My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 50 [Appointment etc. of Commissioner]:
I wish to oppose the Question whether Clause 50 shall stand part of the Bill. This first grouping would remove Parts 4 and 5 of the Bill—that is, the provisions to establish Her Majesty’s Commissioner for Offender Management and Prisons and the Northern Ireland Commissioner for Prison Complaints. The amendments to Clauses 196 and 200 and to the Long Title are consequential upon removing these two parts.
As I indicated at Second Reading, we are aware that concerns have been expressed recently about the degree to which the governance and accountability arrangements set out in the Bill afford these two new statutory office holders a sufficient degree of independence from the Government of the day. Concern has also been expressed about the removal of the remit of these two commissioners from that of the Parliamentary Ombudsman. It is important to put on record that, compared with the existing administrative arrangements, placing these offices on a statutory footing already enshrines a significant degree of independence for the commissioners. The commissioners would be appointed by Her Majesty and only she will be able to remove them from office as a consequence of Addresses in both Houses of Parliament.
Furthermore, the commissioners would be legally distant from the Secretary of State and derive their remit and powers from statute. In formulating the provisions in the Bill, account was taken of the British and Irish Ombudsman Association’s criterion on independence, which is that an ombudsman’s appointment should be by persons independent of those subject to investigation. In stipulating that the commissioner staff would be provided by the Secretary of State, the Bill adopts a pragmatic approach based on what we consider to be the most efficient way of staffing these offices. Similarly, we consider that the provision of finance and administrative support—for example in relation to the provision of IT systems by the Secretary of State—would avoid any additional administrative burden to the commissioners.
Results of consultation in 2004 on the framework for a statutory ombudsman confirmed there was strong support for the removal of the commissioner’s remit from that of the Parliamentary Ombudsman, on the grounds that there should be a clear boundary between the commissioner’s remit and those of other statutory ombudsmen and that there should be no oversight of the commissioner by the Parliamentary Ombudsman. However, removing these provisions from the Bill will allow us time to properly reconsider, in consultation with the relevant parties, what changes may be necessary to address concerns, particularly in the governance and accountability arrangements. In reviewing the measures, we will have to ensure that any changes to the current proposals will also be viable and continue to deliver an efficient, easily accessible service for those potentially vulnerable people covered by the remit of these ombudsmen.
We intend to consult relevant parties, which will include the Prisons and Probation Ombudsman, the Prisoner Ombudsman for Northern Ireland and the Parliamentary Commissioner for Administration to agree a time-bound plan for review of the present policy. We will also want to consider carefully the conclusions of the Joint Committee on Human Rights in respect of those provisions. We would also expect the outcome of our review to be produced later this year and would hope to have an early opportunity to reintroduce fresh legislation.
I hope your Lordships will understand that it would be inappropriate now for me to seek to anticipate the outcome of this review. We will consider very seriously giving consideration to the other models that have been suggested and of course have regard to views that are expressed in Committee this afternoon. I look forward to hearing those views with interest and commend these amendments to the House.
Half of me supports the proposal that these clauses should not stand part and half of me is opposed. Half of me is for it because one of the aspects that needs very careful examination is the title. The title, “Commissioner for Offender Management” is utterly inappropriate to the post. What is described is not commissioning, nor is it anything to do with the management of offenders. Therefore, if you introduce a confusing title, you will confuse anyone who wonders what the post is actually all about. Therefore, I hope that the opportunity will be taken to drop this title and come up with something more appropriate such as ombudsman, which is what the job is. I remind the Minister that there is a long history about the requirement for this post to have statutory status. In 1979 when the report by Mr Justice May on the running of prisons was brought to Parliament, it was agreed that there should be a restoration of independent inspection, which had been suspended since 1877.
That examination found that three aspects needed to be independently inspected: efficiency, propriety and the investigation of grievances. In the event, inspection of efficiency and propriety was accepted as part of the role of the Chief Inspector of Prisons, a post that was made statutory, as it has remained. In 1994, it was agreed that a separate post should be established for the investigation of grievances and the ombudsman was appointed. Ever since, successive ombudsmen have tried to have that post put on to a statutory basis in exactly the same way as the Chief Inspector of Prisons post is, because it came from the same stable. I am unhappy about the fact that we are having yet more delay, on top of 13 years’ delay since the appointment of the ombudsman, in the post being put on a statutory basis. I cannot see why there needs to be further delay.
One aspect in what is described threatens the independence of the ombudsman, not just in his appointment but in the eyes of those people whose grievances he is investigating; the fact that he is seen to be too close to the Secretary of State affects his objectivity in their eyes. In his evidence to the committee in the other place, the ombudsman suggested that one way of getting over that problem would be to give him status similar to that enjoyed by the Independent Police Complaints Commission. I hope that, in conducting this review, the Minister will take account of that and not just go through the motions in looking at what currently exists in the Bill.
We are in two minds on this. We broadly welcome the establishment of a review to rethink this area. In light of previous legislation, it is more important that we should rethink than go forward with something that is not entirely satisfactory and I appreciate the fact that the Minister has chosen to revisit the matter. However, we should like to put two or three things on the record, in light of the comments of the noble Lord, Lord Ramsbotham. It is vital that the person, whatever he or she is called, be visibly independent, particularly in relation to—I know that the Minister has mentioned some of these things—the budget, the staff, the relationship with the Secretary of State, investigatory powers, directions from the Secretary of State vis-à-vis investigations and the way in which reports are laid in the public domain. Finally, the Minister talked about bringing forward fresh legislation forthwith. Does he expect to do so this side of the next Queen’s Speech?
