Schedule 1

Criminal Justice and Immigration Bill – in a Public Bill Committee at 5:30 pm on 23rd October 2007.

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Further provisions about youth rehabilitation orders

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

I beg to move amendment No. 174, in schedule 1, page 86, line 19, at end insert

‘, after considering advice from children’s services and the youth offending team,’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss amendment No. 171, in schedule 1, page 86, line 22, at end insert—

‘(aa) that the imposition of a fostering requirement would tend to improve the circumstances in which the offender was living, and’.

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

We come now to consideration of the youth rehabilitation order with fostering requirements, and what might be suggested by such an order. The amendments are small and it might be said that they state the obvious, in terms of the provisions, but they also cover areas that are not explicit in the Bill. The present wording of schedule 1 requires the court to be satisfied

“that the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living,” and

“that the imposition of a fostering requirement would assist in the offender’s rehabilitation.”

It goes on to say that before any fostering requirement is made, the court’s assessment needs to be accompanied by consultation with the offender’s parents or guardians and consultation with the local authority in which the court intends to place the offender with a foster parent.

It is axiomatic in what Ministers have said about the orders that they would be derived from a proper consultative process by all concerned. The measure would not be imposed by a court out of the blue sky, but would be the result of all the agencies involved with the care and future management of the offender sharing the view that this is a disposal that they would recommend. The courts will make the decision as to whether it is an appropriate disposal, but other agencies must be involved. There is no mention of that in the Bill but it is assumed that that will be the case.

Amendment No. 174 tries to ensure that the court will have properly consulted with children’s services and the youth offending team before it considers this fundamental, and as we know expensive and perhaps difficult to effect, order. The court must be satisfied that it is the right and proper disposal for that individual.

The Minister may intend to include that in sentencing and other guidelines to the court, but it is important that the point is made. This is a culmination of a consultative process rather than ex cathedra judgment by the court. Quite apart from the interests of the criminal justice system, it is fundamental to the child’s interests.

Amendment No. 171 might be taken as a statement of the obvious. Again, it is an important consideration that the court must take into account. It touches on the point made in the context of the previous amendment by the hon. and learned Member for Harborough. It would be wrong to take somebody out of an environment that may be conducive to them offending or reoffending, only to place them in an environment which is no better. We have already had assurances from the Minister about pilot schemes, and I see no reason not to include the latter point made by the hon. and learned Gentleman, although whether it can be rolled out is a different matter from whether it should  form part of the provision within the Bill. Even though a criminal justice Bill arrives every few weeks, there is no reason not to use this one to make the necessary amendments to the law.

During the pilot schemes, individuals were placed with foster families and not into children’s homes—some of us have serious doubts as to whether children’s home accommodation could possibly provide the stability and safe refuge that would be required. We must be satisfied that the order would do the same. Amendment No. 171 states that

“the imposition of a fostering requirement would tend to improve the circumstances in which the offender was living”.

That is modest wording for what we intend to accomplish. It should very significantly improve the environment in the context of the behaviour that constituted the offence.

May I just say one thing in parenthesis? Is it correct to say that

“the behaviour which constituted the offence was due to a significant extent to the circumstances”,

rather than that the circumstances contributed to the likelihood of the offending behaviour? There is a difference. I would hate it if a clever person were challenging this at some later stage and said, “You cannot possibly imply causality from the family environment with any certainty.” I ask the Minister not to respond now, but to ponder whether there is any difficulty with the bald expression “the offence was due”. Of course, the offence was due to the behaviour of the individual and perhaps the circumstances in which he or she found themselves on that day, having the opportunity to commit the offence. It is not due to the environment, but the environment can affect the propensity of an individual to commit an offence, which is what we are dealing with through the intensive fostering arrangements. That is an aside.

I have two separate points to make, neither of which I intend to seek to divide the Committee on. First, I should just like to gauge the Minister’s reaction to the orders arriving out of a genuinely consultative process with all concerned with the individual’s welfare and management. I think that that is intended, but I want to ensure that that is always so. Secondly, I want to ensure that the placements are, as far as can possibly be arranged, to the benefit of the individual and will not be allowed where a local authority has failed to make proper provision—if it is their responsibility to do so—and the different environment is no better than the one from which the child was taken as a result of the rehabilitation order.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 5:45 pm, 23rd October 2007

I sympathise with the intention behind amendments Nos. 174 and 171. However, instead of “after considering advice”, in amendment No. 174, I would prefer to use the words “after considering evidence”, because a court would be making decisions based on evidence rather than advice. Advice might be useful—opinion evidence is sometimes permitted—but I think that we want to know the facts before we make a decision.

I agree with the hon. Gentleman’s criticisms in relation to paragraph 4(2)(a), under which the offence is

“due to a significant extent to the circumstances in which the offender was living”.

