Schedule 2

Criminal Justice and Immigration Bill – in a Public Bill Committee at 1:00 pm on 25th October 2007.

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Breach, revocation or amendment of youth rehabilitation

orders

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

I beg to move amendment No. 30, in schedule 2, page 113, line 11, leave out ‘that sub-paragraph’ and insert ‘sub-paragraph (1)’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss Government amendment No. 31

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

I welcome you to our afternoon sitting, Sir Nicholas. These are drafting amendments to paragraph 10(3) and (4) of schedule 2. They clarify the order-making power in sub-paragraph 1.

Amendment agreed to.

Amendments made: No. 31, in schedule 2, page 113, line 14, leave out ‘(2)’ and insert ‘(1)’.

No. 32, in schedule 2, page 117, line 15, leave out ‘Where the offender is aged 14 or over,’.

No. 33, in schedule 2, page 117, line 22, leave out ‘who is aged 14 or over’.—[Mr. Hanson.]

Question proposed,That this schedule, as amended, be the Second schedule to the Bill.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I shall be as brief as I sensibly can, but as the Bill consists predominantly of schedules rather than clauses, it is incumbent on us to spend a little time—not an excessive time—considering what clause 2 does. I shall not ask the Committee to divide on whether the schedule should stand part of the Bill, but this is an opportunity to consider what we are doing. I said on Second Reading that this is predominantly a schedule Bill. For example, clause 2 does nothing except to bring  schedule 2 into effect. I want to highlight a number of issues, which might even touch on other schedules.

With regard to procedural matters, first, when a court comes to consider a sentence involving the breach, revocation or amendment of a youth rehabilitation order, it will have to examine the schedule closely to work out where it stands, almost as if it were in a game of snakes and ladders. I would urge, if at all possible, that simplicity enter into the drafting process—I dare say that it is too late for this Bill. I appreciate that the Government do not want to miss anything out or to produce legislation that leaves a court in doubt as to its powers or to how the sentencing regime is to be governed.

For example, in respect of the powers of both the magistrates court and the Crown court, the schedule, on page 113, in part 3, at paragraph 11(2)(a) and (b), essentially provides the court with the power to revoke the existing sentence, to re-sentence for the original crime, and to deal with the breach. Rather than a court going all through the detailed paragraphs of part 3, it would be far simpler as a matter of drafting, and therefore as a matter of efficient use of court time, and our own, if a straightforward power to revoke, re-sentence for the original offence and deal with the breach could be built into the Bill and replicated across each of the jurisdictions—be it the summary jurisdiction or the Crown court jurisdiction.

The Government may be fearful that if they do not set the measures out in such complicated detail, no one will fully understand the powers that apply to each respective court or to particular sorts of breaches and what a court can do. However, I have a suspicion that, when those who are training magistrates or Crown court judges come to look at this on Judicial Studies Board courses—of which I have been on a few—they will ask why it is like this and why it could not be a little simpler.

My second point touches on some of our earlier debates in relation to schedule 1. It is essential to build into the system a flexibility to allow a judgment to be made about each breach so that the court, be it the magistrates or the Crown court, does not feel boxed in by too rigid a framework, and the discretion referred to by my hon. Friend the Member for Enfield, Southgate is left in the hands of the court.

Other points that need tightening up include paragraph 3, in relation to the warning system. Clearly, it is sensible to give to a young person who is about to commit or has committed a breach, a warning that if he continues in that way, something worse could happen. I would ask the Committee to bear in mind what sort of person we are likely to be dealing with. They will not be very organised or responsible for their own lives, by virtue of the fact that they are before the criminal justice system at all. Some of them may have no contact with formal schooling; some of them may be riddled with substance abuse; they simply may not be very clever people, in the loosest sense of the word. Therefore, any warning must be clear and there is no better way of achieving that than in writing. Although other provisions deal with notices and certificates later in the schedule, it might be worth considering whether warnings should be given in writing, because it brings a little more authority.

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

I would expect that warnings would be given in writing.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Good—I am glad. I do not suggest that we amend the schedule, but it should be made quite clear to the supervisors of these youngsters, in practice notes, protocols or some other form of guidance, that they must give warnings in writing and copy them to the responsible adult. It may be that the parent of the child in question is not very responsible either, but it is important that no provision is built into the system that allows for any excuse for failure by the criminal justice system or the individual offender.