I welcome the proposal to remove these clauses from the Bill in the circumstances, but I agree that it is a pity that we have had to do this. I should like to say a few words to remind the Minister why these measures are important. In its December 2004 report on deaths in custody, the Joint Committee on Human Rights noted that the evidence that it had received showed widespread concern that the Prisons and Probation Ombudsman was not on a statutory footing and that this failure would undermine the independence and perception of independence of his inquiries into deaths in custody. Evidence from the Minister to the committee at that time confirmed that the Government accepted the need for the post to be on a statutory basis and agreed that that should be accomplished as soon as possible. That was pre-December 2004.
The Joint Committee on Human Rights recommended in paragraph 332 of its December 2004 report:
“As a matter of priority parliamentary time should be set aside to bring in legislation giving a statutory basis to the Prisons and Probation Ombudsman, and providing him with investigatory powers equivalent to those of the Independent Police Complaints Commission. Until such a statutory basis is provided, investigations by the Ombudsman are unlikely to meet the obligation to investigate under Article 2 ECHR”.
In the debate on the Corporate Manslaughter and Corporate Homicide Bill and the matter of deaths in custody, the noble Baroness, Lady Ashton, made a commitment, and agreed that the offence of corporate manslaughter,
“ought to be capable of applying to custody”,
and before that was to be done the Government would find an opportunity to put the ombudsman on a statutory footing, which would,
“strengthen the investigation of deaths in custody in three ways. First, there will be a formal duty on the ombudsman to examine all deaths within his remit”.—[Official Report, 22/5/07; col. 575.]
She said that he would be empowered to decide the scope of investigations and procedures, and that investigations and recommendations would be expected to cover management and wider policies where he deemed it appropriate. Secondly, the noble Baroness promised that there would be new High Court powers to obtain evidence as well as a clear foundation for working with other ombudsmen where appropriate. Thirdly, she indicated that the statutory basis would strengthen the ombudsman’s independence from government.
The noble Baroness went on to say that the Government’s intention was to,
“find a suitable Bill in this Session or, if necessary, the next”.—[Official Report, 22/5/07; col. 576.]
Since we are now in the next, I hope that the Minister can assure us that he has a real sense of urgency about this proposal.
I rise in—despair is not exactly the word I am looking for, but it is not a million miles away from it. An enormous chunk of this Bill has now been taken out, which had it been properly thought through in the beginning would not have to be taken out. Those of us on the Joint Committee on Human Rights see an enormous chunk of this Bill as being in urgent need of amendment, parts of which were not discussed in the House of Commons. Is this really how legislation should be presented to Parliament? It seems to fit exactly into the words of the general confession:
“We have left undone those things which we ought to have done”—
I note that the Bishops are listening—
“And we have done those things that we ought not to have done; And there is no health in us”.
I shall assist my noble friend, if I may, by assuring him that it is even more complicated than that. Of the 50 or so clauses that have been taken out, 25 were there at the beginning and 25 were among those brought in on Report in another place that were not discussed, and which are now being removed in this House without further discussion.
I remind the House that Ash Wednesday is tomorrow if noble Lords wish to pursue the general confession.
I underline the sense of urgency on this matter and the importance of the statutory independent basis of this. The Minister will be aware that Bishops have rights of entry into prisons and often have close relations with their local prisons. In our part of the country we have been in the local press with regard to deaths in custody recently, and some important aspects of this issue need to be tackled, not least the fact that those who succeed in taking their own lives in prison are but the tip of the iceberg of the attempts made to do so. I am concerned about the morale of staff in prisons in relation to these matters. That is why the statutory basis should be independent. There needs to be clarity of structure and a proper sense of accountability, so that those who are managing our prisons in their present state of crisis have a sense that they are getting proper public support.
I think that all your Lordships are agreed that a statutory basis for this post is crucial; but it has to be the right statutory basis. When Lord Gardiner, the then Lord Chancellor, spoke in 1967 to your Lordships’ House about the establishment of the Parliamentary Ombudsman, he stressed two matters. The first was the ability of the new post to enhance Parliament's capacity to scrutinise the Executive. The second was its capacity to secure remedies for citizens treated unjustly by a public body. More recently, the Council of Europe has emphasised the importance of ombudsmen to the promotion of the rule of law and the protection of human rights.
Crucial to those objectives is the independence of the office of ombudsman. The problem is that under the Bill’s provisions, which the Minister now seeks to withdraw, the office is not independent. That is exacerbated by the fact that the citizens over whom the ombudsman will have jurisdiction are incarcerated by the state.
There are a number of reasons why the position is not independent. The funding of this new office is to be determined by the Secretary of State, not by a levy on those investigated or by money supplied directly by Parliament. Indeed, the staffing arrangements are subject to the discretion of the Secretary of State. The office holder is to be accountable to the Secretary of State, not directly accountable to Parliament. The office holder will be under a duty to investigate any matter which is the subject of a request by the Secretary of State, who will be able to direct him as to the scope of that task. The annual report is not even being sent directly to Parliament; it goes to the Secretary of State first and the Secretary of State has discretion on when it should come before Parliament. All those matters must be addressed by the Minister during the period that elapses between now and when the Government choose to bring the matter back.