We want to know about the circumstances in which the offender was living, then we can draw our own conclusions, based on the offence and those circumstances, about whether there was a relationship between the two. Plenty of people live or have been brought up in difficult circumstances and never commit a crime in their lives and far too many people who have had privileged lives none the less go on to commit offences. Equally, I suppose that if the circumstances in which the offender was living affected the way his mind was working or his morals, his understanding of right and wrong or what was due to his actions and what was not, the court should be informed. We want information given to the court on the basis of which it can make a sensible decision.

I would not have written the Bill as it has been drafted. Perhaps, when the Minister takes the Bill back, in the gap between this Session and the next, a different form of words can be produced. That is just a suggestion. It is not something that I will go to the stake on, because I suspect that when the courts are advised by advocates, or what used to be called justices’ clerks, they will take a common sense view of this issue.

The hon. Gentleman said that he was doing no more than putting forward the blindingly obvious; perhaps I am paraphrasing him inaccurately. Amendment No. 171 is fairly close to being within that category. It is tough being in opposition; it is even tougher being the third party in opposition—not that I intend to change his position in relation to the two main parties.

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

The amendment was tabled in order to have the debate that the hon. and learned Gentleman managed to have under the previous group and to examine the circumstances in which a person could be placed in foster care and whether that could include a local government home placement rather than a foster family.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Now we are getting back to the meat of the discussion. In paragraph 18 of schedule 1, which is married to the paragraph that the hon. Gentleman is seeking to amend, sub-paragraph (6) states:

“This paragraph does not affect the power of a local authority to place with a local authority foster parent an offender in respect of whom a local authority residence requirement is imposed.”

I know that we discussed this issue with the Minister a moment ago when debating the other group, but it is important that if the fostering requirement is to work, the fosterer should be a human being or a human family, not a local government institution. Otherwise, the whole point is lost. The expression “a local authority foster parent” may be well known in the social service and family court worlds. It may be defined later in the Bill—I should have checked—but it is important that paragraph 18(6) refers to human beings.

The only other comment that I make in relation to paragraph 18 relates to sub-paragraph (7). That requires the Secretary of State to certify that there is a fostering family or a fostering system available in the area of the local authority that is to place the offender. That brings me back to the York university evaluation and the pilot scheme that the Minister told us about not so long ago. The Bill, all being well, is likely to complete its passage through Parliament some time after Easter and will  presumably receive Royal Assent in the early summer. However, as we know, Bills do not come into force on the day of Royal Assent nowadays. They come into force in various sections or at a date to be appointed by the Secretary of State.

I suggest gently to the Government that the date to be appointed should be after the evaluation of the York university pilot scheme because if this system—or this disposal, to use a hideous expression—is put on the statute book and made available to the courts before it is ready, we will just get into a muddle. I would rather that we did this slowly and sensibly than speedily and less sensibly, albeit that Governments are often tempted to do and say things in order to get a headline.

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

I am grateful to the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough for the way in which they have approached the amendments. I hope that I can give them some comfort in relation to the objectives that they seek. I remind the Committee again that we have had a long discussion on the question of intensive fostering, and it is a primary requirement of intensive fostering that the offending must be associated with the individual offender’s home environment. That is clearly set out in paragraph 4(2) of schedule 1. I raise that point again because it is important to recognise that the intensive fostering requirement states that the behaviour that constituted the offence must have been

“due to a significant extent to the circumstances in which the offender was living”.

I expect that the use of the order will be very limited and fully anticipate that, before agreeing that the intensive fostering requirement is necessary, those professionals and individuals involved in assessing the individual will have undertaken a full assessment of the individual and judged that their home is a contributory factor towards the offending and

“the imposition of a fostering requirement...would assist in the offender’s rehabilitation”.

Therefore, the objectives that the hon. Member for Somerton and Frome put in amendment No. 174, of

“considering advice from children’s services and the youth offending team” and those of amendment No. 171, will be implicit in the work that will go on to prepare for the likely imposition of the order by a court. I fully expect that, before recommending to the court that the fostering requirement is appropriate, the youth offending team will have undertaken a full assessment not only of the young offender and their needs, but of the impact on the young offender’s family, who are equally part of the objective outcome of the order.

I do not consider the amendment to be necessary for the reasons that I have stated today regarding good and appropriate practice and guidance for those who will study the legislation. It will be essential that the individual organisations that he has mentioned in his amendment are involved in the full assessment of the order prior to it finally being made.

The youth offending teams are involved not simply because it is a good and positive thing that they are or because I say that they should be. They will be involved  because, under section 156 of the Criminal Justice Act 2003, there is already a requirement for a pre-sentence report, which the youth offending team will have to prepare prior to any consideration of the order by the court. I fully understand where the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough are coming from, and simply say that I hope they will understand from my perspective that those bases are covered and the encouragements that they want to see are provided for in the 2003 Act. They are also provided for by my encouragement of good practice in relation to pre-sentence reports made prior to the exercise of the intensive fostering order by a court. That will take place when the legislation reaches the stature book in January 2008.