Another practical question that needs to be addressed concerns the summons that can be issued by a court for failure to appear, which is set out on page 108. We must be careful that we are not just passing optimistic legislation in the absence of a knowledge of what normally happens. If a person does not appear in answer to a summons, a judge can issue a bench warrant. No doubt a magistrate can do so too; my hon. Friend the Member for Enfield, Southgate will be able to tell me about that. That power is fine, but very often there are not enough police officers to go and find that person. Such people do not necessarily stand around on the street corner advertising the fact that they are late or do not intend to appear. We must ensure that the personnel and resources are available for bench warrants and summonses of this nature to be not only issued but implemented.

Paragraph 6, on powers of magistrates courts, deals with the fining of young offenders under the age of 14. There may be some offenders of that age who have £250 in their accounts that can be extracted and given to the court, but I do not suppose that many of the sorts of people who unfortunately come in front of the courts will have that sort of money at that age. Essentially, we are fining the parent or guardian. We need to be careful that we are not just airily writing legislation that looks good on paper but provides an empty remedy. Even if the parent is the one who pays, we should bear it in mind that the benefits system might actually pay, not an individual, so the force of the penalty might be limited to some extent. I am not making a fundamental criticism, merely urging us to be careful.

Paragraph 6(4) states:

“In dealing with the offender under sub-paragraph (2), the court must take into account the extent to which the offender has complied with the youth rehabilitation order.”

That is repeated throughout the schedule. Surely, any court will look at the circumstances of the person in front of it. That does not need to be spelled out in black and white. Sub-paragraph (5) states:

“A fine imposed under sub-paragraph (2)(a) is to be treated, for the purposes of any enactment, as being a sum adjudged to be paid by a conviction.”

I wonder whether that is a typo or a term of art. Are we intending to say, “on a conviction” or “by a convicted person”, or is the expression “by a conviction” an accepted legal term in such circumstances?

Paragraph 7(2) states:

“The court may instead ... commit offender in custody”.

There is a word missing. I suggest that it should say “commit the offender”. More importantly, in relation to that sub-paragraph, surely all that we need to say is that the court may remand the offender in custody or in bail to the Crown court.

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

I am grateful for the comments of the hon. and learned Gentleman. I am inquiring as to the logic of not tabling amendments to the schedule, as they could have been discussed. There was an opportunity to do so. I am quite happy to look at the concerns that he has, but these are issues that could have been subject to discussion and amendment, and we could have reflected on them before Committee.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am trying to speed up the process. I am hurling at the Minister a number of small and medium-sized points along with some fundamental points.

This is not an attack on the Government. The Minister need not worry; the Government will not fall this afternoon as a result of these points. I am simply asking us to be careful as we rush together to create legislation. The Committee is under time pressure, as you reminded us, Sir Nicholas. I could have tabled any number of amendments, but sometimes one loses the will to live. [Laughter.] However, I think that it is important that I chuck the occasional pebble into the Government pond. I just ask the Minister to take these ideas away. I do not expect a detailed response. I realise that if I had tabled an amendment, he would have a ministerial brief and so could comfortably respond, but I am not after that this afternoon. I am instead quietly tugging at the prefect’s spats. We will see how we get on.

There are a number of areas in this schedule which are susceptible to the greater or lesser criticisms that I have addressed so far, but bearing in mind your strictures, Sir Nicholas, and bearing in mind my need to remain on very friendly terms with the Minister of State, I shall finish on this one point. It relates to page 115 and part 4 of the schedule. It says something that we have not just a schedule, but a schedule that is divided into many parts. It has more parts than Caesarean Gaul, one might add. But there we are.

Paragraph 13 is headed “Amendment by appropriate court”. This is a perfectly sensible suggestion. If an offender moves from one local court jurisdiction to another, it is important that the order should follow him and can be applied in the new area. However, we must ensure that the communication and co-operation systems are available to ensure that this happens. Far too often—I say this from my experience in sitting in courts in London—even within a petty sessional division, things do not get done because nobody bothers to tell the person who needs to implement the thing that has been decided. Will the Minister please ensure that an adequate communication system is in place before the Bill becomes law, so that the force of order can follow the offender geographically as he moves about?