I am sure that the Minister will have received, as I have, a letter from Mr Brian Coulter, the Prisoner Ombudsman for Northern Ireland. Along with the measures for England and Wales, an additional part deals with Northern Ireland. I shall be most interested to hear from the Minister what he thinks the position will be there. The defects of the position for Northern Ireland are exactly the same as those for England and Wales, but there is an added complication for Northern Ireland, which is the issue of devolution. At some stage, the powers and the office with it will be devolved and consideration will have to be given in Northern Ireland to what kind of arrangements they want there. What can the Minister tell us about that? What forecasts about the timing, context and nature of the devolved arrangements has the Minister made in drafting that part? We are all agreed that it should be statutory, but that is only the beginning.
I thank Members of the Committee and reiterate that I will take very careful account of them in taking this work forward. I am afraid that it is sackcloth and ashes. On scrutiny, I acknowledge that new clauses were added in the Commons; I have no doubt that your Lordships will want to give them particular attention when we come to debate them in due course.
Whatever comments have been made about the current processes and rules under which the ombudsman works, on behalf of the Government, I place on record my admiration for the work of the current ombudsman, who I believe has done an excellent job. As noble Lords said, the Government are as committed as ever to putting this on a statutory basis. I want to make it absolutely clear that we are committed to establishing this office by statute. The question then arises of when we will be able to do so. I cannot give a definite date. However, we regard this as an urgent piece of business to be undertaken. We expect the review outcome to be produced later in the year and then to have an early opportunity to introduce fresh legislation. I cannot go any further than that today.
There have been questions about independence, the Secretary of State’s ability to ask the ombudsman to take on certain functions, and about direct accountability to Parliament. I have listened. We thought that we had got it right in the Bill. It is clear that many comments have been received, and we will consider those very carefully. The noble Baroness, Lady Stern, was right to mention the Corporate Manslaughter and Corporate Homicide Act 2007. I reassure her that we are committed to statutory provision.
I am sorry to interrupt the Minister. There is one thing that I did not say. It is refreshing when Ministers actually listen to Parliament, especially when someone has—to use a slightly diverse literary tactic—blundered. One ought to thank the Government for listening to Parliament, even when they have made a monumental mistake.
There is always a “but”. But since it is very rare for the noble Earl to commend the Government, I will take that as a half-commendation at least. Something will come of it. I reiterate that we believe it should be put on a statutory basis. We want to get it right and we are determined to do so.
On Northern Ireland, I cannot give the noble Lord a definitive answer. We are considering how best to take this forward in the context of devolution. Our thinking currently is to continue work on it which, if appropriate, could then be transferred to the devolved department of justice. That seems the best way of doing it, in addition to consulting the relevant interests in Northern Ireland. It is a matter that my officials have considered. They are pondering how best to take it forward to most effect. The Northern Ireland ombudsman’s comments were one of the influences in making the decision and played an important role in our asking the House to withdraw the relevant clauses.
As for the proposed title, I know that the noble Lord, Lord Ramsbotham, has never liked it, and we will take note of that. “Commissioner” is a very honourable title. Although we all talk about the Parliamentary Ombudsman, in statute the title of that post holder is “commissioner”. The same applies to the Health Service Commissioner and a number of other ombudsmen. Although I understand what the noble Lord says about management of offending, that is perhaps—to take us back to the Oral Question earlier today—part of the integrated approach that we wish to see. However, regardless of whether it is in statute or is only generally recognised, we want a title in which people will have confidence. I will take that point away too.
I think that I have answered most of the points.
That is not in doubt; the question is how that would be best expressed in statute and operations. We considered that the provisions in the Bill would have assured that independence. However, we have received some comments suggesting that that is not the case. That is why we will reconsider. If the public, prisoners, their relatives and prison officers are to have confidence in the ombudsman, they must have confidence in that person’s independence.
Further to the point about the independence of the ombudsman/commissioner, it follows from what the Minister was saying that if devolution were to occur in May, as the Government hope, they would then transfer responsibility for this to the Administration in Northern Ireland. If that happens, what steps will the Government take to ensure that any commissioner subsequently created in Northern Ireland would be wholly and truly independent? Or will they simply abandon that principle and rely purely on the Northern Ireland Assembly?
I am going to duck that, to a certain extent. As I said, we are still considering the matter. It seems best, given that we are only in the early part of February, to continue the work. The other option is to put Northern Ireland to one side and await events. If we carry on with this work, the necessary discussions between ourselves and Northern Ireland can then take place to ensure that we produce something effective. However, I take the noble Lord’s point and will ensure that it is considered.
If the Minister is going to duck that, why on earth did the Government introduce the Northern Ireland provisions in another place? They were part of the vast number of clauses that were introduced but not discussed in another place. The noble Lord is now removing them but also says that he wants to duck the issue.
I said that I wanted to duck giving a precise answer because we have not reached a conclusion. There is complete consistency in what I have said. Given that we wish to seek the House’s approval for withdrawing those clauses from the Bill, it makes sense to take forward detailed work in the light of developments in Northern Ireland. That is all.
I fully accept that and I fully accept that the noble Lord is in what he describes as sackcloth and ashes mode, which is very appropriate for Shrove Tuesday. I am simply saying that introducing all these provisions in another place, not discussing them there and then withdrawing them here seems a very funny way in which to legislate.
The noble Lord will have his fun. I have explained why we are seeking the Committee’s approval for withdrawing these clauses. I think that this debate has been very helpful in identifying those matters which we need to consider further, including Northern Ireland. On that basis, I hope that we might be able to proceed.