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

I am extremely grateful to the Minister for his response, which entirely satisfies me. The only comment that I will make is that, when he mentioned the circumstances in which the offender was living, he used the valuable phrase “contributory factor”. I would be much happier if his provision was so worded, so that the court had to be satisfied that the circumstance in which the offender was living was a “contributory factor” to a significant extent to the behaviour that constituted the offence. That would satisfy my slight quibble concerning the causality implicit in the current wording. I will leave him to ponder that, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 6:00 pm, 23rd October 2007

I beg to move amendment No. 22, in schedule 1, page 91, line 1, leave out ‘14’ and insert ‘16’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss Government amendments Nos. 23 and 24 and 49 to 53.

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

Amendments Nos. 22 to 24 make changes to the bandings of the aggregate hours for which offenders may be required to attend at an attendance centre. They will change the hours set out in the Bill to those currently used by the youth courts, so effectively we are not making any change. The Bill proposes a change but we are not making it. The number of hours will be as they are now: a maximum of 12 hours for under-14s: between 12 and 24 hours for 14 to 15-year-olds; and between 12 and 36 hours for 16 to 17-year-olds.

We have had discussions since the Bill was published with key stakeholders who agree that the attendance hours should not be increased, particularly for the younger age group, and we have accepted that. Essentially, the changes I am making are neutral in their effect. Amendment No. 49 makes a small textual correction. Amendments Nos. 50 to 53 make changes to schedule 5, which modifies the requirements of the youth rehabilitation order to apply them to youth default orders. They change the hours that can be offset against an outstanding fine in a similar way to the amendments made to the hours in schedule 1. I hope that these are fairly straightforward amendments. They should not be controversial. They are small textual changes and I commend them to the Committee.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The Minister says that the amendments are small textual changes: they are to some extent, but they have some considerable effect. It was not quite clear from what he said how the figures in the Bill got in there as opposed to the ones that he now wants in. Presumably someone must have thought quite carefully about how the Bill was constructed. Amendments Nos. 49 to 53 affect pages 150 and 151. I have lots of little read marks all over my copy of the Bill. I am sure that the Minister is itching to tell us how it was created.

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

It is probably a fair cop in the sense that this was an error in the Bill that I am trying to rectify, following consultation after its publication. The figures in the Bill should not have been included. They should have been the figures in the amendments that I have proposed. I am trying my best to make that clear. I am taking this on the chin and doing it according to the Committee’s will.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The Minister has a very delicate chin and I do not want it to come to too much harm. In a sense this is a small and childish debating point. But that is not the point that I am trying to get across to the Committee. My point is that when a Bill like this is pulled together from all sorts of different places, and it deals with all sorts of different things, errors of this nature will happen. In the great scheme of things it is probably not very important that the figure 18 was put in when it should have been 12 or whatever. Nor does it very much matter that it says convict instead of conviction. I think we all know what the draftsman was trying to do.

This is an object lesson that shows us that essentially the Bill should be deconstructed. There should be a separate Bill for youth justice, a separate Bill for the police stuff and a separate Bill for the immigration status stuff, and so on. I know that it is convenient in some respects to lump everything together on a great Christmas tree and then Ministers can come in during the Committee stage or on Report or in the House of Lords and just hang additional things on.

Alun Michaelrose—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Hang on, a constructor of Christmas trees is about to intervene on me. I wish I could chop them down more effectively from time to time. This Parliament—that is to say the 1997 through to 2007 Parliament—has seen hundreds of Bills come forward. In the criminal justice field we have seen lots of these funny Christmas tree Bills which give Ministers additional powers to do this, that and the other, and I want to give the Government a gentle spur toward occasionally having a criminal justice Bill once every two years.

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

Will the hon. and learned Gentleman give way?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I shall in a moment, because I want to hang something on the right hon. Gentleman shortly. As I was saying, if we could move toward having a criminal justice Bill once every two years instead of once every six months, we would have tidier and more coherent legislation. The present situation is not the fault of the Minister of State; he had to pick up this dish when he moved from Northern Ireland. However, I am beginning to meander.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. I think the hon. and learned Gentleman saw my elbows flexing. That is enough meandering.

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

I am interested in the hon. and learned Gentleman’s remarks about tidiness of Bills. I wonder why he did not show such vigour in challenging Christmas tree Bills when they were the responsibility of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard).

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. We really must bring the debate back to consideration of the Bill.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I quite agree. [Interruption.] I feel many things when I listen to the right hon. Gentleman, but desperation is not among them. His remarks were not so much a Christmas tree as a total turkey.

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

The hon. and learned Gentleman forgets the nature of the Crime and Disorder Bill, which even went so far as to have amendments to fisheries and shellfish legislation in it, and was such a total dog’s breakfast that it spent three days on Report.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. Enough allusion has been made to parallels in past legislation. I call Mr. Garnier to address the Bill.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The election will be along shortly. I leave my comments where they were. They were a gentle reminder that we need more thinking before legislation.

