the offender’s case to be properly heard, their circumstances to be properly exposed to the court and the consequences of the order fully explained to that individual. It is a matter that we may have to return to.

In the case of the residential requirement, it is a misfortune for the Minister that several people who have taken senior roles in local government happen to be dotted around the Committee and are only too well aware of the consequences of such an order for local authorities and social services departments. His responses to his hon. Friend the Member for Northampton, North were utterly unconvincing in allaying the fears of some members of the Committee that this will end up with a substantial financial resource burden upon local authorities that will not be met by the Youth Justice Board or his Department.

I was trying to point out the implications, in any case, of local authority placement. I am not referring to the intensive fostering—we had a discussion about  that and I think that we all understand it. There is a difficulty with the lesser placement envisioned in the Bill, which provides for a person to be taken away from their family home to a place of stability, as the Minister put it, on the ground that that environment is part of the circumstances that encouraged them to offend. I wish that I could be persuaded that every local authority home was a place of stability that did not encourage offending. In some cases, of course, that is the case, but we all know that the incidence of youth offending for those in care is sadly far too high, and that is a concern in itself.

I did not hear from the Minister the argument that that will be done in the interests of the child or young offender, in which case it could be done outside the criminal justice context. There are good arguments for taking people out of dangerous environments that cause them harm, but that has nothing to do with a criminal sentence. If the view is that that is generally part of the sentence, I would want there to be provisos in its use, because it will effectively take someone out of their family home as part of a punishment regime. There is a distinction between the two and I am not entirely convinced that I have heard from Ministers what that distinction is, what the circumstances are in which they envisage this sort of order being applied or where the resources will come from to ensure that such orders are a success. That is one reason why I suggested that it might be a good idea to have the agreement of the local authority in advance, so as to ensure that a proper and appropriate placement can be made. We will return to this matter in a later group of amendments, so I do not need to take it further.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

What does the hon. Gentleman envisage would be the situation in which a local authority would say that an appropriate placement could not be made?

Photo of David Heath David Heath Shadow Leader of the House of Commons 12:45 pm, 23rd October 2007

That is a very good question and one best put to the Minister. If we have that situation, how is the court to provide for a proper disposal? It could be argued that under other legislation, such as the Children Act 2004, the local authority has a duty to provide for it. In that case, it is because it is in the interests of the child and for the prevention of harm to the child, not as part of a criminal justice sanction. That is the distinction that I am making. It is not clear that the duty falls on the local authority to make this provision under circumstances in which the duty of care does not apply. If it is to be conceived of as a duty, I think that there has to be some statutory backing for it and that is not currently in the Bill.

Last, I move to intensive supervision and surveillance orders. Again, the differences that we have with the Government are not substantial because we support the existence of such orders as a last resort. What the Minister did not tell the Committee is why the view of the Government has changed since 2004 when they brought in the orders with a very broad consensus that it was an essential level in the hierarchy. It was very clear that it should be a separate disposal for the court: one that would be used only as an alternative to a custodial sentence and not in other circumstances. It was clear that it would be the last  point that the offender could come before the court without a custodial sentence being applied.

The argument in 2004 was about the separate nature of the ISSP. That distinction was an important ingredient in its nature and its potential success. Now, the Minister’s argument is that it can be subsumed within this wider category. Although it is described separately within the legislation, it nevertheless forms part of a broader youth rehabilitation order and he argues that we do not need that separate rung in the hierarchy of disposals. If the Government have changed their mind, they are perfectly entitled to do so, but they should explain why their reasoning is now so very different from three years ago and why it is so much at odds with the very broad range of interests that the hon. and learned Member for Harborough described in terms of the provenance of some of the proposals before us.

There is one further point. I do not want to overstate this, but article 37 of the United Nations convention on the rights of the child comes into play here. Are the Government honouring what they signed up to in those conventions about ensuring that custody is genuinely a last resort? There is a strong argument that having an ISS order as a separate level of remedy for the courts provides for the United Kingdom to be in accordance with the convention duty, and that without it, it is not. I would be grateful if the Minister would advise me at some later stage. I asked him earlier to look at the provisions of the human rights convention; I now ask him to look at the UN convention on the rights of the child to see whether he is satisfied that this arrangement meets that requirement.

Having said all that, we have had a valuable debate. The Minister has, at various points, indicated that he will give further consideration to some of the points that we have raised and I hope that he will do so. I hope that at a later stage we will have the opportunity to return to some of those issues, but at this point I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I beg to move amendment No. 167, in clause 1, page 2, line 10, after ‘Schedule),’, insert—

‘(ma) a substance treatment requirement (see paragraph 23A of that Schedule).’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments:

No. 168, in schedule 1, page 98, line 18, at end insert—

‘Substance treatment requirement

23A (2) In this Part of the Act, “substance treatment requirement”, in relation to a youth rehabilitation order, means a requirement that the offender must submit, during a period or periods specified in the order, to treatment, by or under the direction of a person so specified having the necessary qualifications (“the treatment provider”), with a view to the reduction or elimination of the offender’s dependency on or propensity to misuse substances.