1: Before Clause 1, insert the following new Clause—
“PART A1PrinciplesPrinciples of the youth justice system
(1) Section 37 of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) is amended as follows.
(2) Before subsection (1) insert—
“(A1) The youth justice system shall ensure that it carries out its functions in accordance with the following principles—
(a) the best interests of the child shall be the paramount consideration,(b) arrest and deprivation of liberty of a child shall be used only as a measure of last resort and for the shortest possible time, and(c) the child shall at all times be treated with humanity and respect for his or her inherent human dignity.””
The noble Baroness said: The amendment arises from a concern that in the part of the Bill dealing with youth justice we shall find ourselves dealing with technicalities and will not have an opportunity to ask the Government some basic questions which will help us later on. For example, where do these proposed changes fit in? What is their contribution to the Government’s vision of the system? Indeed, what is the Government’s vision of the system? How is it evolving as the joint unit between the Ministry of Justice and the Department for Children, Schools and Families develops?
This amendment sets out a statement of principles to go at the beginning of the Bill, which would make it clear to all those working in the system what they were supposed to be doing, and how the Government propose to hold them accountable for compliance with the UN Convention on the Rights of the Child, to which the Government are a signatory and which Ministers have, therefore, committed themselves to upholding. I am very grateful to the Standing Committee on Youth Justice for the excellent work that it has done on the Bill and for its support for noble Lords in preparing background material.
For various reasons, we have seen in the past few years a drift away from the basic principles that should govern a youth justice system and that are the reason why we have a distinctive system which is not the same as the system for adults. Children are not adults; they are still developing and still very vulnerable. It is undeniable that our youth justice system has gradually moved in a direction that takes it a very long way from the mainstream of systems in comparable countries. I hope that recent developments, such as the involvement of the Department for Children, Schools and Families, will start a countervailing movement back to the norm.
We have indeed gone a very long way from what is seen as normal in most countries. Our age of criminal responsibility is extraordinarily low. At a meeting chaired by the noble Baroness, Lady Massey, in this House on 24 January, we heard that in Denmark, Germany and Spain, the age of criminal responsibility is 15, 14 and 14, respectively. I must declare an interest as that meeting was arranged by the International Centre for Prison Studies at King’s College, where I have a position.
The consequence of the practice elsewhere is that, for all children under those ages in those countries, the measures taken are covered not by criminal jurisdiction but by welfare law. Those countries have various types of government; the approaches are not related at all to Governments of one particular colour or ideology. They are the mainstream, normal way of dealing with children in trouble. I know that increasing the age of criminal responsibility would be difficult because it would be misunderstood as meaning that no action could be taken against children who are under that age, but that is completely wrong. I therefore hope that we shall in due course have a fruitful discussion on proposals to be made by the noble and learned Baroness, Lady Butler-Sloss, to deal with children under 14, where appropriate, in the family court.
We in England and Wales are also remarkably out of line in using custody for children, and particularly in using it as punitive custody rather than as custody for care and protection. We were all saddened last year to read the inquest verdicts on two boys who died in custody, one aged 14 and one aged 15. We know that in most similar jurisdictions they would not have been in a place of punitive custody, if they had been locked up at all. They would have been in a place akin to local authority secure accommodation that is part of the system of caring for children and they would not have died. We are out of line in using the criminal process to deal with myriad types of behaviour that are quite common among children and young people, behaviour which they grow out of or which can be dealt with more effectively in other ways. We are way out of line with other jurisdictions.
We are also way out of line with our international human rights obligations. The basis of these obligations, and particularly of the UN Convention on the Rights of the Child, is that children should be protected from harm and given the chance to grow up into healthy adults who contribute to society. The Minister will be aware that last April the Committee on the Rights of the Child issued a general comment—a form of detailed guidance setting out what is expected of countries that have ratified the convention in their juvenile justice systems. The committee sets out its view that,
“a minimum age of criminal responsibility below the age of 12 years is considered … not to be internationally acceptable”.
The committee also sets out part of what it means to make the best interests of the child the guiding principle. It says:
“The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice (repression/retribution) must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety”.
I am eager to hear the Minister’s reply to the amendment, because I wonder on what grounds he will resist it. Will he oppose it because the Government wish to take actions that are against the best interests of the child? I doubt it very much. It is clear that making the best interests of the child paramount does not mean that we cannot pay regard to public safety. Clearly it is not in the best interests of a child to be violent to others or to make the lives of everyone in the neighbourhood a misery, but when we take action to stop that, surely we should take actions that help the child to grow up healthy and non-criminal. That is what “in the best interests of the child” means. Can the Minister really oppose having such a principle in the Bill?
Secondly, should we not try to keep children out of the system, and out of custody, as far as possible? Would the Minister not agree with that, too?
Thirdly, I cannot imagine that the Minister envisages any situation in which it would not be right to treat a child with humanity and respect for his or her human dignity. I look forward to debating the amendment, and I beg to move.
If no one else is going to speak, may I say how sympathetic I am to what the noble Baroness has said? Do we not need to say in this House and in Parliament that in this nation of ours we have far too many children and young people in custody? Surely the aim of legislation should be to assist us to turn that culture around and move in a new direction. The issue was raised in the report of the Joint Committee on Human Rights, which says:
“We note the Government’s statement that it strongly believes that custody for young people should only be used as a last resort. However, we note that in the Government’s response to our predecessor Committee’s recommendation, it said”—
and so forth. It continued:
“As presently drafted, however, there is nothing in the Bill to require that a YRO with ISS be the first resort, before custody, other than in exceptionally serious cases … In our view, such a requirement would be an important additional safeguard to ensure that custody of children is only used as a last resort”.