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

I have little to add, except possibly to suggest a slightly different approach in these circumstances. There is far too much machismo in this place for my liking, and we should try to make it easier for the Government to change their mind. On the attendance centre figures they have gone back on the proposal after listening to other advice, and they are restoring the status quo. When they make a concession of this sort, we should not make it difficult for them by crowing and trying to humiliate them; we should thank them for their common sense in listening, and hope that they do so again in relation to other parts of the Bill.

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

In my 15 years in the House, I have participated in, I believe, 26 Bill Committees, and I can honestly say that on not one single occasion has the relevant Bill completed its passage through Committee without being altered in some way. During my five years in Opposition, there were a number of Bills that affected my constituents, and in relation to which amendments arrived in droves. Bills develop organically.

I am grateful for the question from the hon. and learned Member for Harborough. I shall tell him a secret, which might be of comfort, which is that at an earlier stage I asked the same question. He has referred to the fact that I came back from Northern Ireland to find that a large amount of work had already been done on the Bill by officials and colleagues. Some aspects of the Bill will continually evolve. Today’s amendment acknowledges the fact that there was an incorrect figure. I am grateful to the hon. Member for Cambridge for recognising that such things happen, and I commend the amendment to the Committee.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

The amendments have been exhaustively debated.

Amendment agreed to.

Amendments made: No. 23, in schedule 1, page 91, line 3, at end insert—

‘(aa) if the offender is aged 14 or over but under 16 at the time of conviction, must be—

(i) not less than 12, and

(ii) not more than 24;’.

No. 24, in schedule 1, page 91, line 5, leave out ‘18’ and insert ‘12’.—[Mr. Hanson.]

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

I beg to move amendment No. 25, in schedule 1, page 95, line 40, leave out from ‘(c)’ to first ‘the’ in line 41.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss Government amendment Nos. 26 to 28, 32 and 33.

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

The amendments update the language used, to reflect the terminology now used by the Department of Health and to be in line with the Mental Health Act 2007. The amendments change the wording in schedule 1 surrounding the mental health drug treatment and drug testing requirement, and the references to those requirements made in schedule 2, which deals with breached revocation and amendment to youth rehabilitation orders.

An indication of willingness to comply with treatment will be required, whatever the age of the young offender and not simply for those aged 14 and over, as the Bill provides. Guidance will deal with those who are of an age that they cannot fully understand the implications of such a requirement. We brought forward those changes because of the changes that I have mentioned in the Mental Health Act 2007. They have been brought forward in consultation with the Department of Health to ensure consistency of approach. The Department of Health will separately provide detailed guidance to medical practitioners on the issue of consent to treatment. That is different from the matter of willingness to comply, which is required before the court may impose a treatment requirement in a youth rehabilitation order. I hope that the Committee will accept the amendments to update the Bill, following the Mental Health Act. I commend the amendment to the Committee.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I do not disagree with the amendments that the Minister proposes. I ask a question out of ignorance, which is: can a child consent to treatment, medical or otherwise, or express willingness to receive it, without the agreement of his parent or guardian? Obviously, if he cannot that may undermine the thrust of these paragraphs of the schedule. If the Minister wishes to take advice on that issue I do not expect him to answer the question now, but I cast that fly across the water so that we can view it. I will also continue to address the Minister so that any notes that may come forward to allow him to answer can do so.

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

I do not know the answer to that important point. I suspect that consent can be given. I recall that that was the basis of the Gillick case, to a considerable extent, but perhaps I am wrong and I certainly claim no authority. Consistency between  statutes is to be wished for but is seldom achieved and if this is a case of the Department getting it right, I welcome it.

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

I hope that the amendment will be non-controversial. I am hopeful, if I may help the hon. and learned Gentleman, that the amendment is not about consent to medical treatment. We are trying to ensure that the offender will comply with the order. In relation to parental consent, I should like to reflect on that point and get in touch with the hon. and learned Gentleman shortly.

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

The Minister has just worried me now. Is he saying that the person could comply with the order by attending the mental health treatment place, even if he did not accept the treatment when he was there?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 6:15 pm, 23rd October 2007

We are not trying to force treatment on young people. It is quite the contrary. We aim to encourage them to undertake treatment when it is clear that their offending is linked directly to their need to receive treatment. It is essentially a voluntary involvement to ensure that young people are encouraged to undertake the treatment, not compulsory treatment.

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

I repeat the point: does the person to whom such an order is applied comply with the order simply by attending the treatment centre rather than undergoing specific treatment at the centre?

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

An indication of willingness to comply with treatment will be required whatever the age of the young offender. The young offender has to ensure that they comply with the treatment, but it will be done on a voluntary basis. We do not want to force young people, but encourage them when there is a clear and identified need to ensure that they receive the treatment.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I had not intended to get into such a discussion, but it is quite important. Several people in such a condition could have a double diagnosis. They could be mentally ill and could also have a drug addiction. If is often difficult to distinguish what causes which. Clearly, a court that was thinking about giving a mental health treatment requirement would want to be satisfied before it did so that the individual defendant in front of it could usefully attend treatment. Obviously, it would not be able to second-guess the doctors, but it would want to know that whatever treatment outlined would be applied and have a beneficial effect. While not wishing to delay the Committee with a debate about the Government’s amendment, we ought in fairness to the public whom we represent not pass over something that could lead to unforeseen problems if we can briefly discuss it now.