(3) A court may not include a substance treatment requirement in a youth rehabilitation order unless it is satisfied—

(a) that the offender is dependent on, or has a propensity to misuse, substances, and

(b) that the offender’s dependency on or propensity is such as requires and may be susceptible to treatment.

(4) The treatment required during a period specified under sub-paragraph (1) must be such one of the following kinds of treatment as may be specified in the youth rehabilitation order—

(a) treatment as a resident in such institution or place as may be specified in the order, or

(b) treatment as a non-resident at such institution or place, and at such intervals, as may be so specified, but the order must not otherwise specify the nature of the treatment.

(5) A court may not include a substance treatment requirement in a youth rehabilitation order unless—

(a) the court has been notified by the Secretary of State that arrangements for implementing substance treatment requirements are in force in the local justice area in which the offender resides or is to reside,

(b) the court is satisfied that arrangements have been or can be made for the treatment intended to be specified in the order (including, where the offender is to be required to submit to treatment as a resident, arrangements for the reception of the offender),

(c) the requirement has been recommended to the court as suitable for the offender by a member of a youth offending team or by an officer of a local probation board, and

(d) where the offender is aged 14 or over at the time that the requirement is imposed, the offender has expressed willingness to comply with the requirement.

(6) In this paragraph “substance” means any substance, whether in liquid, solid or gaseous form.’.

No. 182, in clause 7, page 5, line 48, at end insert—‘“substance treatment requirement”, in relation to a youth rehabilitation order, has the meaning given by paragraph 23A of Schedule 1;’.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The amendments come together to form one proposal: to add a substance treatment requirement to the orders available to the court. The purpose of that is to address a particular and rather odd gap in the way in which the Bill has been drawn up. At present, the Bill says that the court can impose a drug treatment requirement and drugs are defined in schedule 1 part 2 paragraph 22(5) as

“a controlled drug as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38).”

That means that to qualify for a drug treatment requirement, the young person has to be abusing illegal drugs. As everyone involved in youth justice knows, the fact is that illegal drugs are only a small part of the picture. The most obvious aspect of substance abuse that is not addressed in the Bill is alcohol.

Like many other hon. Members, especially on this Committee I am sure, I have visited the youth offending team in my area to ask what lies at the heart of current problems with youth offending. They were very clear that at the heart of a lot of the problems is the abuse of alcohol, not the abuse of illegal drugs. There is broad agreement among experts that, if we want to look for the causes, especially of violent behaviour, there is at least an association, if not a cause, of violent behaviour with alcohol abuse and problem drinking in general. Alcohol is at the heart of many of the problems that we  face and that young people themselves face, and the order should allow a treatment requirement for alcohol and not just for drugs.

It is not only alcohol. There are all sorts of other substances that are not in themselves illegal that can be abused and cause serious problems and damage to young people, with serious behavioural consequences. The most obvious one is glue. Glue is not illegal and glue-sniffing or abuse of glue is not covered by the Bill, but it should be. Every few months, we read in the newspapers of another substance that people have somehow got hold of and started to abuse, whether it be prescription drugs or something as simple as nitrous oxide—laughing gas. All sorts of developments in youth culture will not be covered by the Bill. There is a need for flexibility and a broader approach.

We must also consider the interaction between the abuse of illegal drugs and the abuse of alcohol and other substances. Experts in the area will tell anyone who wants to hear that alcohol abuse is often associated with, or leads to, the abuse of illegal drugs. To deal simply with one aspect of a young person’s problem with drugs, without addressing other aspects that might include the abuse of alcohol and other substances, will not get to the heart of the problem.

There has been scepticism in some quarters about the effectiveness of court order treatment. It does not always work. I accept that, but my amendment suggests that, if we are to have court order treatment—which we should—it should be much broader than simply covering illegal drugs. It should cover a wide range of substances, both those known now and those that young people might abuse in the future, to their own detriment as well as to that of the community.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

I support the amendment tabled by the hon. Member for Cambridge. I have the privilege and honour of being a trustee of an organisation based in Kettering called Solve It. It is a national charity dedicated to promoting awareness, particularly among young people, of the dangers of volatile substance abuse, some of which the hon. Gentleman highlighted. Volatile substance abuse is an extremely dangerous pastime. One of the problems is that the matter falls between several departmental stools. The Home Office, the Department of Health and what was the Department for Education and Skills have responsibility for tackling the issue. An attempt has been made at a co-ordinated response to the problem.

I welcome the hon. Gentleman’s amendment because volatile substance abuse is a particular habit in which young people are engaged. When talking about youth misbehaviour, it is therefore appropriate to introduce such a provision. A frightening aspect of volatile substance abuse is that many participants die the first time that they engage in it and, often, there is no warning. About 52 young people a year die of volatile substance abuse.

Two main organisations are dedicated to tackling the problem: Solve It and Re-Solv. They both undertake similar work to promote awareness among young people, particularly in schools, of the danger of substance abuse. I think that I am right in saying that most hard drug users start by abusing volatile  substances, especially lighter fuel and butane gas. The amendment would make a terrific improvement to the Bill and I hope that the Minister will agree to its inclusion. The Bill is about youth misbehaviour, and the proposal would be a welcome addition.

It being One o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.