That is why the amendment raises an issue that the Government need to address.
For a number of years, my wife had professional work in the field of children held in custody. We know that the behaviour of some children and young people is deeply challenging to society. The easy thing to do, dare one say, is to whisk them out of society rather than think of other means of addressing the issues. We also know that custody is the place in which the highest safeguards have to be set out if the interests of children who have been locked away are to be protected.
I shall be very interested to hear the Minister’s response to the amendment. It is important and it will be good to hear about the Government’s commitment to moving in these directions.
I rise warmly to support this amendment. In doing so, I hope that the Committee will forgive me if I make a personal observation. We are fortunate to have in our midst someone with the experience of the noble Baroness, Lady Stern. She has unrivalled experience in her leadership of Nacro and her work since. I usually sat next to her when we both served on the Joint Committee on Human Rights and she always struck me as one of those people who has learnt so much from life that she goes on learning and responding to what she learns. She often helped the committee to reach its conclusions because of the wise way in which she approached matters. For that reason, it is terribly important to take anything she says in our deliberations very seriously indeed.
I want to make a couple of points. First, either we believe that the principal and overriding objective of our penal system should be rehabilitation, or we do not. Of course the public must be protected, and the way some of the more irresponsible press suggests that if you are emphasising rehabilitation you are somehow not taking the job of protecting the public seriously is really quite iniquitous. Those of us who emphasise rehabilitation take the protection of the public very seriously—not only in the immediate situation but in the long term, which lies in the realm of successful rehabilitation. What disturbs me is that there is a great deal of evidence that children and—dare I say it without diverting too much attention?—young people caught up in the system as it is at the moment begin a life of criminality. The system institutionalises their exclusion from society and their criminalisation. That is not the case for all, but for a very considerable number. That is not only wrong, but stupid because it works against the interests of society and its protection. This amendment is timely in the sense that it gives us an opportunity to think about all this. I say that because for no one is it more important to make rehabilitation a priority than it is for the young.
The second point is that I do not for a moment doubt the good intentions of Ministers to make imprisonment a last resort, as the right reverend Prelate has just said, but I suggest that it is important always in public policy to examine the difference between intention and what actually happens. If we are going to make intention a success, it has to be explicit from the outset and it has to be spelled out whenever the opportunity presents itself over and again.
Perhaps I may conclude with just two anecdotal examples. It can be dangerous to use anecdotal evidence because it can be very untypical, but sometimes such evidence enables us to see more clearly the underlying issues we are facing. I have mentioned the first in Joint Committee and at Second Reading. In my nine years as president of the YMCA, I became particularly interested in the first-rate work it was doing in detention centres and prisons. I do not believe in being only theoretically informed so I went to see this work in several prisons and detention centres. The stories that the staff were telling me over and again of the young people with whom they were dealing, which were beginning to come out in the context of the real and deep relationships that had been formed, were a terrible reflection on society. It was difficult not to come to the conclusion that many of the children caught up in the system were victims themselves. Their anti-social behaviour of course cannot be tolerated—the noble Baroness made this point—because it can create mayhem and absolute hell on earth for some of the communities in which the delinquency takes place. No one wants to sideline that, but it would have been quite extraordinary if they had not started to behave in that way because of the reality of their lives.
My second anecdotal story and my final point relates to a dear friend of my family and a close colleague in my political life, the late Baroness Lester. She was a very close friend of us all in my family and godmother to one of my children, and if I refer to her as “Joan” it brings her alive for me. When Joan was a Member of Parliament, I remember her coming to our home in an uncharacteristic state of real distress. Joan was experienced in life and not the kind of person normally to get distressed, but she was really in a state. In the context of her responsibilities as a Member of Parliament, she had been to visit one of the children responsible for the appalling and dreadful murder of James Bulger. I shall never forget what she said: “What is so terrible about this situation is that the child involved in the murder has never been loved in his life”. In view of all her work with children, this had become abundantly clear.
Just as I have said that we either believe in rehabilitation or we do not, we either understand that children are children—wherever they are, whatever they have done—or we do not. If we understand that, we need to spell out, not only by exhortations and undertakings but in the detail of our legislation, that they shall at all times be treated as children, and that paramount in our considerations should be the best interests of the child. As the noble Baroness brilliantly put it, by having the best interests of the child in mind one will be serving the best interests of society.
I, too, totally support the amendment and the powerful way in which it was moved by the noble Baroness, Lady Stern. When she says that children are not adults, it goes to the core of the situation. They are not truncated adults; they are a totally different species and, in their own right, deserve to be treated in a wholly specific way.
My submission is that nothing in the amendment would in any way frustrate or embarrass the administration of justice to young people. For example, the words,
“shall be the paramount consideration”,
echo those in Section 1 of the Children Act 1989 that when dealing with young people—and a young person, for that matter—the “paramount consideration” shall be the interests of the child. Regarding the attitude of the courts towards young people, I cannot remember who the learned judge was, but he was a figure of immense distinction, who said, in giving a judgment of the Court of Appeal in a youth case some 30 years ago: “Society has no higher interest than the reformation of a young man”.