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

I hope that I can clarify the matter and help the Committee. It is important that, when a young person is not able to give consent at any age, the parent or guardian will be involved. In the type of treatment under discussion, it is important that parents and guardians have a role. It will be open to an offender to express willingness to comply with a term, but equally  the offender could refuse particular treatment if it were reasonable to do so. The judgment on what is reasonable would be made in light of what the offender said. The amendment would not affect consent to particular treatment in any way, shape or form. I am simply trying to bring the terminology into line with Mental Health Act 2007.

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

I am interested in what the Minister said and in his understanding of the capacity to refuse treatment. He said “if it were reasonable to do so”. I am still at a loss to find that provision in the Bill. I do not want to tax him further on it now, but it seems a crucial issue. I am arguing about the circumstances in which an order is made and the person complies with it by attending the treatment centre, but then refuses treatment for whatever reason.

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

I refer the hon. Gentleman to paragraph 9(2) of the schedule, which states:

“The offender is not to be treated for the purposes of paragraph 6 or 8 as having failed to comply with the order on the ground only that the offender had refused to undergo any surgical, electrical or other treatment required by that requirement if, in the opinion of the court, the refusal was reasonable having regard to all the circumstances.”

Obviously, it is for the court to determine what is reasonable, but the provision provides the legal background to the decision.

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

The Minister is absolutely right. However, the provision begs the question what is reasonable and what is not reasonable. Presumably only a court can determine that. I hope that you will not mind my having raised the issue, Mr. O’Hara, and I am grateful to the Minister for his guidance. I will look a bit further to see whether I believe that it satisfies the answer that was raised in my mind.

Amendment agreed to.

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

I beg to move amendment No. 120, in schedule 1, page 95, line 42, at end insert—

‘(3A) A court may not specify treatment falling within sub-paragraph (2)(a) in a youth rehabilitation order unless it is satisfied, on the evidence of a registered medical practitioner approved for the purposes of section 12 of the Mental Health Act 1983, that the medical condition of the offender is such as requires treatment as a resident patient.’.

The amendment relates to the mental health treatment requirement. As I understand it, under paragraph 20(2) of schedule 1 the offender can be required to be treated as a resident patient or as a non-resident patient. The question is, what place will medical evidence play in the decision to place an offender in either residential or non-residential care? It appears from sub-paragraph (3) that the medical evidence used in the decision making for a mental health treatment requirement does not require the medical practitioner’s view to be taken into account on that question. Sub-paragraph (3) says that the court has to be satisfied

“on the evidence of a registered medical practitioner” approved under the Mental Health Act 1983, merely that the offender’s mental condition is

“such as requires and may be susceptible to treatment, but ... is not such as to warrant the making of a hospital order”.

On the face of it, it seems that the choice between residential and non-residential is not a matter that the mental health practitioner has any influence over. That seems to be a gap in the way that the Bill works. It seems to me—not as a person with any qualifications in the area—that this sounds more like a medical matter than a legal matter that the court could come to a conclusion about by itself.

In addition, if there is a non-medical element in this matter, it is a policy element. Over the last few years, Government policy has been moving in the direction of saying that mental health should be a matter more for care in the community than for residential care. There is some dispute about whether that is the right direction and I do not wish to get into that debate. However, it seems to me that the right way to approach that question as well is as a matter of medical evidence and not just as a matter of politics.

There should be a requirement in the Bill that the decision between residential and non-residential treatment should be taken on the advice of a medical practitioner. The underlying anxiety that prompts the amendment is that it is very important that mental health is not seen as a way of producing an alternative form of imprisonment. Mental health decisions about residential or non-residential treatment should not be criminal justice decisions. This is not an in or out decision, in the criminal justice sense. It has to be seen, for the integrity of the mental health practitioner, if for no other reason, as more of a medical than a legal decision.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I have a brief question, following on from the hon. Member for Cambridge’s remarks in support of the amendment.

A moment ago we were discussing the willingness of a child or a minor to agree to certain forms of treatment. I would like to ask the Minister to clarify whether, in the event that a mental health treatment requirement is thought to be appropriate by the magistrates or the court and there is available hospital or non-residential space to carry out the treatment, but the defendant refuses or is unwilling to comply, the only alternative is to section the person and detain him compulsorily, or will he be sent into custody?

It seems that we have to anticipate people being unwilling and, therefore, what do we do when they are unwilling, because the Government are building into the system a requirement that they should be willing? Certainly, many of the people whom I have had to sentence in 10 years as a recorder have not always been very willing.