I am beginning to feel inhibited from making further remarks, for no better reason than that the clock is ticking. If I do not continue to talk about schedule 2, I do not want anyone—particularly the Government—to think that I have no further things to say in relation to it. I do.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

You are very kind, Sir Nicholas. In that case, I shall just say two more things. Taking a random example, paragraph 22(5) states:

“The powers of a magistrates’ court under this paragraph may be exercised by a single justice of the peace, notwithstanding anything in the Magistrates’ Courts Act 1980”.

In many ways that is a sensible thing to do to avoid having to bring together two or three magistrates to make a decision that could be made by one, but it underlines the point that the hon. Member for Leyton and Wanstead made on Tuesday about the need for adequate representation of youngsters within the criminal justice system. When decisions about the future of young offenders are being made by a smaller court, which is in the interests of efficiency, we must be careful that the offender is not left alone in the court. I suspect that no humane magistrate would want to do that, but we need to take care.

Furthermore, on the issue of making sure that these young people are dealt with properly, if copies of the revoking or amending order are to be provided to the parent or guardian of someone under the age of 14, as stated at the top of page 122, why are they not to be provided to the parent or guardian of any other minor who comes before the court?

Finally, paragraph 25, “Power to amend maximum period of fostering requirement”, gives the Secretary of State quite a big power in terms of the disposal of youngsters. It is not simply a question of raising or lowering the limit of a fine or the number of hours of unpaid work; the paragraph deals with the length of time for which a child can be taken away from its natural parents and handed over to the local authority. It can happen for all sorts of good reasons, as we discussed on Tuesday, but we ought to be careful. Such a power should not be exercised without far greater parliamentary intervention.

As always, I am deeply grateful to you, Sir Nicholas, for your patience and forbearance as I seek to tease the Government into producing better legislation. I look forward to hearing from the Minister either now, or in writing in due course.

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

I hope to reassure the hon. and learned Gentleman that I am relaxed about discussing any aspect of the Bill. If he wishes to spend time on schedule 2, that is fine by me. The point of my intervention was that if even moderate drafting changes are to be made, the purpose of the Government and the Opposition is to ensure that those changes make good legislation. As part of that process, we must consider the potential legislative impact of drafting changes with parliamentary counsel outside Committee. I know that he will understand that, but I am genuinely relaxed and willing to go at whatever pace the Committee wishes. We do not have any knives in the process. I am content for us to consider anything.

I shall read Hansard when it is published for the hon. and learned Gentleman’s points. If he has made valid points about the detailed aspects of potential amendments, we are always willing to consider them if they will improve the Bill. The purpose of Committee is to have political arguments, but also to ensure that the Bill is clear and usable and achieves the desired objectives. I did not mean to criticise him. I am sure that we will get on as far as possible within the constraints of Opposition politics.

I shall respond to a couple of the hon. and learned Gentleman’s points. To reiterate my point about warnings given directly to young people by the officer responsible  for the order, I confirm that it would be appropriate for the responsible officer to make an internal record of any warnings and normally to confirm those warnings in writing for the individual. That is in line with the current good practice of the Youth Justice Board’s national standards for the enforcement of orders and will provide a balance between the need for compliance with an order and the individual’s circumstances, as well as ensuring that the individual understands the message. I hope that that reassures him.

The hon. and learned Gentleman mentioned the danger that combining provisions to cover magistrates and Crown courts could lead to more complex provisions. The schedule’s merits lie in setting out separate provisions for each court. For example, magistrates will need to digest only those provisions relating to youth courts. We are trying not to over-complicate the schedule, which is why we have drafted it as we have. The separate provisions will assist each court in turn.

The hon. and learned Gentleman mentioned bench warrants. I take on board his points. I accept that such warrants must be executed quickly, and I hope that that will be the normal practice.

I am happy to reflect on the points that the hon. and learned Gentleman made. In general, he mentioned a number of drafting points. I am happy to consider them in light of his comments. Different drafting styles impact legislation differently. If hon. Members prefer that the detail should be settled in a broad order-making process, perhaps we can do that next time around rather than this time. I will consider the hon. and learned Gentleman’s points, because there are details that need reflection. However, given those brief comments and the assurances I have offered on a couple of his substantive points, I hope that the Committee will agree to the schedule.

Question put and agreed to.

Schedule 2, as amended, agreed to.