There are young men—and indeed children—who are very dangerous and have to be in custody, but they are a small minority. I make no apology for reiterating what I have referred to on more than one occasion in this House over the past few months: we incarcerate more children and young people that any other country in western Europe. I do not have the exact figures with me but I have previously given them to the House. I remember that we incarcerate more than Germany, France, the Netherlands and Norway all put together. It has been said about our rates of incarceration of adults that we are catching more of them, but there can be no question of saying that in this regard. That is not the reason for these figures. The reality of the situation is that we have an attitude that is harsher, less realistic and less humane than those of judges in other countries.
The noble Baroness, Lady Stern, raised the question of how high the limit should be with regard to criminal responsibility. I make the point, with some pride, that we already went partly down this path 40 years ago when the Children and Young Persons Act 1969 came into force. There was provision in that Act for the age of criminal responsibility to be raised as high as 14 by Order in Council. Exactly when that was removed I do not know, but I think it was some six or seven years thereafter.
The amendment is practical, humane, intelligent and entirely justified. In essence, it says nothing more than what has already been said by Parliament and the courts in this context.
When the Minister comes to reply, will he take the opportunity to state the Government’s intentions regarding the extension of restorative justice to children and young people? At the moment we have restorative cautions, which work reasonably well on the whole, but will the proposed youth rehabilitation orders, which we are coming to in the Bill shortly, be able to include restorative provisions? To stimulate the Minister’s imagination, if I can, I tell him that most children most of the time want to be useful. Pretty well all children easily understand what it means to put right the harm or damage that they have done.
I gladly added my name to the amendment alongside those of the noble Baroness, Lady Stern, and the noble Lord, Lord Judd, who always have important things to say to us. I add my voice to theirs, for this is a very important issue for us to discuss at the outset of the Bill. It should help to clarify the overarching principles which inform the shape of the Bill and Government’s vision for the way in which we deal with children who offend in this country.
It was widely commented on all sides of the House at Second Reading that the Bill seemed to lack a theme or any such overarching vision, so this is perhaps the moment to try to tease out what should guide our thinking and practice when we legislate for those children we are so concerned about, in the interests of justice, the children and our society.
The distinction between principles and purposes means that the former are philosophical and the latter more practical, but they are closely intertwined. The Bill refers to purposes but nowhere to principles. It is clear that at every international level where principles are laid down—I have in mind the UNCRC and the Beijing Rules, in particular—the one overriding principle is that the welfare and best interests of the child must be the primary consideration. Indeed, Article 3 of the UNCRC states that it is an obligation.
When the Bill considers the purposes in sentencing, the fact that this principle is not explicitly stated as being at the heart of the youth justice system gives real cause for concern, particularly because so much flows from it in terms of decisions to be made in youth justice and children in trouble. It is a glaring omission. It should not be an add-on, nor a purpose along with others, but the overarching principle.
Public attitudes to children are in large measure influenced by our sentencing policy, particularly when we are dealing with children in trouble. We have worked very hard in this country during the past few years on provisions for children and families, and I commend the Government for that. However, something seems to happen when troubled children become children in trouble—and attitudes do change. We then become, through many of the agencies which deal with children and young people, far more punitive, retributive and demonising of young people, which is reflected in particular in our attitudes to policing, sentencing and even schooling in the management of our difficult, disruptive, disturbed and disturbing youngsters. The result is that we are developing a far more alienated, demonised and difficult population of young people, who we then forget are still children like our own.
Children, as has already been affirmed today, must be treated differently from adults. They are so physically, psychologically and experientially. The Beijing Rules require that the juvenile justice system emphasise the well-being of the juvenile. The Children Act 1989 can show us the way, with, for example, the child-in-need assessments, a welfare checklist and a common assessment of each young person. When we talk generally about custody being a sanction of last resort for all offenders, it is even more acutely true for children and must be for the shortest possible time. We will discuss in detail during the passage of the Bill how this is not, in reality, the case in Britain today, but we must start by at least affirming this principle in the Bill. Ultimately, we are talking about a profound shift, not simply in processes and procedures, but in the attitudes of all of us, including the authorities and the courts.
I remind the House once again that, in another part of the United Kingdom, with another legal system, no child prisons exist as they do in England, and children do not enter the criminal justice system until they are 16. In Scotland, we have the children’s hearings systems and the children’s panels, which see and seek to meet the needs of any child in trouble as they address their deeds. Here I declare an interest; I was a children’s panel member for eight years and participated in a system of which we are very proud. There are also some very impressive, welfare-oriented, secure children’s homes, all of which we can learn from. The records in England show that in the STCs—our child prisons—children have died from restraint-related incidents; one has even died in the course of being restrained. These children are, as we constantly remind each other, the most deprived in our society and their reoffending rate is the highest of all.
We have already heard from the noble Baroness, Lady Stern, how shamefully we compare with other countries in our treatment of young offenders; but we do not need comparisons to know that this record is totally unacceptable and is a million miles from treating children
“with humanity and respect for his or her inherent human dignity”—
the last principle in the amendment.
Finally, I add my concerns about what I call the principle of probity. If we indeed legislate for a real shift from prison to an expansion of community-based penalties—which is, I think, the presumption of the Bill—that provision must exist. Yet today all the agencies in the community that would be expected to deliver these alternatives, including probation and many other agencies, have been required to cut their current provision—far less expand it—with all the planning, manpower and huge costs that that implies. Can the Government reassure us that all that we are legislating for in the Bill can be delivered and that the balance between prison building and community investment is reversed? Otherwise, we are merely building castles in the air and deceiving ourselves and the country.