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

I am grateful to the hon. Member for Cambridge for tabling the amendment and I hope that I will be able to deal with it to his satisfaction. It is very similar to the existing provision under sub-paragraph (3) of the mental health treatment requirement, which requires that the court be satisfied on the evidence of a registered medical practitioner that the mental condition of the young offender requires and is susceptible to treatment. The amendment would require that the court seek similar satisfaction from the evidence of a registered medical practitioner to support residential treatment, in particular.

In practice a mental health treatment requirement will be made by a court only if it has been recommended by a registered medical practitioner and the court is satisfied that a treatment place is available. Residential treatment, similarly, will be ordered only if it is deemed appropriate by the medical practitioner. I hope that I can reassure the Committee by indicating that, as with many other orders before it today, the court order treatment will be used only as a last resort and the requirement can be added to the youth rehabilitation order only if a young person’s mental health is linked to their offending behaviour and if they have failed to seek and receive treatment.

Having considered what has been said, I think that there are sufficient safeguards in place to ensure that appropriate treatment is provided under the requirements, as drafted.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

When I sat on the Mental Health Bill Committee a few months ago before the summer recess, one of the concerns raised was that there are not enough places for young people in mental health units specifically structured around the needs of young people.

Too often young people end up in mental health wards populated by adults, and that concern was expressed by all parties and by many of those organisations coming to see us. What safeguards or guidance to sentences does the Minister envisage incorporating in the legislation to ensure that the type of residence will be taken into consideration? It would be a disaster if a young child of 14 or 15 was placed in an adult mental health ward, where they could be subjected to some appalling acts of brutality. It would certainly not be in their interests for them to be in that environment.

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

The hon. Gentleman raises an important point. I hope that, if he examines Hansard for my earlier remarks, he will see that I have tried to deal with that point. For the sake of repetition, the mental health treatment requirement will be made by a court only if it has been recommended by a registered medical practitioner and if the court itself is satisfied that a treatment place is available. I shall not determine today what that treatment place is. Obviously, any court that is considering a mental health treatment order would need to have background discussions with medical practitioners to ensure that the placement was appropriate for the individual.

Also, if the court was considering residential treatment for an individual it would have to be satisfied that a treatment place was available. Again, the appropriateness of such treatment would be a matter for the court to consider. There would be a medical report, a recommendation of a placement and the security that that placement was available. I do not want to delineate the details precisely because I cannot second-guess what the court might wish to say. I hope that there are sufficient safeguards to ensure that the court’s consideration is dealt with in an appropriate way.

Photo of Charles Walker Charles Walker Conservative, Broxbourne 6:30 pm, 23rd October 2007

For the record, a treatment place may be available, but if that place was in a largely adult mental health ward, it would not be in the child’s interests to put them there.

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

The whole purpose of our discussions is to improve the lives of those who have orders placed against them and to prevent them from reoffending. If, as in this case, mental health issues are related to the offending behaviour, the whole purpose of the order is to ensure that those issues are dealt with in an appropriate way, either by placement or in a residential setting. I cannot second guess what happens down the line, but what I can say is that there will be a medical assessment. The court will be aware of that and the individual facing the order will have consideration given to their best needs. Ultimately, the court will have to be satisfied that the reoffending issue will be addressed by the placement. I hope that that offers some satisfaction to the hon. Gentleman.

The hon. and learned Member for Harborough asked what would happen if an offender refused to comply with the court and whether they would then be sectioned. Normal mental health legislation applies and if sectioning is an appropriate course of action, that might be the case for that individual. However, it would not be seen to be done simply in sentencing terms. If the individual refused to comply with the order, the court could consider alternative sentence options to help prevent reoffending issues. If an individual met the criteria for statutory sectioning under the Mental Health Act 2007, that could happen, but it would not be linked under an order of the court because treatment cannot be forced on an individual, and that is made clear in the legislation. I hope that that helps to clarify the concerns of the hon. Member for Cambridge, and that he will now withdraw his amendment.

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

I accept what the Minister says. Most of the time, the court will be looking at the medical practitioner’s report, which will probably mention the issue of residential or non-residential treatment. Most of the time, the system will work in the way that the Minister said. I accept the Minister’s intention that that is how it should work. However, I ask the Government to think about the problems of busy courts, busy medical practitioners, reports that do not always cover all the issues that perhaps they ought to cover, and magistrates and district judges not fully understanding the law or the Government’s policy intentions. When a district judge or a magistrates clerk looks at the statute—that is where they go for guidance in a real case—it would be better if they could see what the Government mean and how they intend the system to work in the statute itself. I am happy with the Minister’s assurance, but I ask the Government to reconsider the wording of the schedule. I have no intention of dividing the Committee although I may return to the matter should the Government reconsider it and come to a conclusion that I do not fully agree with. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 26, in schedule 1, page 96, line 20, leave out paragraphs (a) and (b) and insert

‘if the offender has expressed willingness for the treatment to be given as mentioned in that sub-paragraph’.