I shall refer to this excellent brief from the Standing Committee for Youth Justice, which shows that rehabilitation cannot be what the Government are achieving. Eight out of 10 children reoffend. We lock up 23 per 100,000; the Finns lock up one-fifth of one child per 100,000. Clear-up rates have been stable since 1995 and 42 per cent fewer people report being victims of crime. However, while 100 under-15s were convicted and sent to prison in 2002, that number has increased to more than 800, only 50 of whom were serious offenders.
What on earth is the point of sending another 650 children to the nick, when it seems to have had no effect whatever on recidivism rates and has made absolutely certain that, of those 650, only 120 will not reoffend. This cannot put the interests of the children at heart but those of tabloid headline writers. Of course one concedes that children can be toerags and disgusting. My late mother said that when I was 15 I entered the “awkward age”—or rather, as she had some pretension, “l’age bête”—and until the day she died aged 75 she never conceded that I had left it. We cannot leave the point that there are little horrors about, but they need more care and attention to try to stop them being little horrors. This should be put in the Bill and with a glad heart, I support my noble friend—I say that advisedly—Lady Stern.
I wholeheartedly support this amendment. It has been moved brilliantly by my noble friend Lady Stern, and all the contributions have underlined different aspects of why it is so crucial. I have been involved with children and courts for a considerable period of my life and know how effective some methods can be—and equally, how totally ineffective others can be. This Bill is an attempt—but a muddled attempt—to begin to make things better and to make it clearer that there could be a range of other activities and diversions. I suggest that what the Bill needs, above all, is an overriding, overarching principle. As the noble Baroness has just said, you need something through which you can interpret what you can do in the best interests of that child. The amendment mentions the best interests of the child and that
“the arrest and deprivation of liberty of a child shall be used only as a measure of last resort”.
At a later stage, we shall look at the age threshold for a child to be sent to an adult prison. All that forms the background to what we are talking about.
Community-based sentences are clearly the future. We have to admit that legislation passed by this Government has increased the number of people—women, children, men—who have been sent to prison. The system has become far more punitive than necessary and far harsher than the one that worked in the past. One understands the desire of all Governments to appear—and be—effective in preventing violent crime. Community-based sentences will help the Minister and the Government to achieve their aims, which are increasingly rehabilitative and aimed at trying to save so many children who, if worked with properly, can grow up and come out of offending, rather than fall into this horrendous reoffending pattern that we have seen, particularly with young offenders, where something like 96 per cent reoffend within a short period.
It is always a privilege and an education to follow the noble Baroness, Lady Stern—as the noble Lord, Lord Judd, has said. It is also a privilege to listen to the wisdom and humanity of the speakers in this House on this important issue. I was very interested that the noble Lord, Lord Judd, mentioned one of the two boys involved in the Bulger case. I also went to see one of these boys and discovered, through talking to the psychologist and psychiatrist who had looked after him through the trial, that, although he was 10 at the time of the incident, his developmental age was four. In order to deal with him, she had to act as if he was four and take toys from her four year-old son to engage him. She said, “I have never stopped wondering how this country could put somebody with a developmental age of four into a High Court situation at the age of 10.” I am very glad that the issue of the age of criminal responsibility has been raised again, because I think that it is a disgrace that this country continues with that particular situation.
I strongly support the amendment because it reflects my experience as Chief Inspector of Prisons. I found that an awful lot of what was put out by government was prepared by officials who had absolutely no experience of what they were talking about and therefore no idea of the principles and standards that they needed to underpin what they said. As Chief Inspector of Prisons, I produced a document, which I called Expectations, setting out precisely what those principles and standards should be for all the prison rules. Having prepared one for adults, we then did another for children and young people, because they were very different. The guide and leader of that process was a remarkable man, who was my deputy at the time. He had governed a young offender institution and, before that, had been the housemaster at a borstal. He said that borstals were positive places, where those sentenced at Her Majesty’s pleasure had to earn their way out and the staff had to help them to do that. He clearly came away with the idea that there was a need for principles to govern the justice.
We have just been taking the Children and Young Persons Bill through this House. I have been struck by the fact that the contributions to this debate so far are very similar to those on the other Bill, which concerns another group of people of the same age going not into custody but into care and preventing them getting involved in the criminal justice system. I could not help wondering why there was a disconnect, with similar people with similar needs being dealt with by different ministries and different Bills. Why is that? It seemed to me symptomatic of this monster Bill, which I can only describe as the “and another thing” Bill because it looks as though everyone has dumped their in-tray into it and added a mass of incoherent subjects. However, if there is one subject that has coherence, it seems to be youth justice.
At the moment, I am also involved in helping a number of people to come up with ideas for an academy. It is an attempt to produce a new style of establishment for young offenders and young people where those who are homeless, those who are sentenced to community work and those sentenced to custody can come together on one site. There will be a custody element with something called a “foyer”, of which there are 100 in the country, dealing with the homeless, and there will also be people from the community so that the young people can be given work, education and other treatment locally on site so that they do not have to go too far.