No. 27, in schedule 1, page 97, line 26, leave out from ‘(d)’ to ‘the’ in line 27.

No. 28, in schedule 1, page 98, leave out line 5.—[Mr. Hanson.]

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

I beg to move amendment No. 169, in schedule 1, page 100, line 37, at end insert—

‘Emotional and intellectual maturity

27A Before making a youth rehabilitation order, the court must obtain and consider information about the offender’s age and emotional and intellectual maturity.’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss amendment No. 170, in schedule 1, page 100, line 37, at end insert—

‘Welfare and well-being

27B Before making a youth rehabilitation order, the court must obtain and consider information about what requirements would be in the best interests of the welfare and well-being of the child.’.

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

The amendments have been suggested to me by the Standing Committee for Youth Justice. They deal with the overall proportionality of the order and the Minister will be aware from our evidence sessions that this matter has caused concern in some areas.

Having a wide palette of disposals available to the court has obvious benefits, especially when tailoring requirements to the individual before the court. However, unless there is clear guidance, there is a risk that the courts will tend towards a wider range of requirements within an order than might have been the case were they assembling different orders on a different statutory basis. If that happens, the risk is that a young person or child might be faced with a long list of requirements that they must meet in order to comply with the order. In those cases a breach of the order and a further descent into criminal sanctions becomes more likely, simply because of the person’s inability to cope with the range of sanctions that has been placed upon them by the court.

I hope that that will not happen. Evidence from the Magistrates Association suggests that good sense from the magistrates bench plus any future guidance that might be given would prevent that from happening. However, it must be acknowledged that there is at least the risk that a disproportionate outcome may arise from what is a perfectly sound reasoning process in so far as it looks at each of the separate provisions available within the rehabilitation order, and applies them to the circumstances of the offender in question.

It could be argued that there is already a requirement for broad proportionality under section 148 of the Criminal Justice Act 2003. It is right that that applies to the offence rather than the individual. Amendment No. 169 would ask the court to make an assessment of the emotional and intellectual maturity of the individual before making an order, so that it is in a position to decide whether the range of sanctions and disposals that apply through the order is appropriate, not only to the offence, in terms of condign punishment, but to the individual who is before the court.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I hear the charge that the hon. Gentleman is making. Is it not the case, however, in this area as in many others, that we need to be careful of the issue of over-legislating? There is a need to allow guidance to develop, and indeed the Sentencing Guidelines Council will no doubt issue guidelines in relation to these new sentencing options. Obviously, those guidelines, as existing  guidelines do now, will seek to ensure that magistrates are consistent in their approach to sentencing, and also take account of the points in relation to the offender, balanced with the points in relation to the offence.

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

That is, generally speaking, true. However, there are a number of provisions already in the schedule that we are referring to—part 3 of schedule 1—about factors that the court must take into account. What is missing from those factors is the emotional and intellectual maturity of the offender.

I am not sure that it is over-proscriptive to say to the court, in statute, that maturity is a factor that ought to be a consideration. It certainly would not become a paramount consideration; it is only one of the factors that would be taken into account. However, it would be useful for the court to have evidence about that maturity.

This issue refers back to some of the debates that we had earlier, about the enormous range of maturity that is evident, particularly among young offenders where age is very often not a clear determinant of the maturity of the offender and their ability to understand the consequence either of the offence or of being in breach of the order. Therefore, it seems to me that maturity is a material consideration that the court ought to take into account.

It may be that the Minister will say that guidelines and advice to the bench are the right way of approaching this subject. I would not take the matter further if he were to say that guidance would be clearly set out. However, it is important that an assurance is given that maturity is a factor that must be taken into account.

Amendment No. 170 deals with welfare and well-being. Again, it deals with a suggestion from the Standing Committee for Youth Justice. The standing committee sought to make the point that one can provide for the welfare and well-being of the child offender in a variety of ways, some of which, under these orders, will be coercive and some of which will not be coercive but will be part of the standard fare, as it were, of the welfare services. It is important that the court does not confuse the two in reaching its verdict and giving its sentence.

There is at least a fear that, when a person who is perhaps living under chaotic circumstances and has a multitude of problems in their life, the court may, with the best of intentions, wish to deal with everything that is having an impact on that young person’s life rather than simply addressing those issues that are part of the reason for the offending behaviour. It is only the latter type of issue that the court should be concerned with; the other issues are matters for the welfare services and other agencies.

It is important that help is given, but it is not essential that it forms part of a requirement on the young person through a rehabilitation order, the breach of which would constitute grounds for further action through the criminal justice system. That seems to me an important distinction and one that, again, I hope can be made clear to courts in the advice that they are given on sentencing. There is not a requirement to ensure that absolutely every provision that could be made in order to make that young person’s life better is  made, under threat of coercion through a sentence, and there are other means of achieving that purpose. That is the principal purpose of amendment No. 170 as a probing amendment. We seek assurances of the sort that would ensure that the courts directed themselves properly to the offending behaviour, rather than to the offender’s general welfare interests. I look forward to the Minister of State’s response.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 6:45 pm, 23rd October 2007

I want briefly to make a suggestion. I understand what the hon. Member for Somerton and Frome is seeking. However, surely the simplest solution—we could just substitute it in part 3 of the schedule—would be to insert a requirement that no court should make an order without a pre-sentence report. It could then be made a matter of guidance or practice, as I am sure it already is, that all the things that we are concerned about should be in that report.

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

I was going to make that very point. Before the courts make a youth rehabilitation order they will already have a pre-sentence report that will cover all the factors that have been mentioned. The youth offending team will undertake detailed assessments of the offender, their needs, and their welfare. We should also recall the purpose of the provisions, which is to help prevent reoffending through the imposition of the order. Pre-sentence reports are not the subject of legislation but will be available as a matter of course before imposition of a youth rehabilitation order, and are key.

The hon. Gentleman mentioned that, when sentencing, the court must already have regard to the young person’s welfare. In particular, when a court proposes making a youth rehabilitation order, the existing provisions of the Criminal Justice Act 2003 will apply. The court will therefore be required to consider whether a youth rehabilitation order is the most suitable sentence.

Let me give an example from the main body of the Bill. Schedule 1, paragraph 27 indicates that there is a need to have regard to family circumstances and to the likely effect of such an order on those circumstances. To me, that indicates that the welfare of the child and the impact on the family are crucial considerations in considering whether to make an order.

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

The Minister of State partly makes my point by referring to that provision. The fact that that will be specified in statute as a consideration, but that the maturity of the offender is not, is precisely the omission to which I seek to draw attention.

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

In my defence, I refer to the point made by the hon. and learned Member for Harborough to the effect that the pre-sentence report will be a decider in the imposition of any youth rehabilitation order. The court’s main purpose is, and should remain, the need to reduce reoffending. The factors that will be considered in the round by the youth offending team will be generic to the assessments, so that a holistic approach can be developed before the court makes the appropriate sentence.

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

My right hon. Friend makes a powerful point. It has always seemed to me that, if the court is to look at the problems of offending, it must consider the individual circumstances and take maturity into account. What we do not want to do is allow the court to become confused by taking its mind off the importance of reducing and preventing reoffending, the central point of my right hon. Friend’s argument.

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

I am grateful to my right hon. Friend for his help and support. I am sure that the Committee will examine aspects of the order. For example, paragraph 28 of the schedule is entitled:

“Compatibility of requirements, requirement to avoid conflict with religious beliefs, etc.”

The court is required to ensure that the order is compatible with the offender’s religious beliefs and does not conflict with work, education or the requirements of another youth rehabilitation order. I appreciate where the hon. Gentleman is coming from, but within the safeguards already in the Bill and in the Criminal Justice Act 2003, and those provided by the need for a pre-sentence report, the welfare of the child and the best interests of the young person are catered for, so I ask him to withdraw the amendment.

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

I am genuinely grateful to the Minister for setting out the process. If no reference had been made to such matters in the Bill, I would entirely accept his saying that they will be given proper weight in the guidelines because the pre-sentence report would be expected to cover all issues. However, because some aspects are dealt with under paragraphs 27 and 28 in part 3 of the schedule to which the right hon. Gentleman drew the Committee’s attention emphasises the fact that other issues are not. That begs the question why it was thought proper to mention the offender’s family circumstances, which is part of the holistic approach and undoubtedly are matters that should be taken into consideration, yet it is not thought important to mention other factors such as those outlined in the amendments.

The more that I think about it, the more I think that the alternative formulation put forward by the hon. and learned Member for Harborough would be entirely appropriate. The Bill draws attention to the importance of the pre-sentence report in such a context because it is crucial to the operation of the rehabilitation order. However, I am not worried about matters as long as factors are taken into account properly and by whatever means it is appropriate to do so. The Minister may appreciate that the omission emphasises the fact that some areas are included specifically in part 3 of the schedule. He has given us some useful assurances of what will be written into guidance. On the basis that no doubt we shall return to the such matters, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 29, in schedule 1, page 103, line 9, leave out sub-paragraphs (2) and (3).

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss Government amendments Nos. 34 and 35, 47 and 48, and 19.

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

The essential element of the amendments is to provide for a generic reference to local authorities acting in the role of parental responsibility to be applied throughout part 1 of the Bill, when reference is made to parents. That will ensure that, when a young person is in the care of a local authority, it will be consulted in its role as acting parent. They are technical amendments relating to the position of local authorities when they  have young offenders in their care. Those covering part 1 would ensure that, when local authorities are acting as parents, they are consulted on matters that reflect the role of parents under the Bill.

Amendment agreed to.

Further consideration adjourned—[Mr. Khan.]

Adjourned accordingly at five minutes to Seven o’clock till Thursday 25 October at Nine o’clock.