Guiding this academy have been my former deputy—the person whom I mentioned earlier—and another former young offender establishment governor, who said that, before going any further, the principles of the establishment had to be clearly set out. To complement what the noble Baroness has proposed, I should like to read out the core principles that these two experienced people have come up with. They illustrate what is badly needed—coherence in the way that youth justice is administered at present and which is missing from too much in life. The core principles are:
“The achievement of continuity of experience with family and friends, in education, work training and health care … Connecting effectively with as wide a spectrum as possible of people, agencies and organisations in order to create positive developmental experiences for each young person … Encouraging dignity and respect in relationships by valuing difference, cultural and spiritual interests and in creating space for self expression … Offering differential responses and experiences that reflect age, maturity and developmental needs … Provision of leadership that embraces education and personal challenges to reduce dysfunctional and delinquent behaviour, manages those synergies that most contribute towards fulfilling the purpose of the academy, generates and sustains a narrative of creative expectation and responsible practice, provides a resilient and continuous improvement culture in work and relationships”.
Added to the voice of experience and wisdom, which is behind the amendment, I think that the management of youth justice in this country would be better if these principles were clearly laid down for the people who are responsible for producing the legislation.
I entirely agree with what the noble Lord, Lord Ramsbotham, has just said and I feel immensely privileged to have heard it. It tackles the only part of the amendment that I have any trouble with, which is proposed new paragraph (b). Deprivation of liberty has a function—at least to the extent that my noble friend Lord Onslow and I experienced it in our youth. You need to manage the peer group of some of these young men. In particular, a lot of young men look to their peer group for socialisation and for a lot of what they get out of life. They value themselves according to the way that they are looked at by their peer group. If a person has got into the wrong peer group, you need to find some way of breaking that. To put them into a situation where their peer group can be managed is important. If that is to succeed, you then need a way to take that experience and translate it to the lives of these children.
That is one of the main difficulties in having such a sharp divide between custody and life outside. They learn to survive inside; if it is a good place, they may well develop some good habits inside, but all their old mates and all their old ways are waiting for them when they get out. With something graduated, as the noble Lord, Lord Ramsbotham, has just described, there may be a real hope of using custody as a means of breaking a bad cycle with a child and then letting that child back out into their own community in such a way that they can take that learning with them. At least it is worth trying.
It is wonderful to listen to these conversations, but I have great doubts about whether the Government have any real interest in rehabilitation. In the main prison estate, they are expanding numbers and cutting budgets. Where do they think those budget cuts fall? On security? No way. Prison governors are judged by whether people escape or not. The budget cuts are falling on education and time out of cell. Prisoners are spending more and more time in front of television. If daytime television is a way to learn better habits, I do not know what the Government wish us all to become.
An emphasis on rehabilitation takes money, time and effort, which is not what the Government are giving the Prison Service. It would be wonderful to live in a world that is governed by the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham, but we do not have it at the moment.
It is a pleasure to listen to the noble Lord, Lord Lucas. He will be aware that the high level of churn in the youth justice system, meaning that children are kept a long way from where they are going to be resettled, makes it difficult to make that transition effectively. As the head of a teaching unit in a secure training centre said to me, “When these children leave here, it is as if they were walking off a cliff”. There is no follow-through.
May I ask three questions of the Minister? First, why is there this discrepancy between the practice of child custody in this country and that of our neighbours? Secondly, there have been a number of deaths of children in custody, but there has not been a single death of a child in a local authority secure unit—one of the small local units which have been discussed. If the amendment is redundant and the best interests of the child are already at the forefront of the Government’s mind, why has their policy not been to expand in this area? Is not the Minister concerned that so many 16 and 17 year-olds are kept at 60 young people to a wing, with just three officers managing them?
My final question relates to a recent conversation with a German forensic criminologist. I paraphrase, but he said: “We admire the research in the United Kingdom on outcomes for children”. I hear this from many quarters. We know in great detail, in a way that continental countries do not, how poorly, I am afraid, our most vulnerable children often perform. He says that he uses the evidence in speaking to legislators and authorities in Germany. He says to them, “Look, the more you imprison people, the more they reoffend. If you use community sentences, they reoffend less”. Is the Minister persuaded by the argument that an overheavy use of custody actually puts the public at more harm, as it encourages recidivism? These matters need to be thought through. I support the drive of the amendment and look forward to hearing the Minister’s response.
I rise to respond to the amendment so brilliantly introduced, as the noble Baroness, Lady Howe of Idlicote, said, by the noble Baroness, Lady Stern. I do not think that anyone in the Committee, least of all the Minister, would dissent from any of these three principles. As the noble Lord, Lord Elystan-Morgan, said, that the best interests of the child should be the paramount consideration has been part of our legislation since 1989. The idea that the,
“arrest and deprivation of liberty of a child shall be used only as a measure of last resort and for the shortest possible time”,
has appeared in countless official reports and is a standard part of guidance to magistrates and judges. Proposed new paragraph (c) states that,
“the child shall at all times be treated with humanity and respect for his or her inherent human dignity”.
Well, we are signed up to many international conventions that require us to follow this line.
If this measure were to reach the statute book, its quality might be added to by a provision (d) that dealt with reoffending, a point emphasised by the noble Lord, Lord Judd. As my noble friend Lord Onslow said, we incarcerate more children than any other country in western Europe; he might have added that we do so less successfully than any other country in western Europe. At least 75 per cent of children in custody, as all your Lordships know, offend again.
The question is what the real value would be of having such a set of principles on the face of a statute. We all know that these principles are, as principles, binding on the Government. The problem is that the principles are undermined by the details of our legislation on youth offending. The Government’s great mistake has been to attempt to micromanage the judges. However well disposed a judge might be to the principles and however much he might wish to apply them to an individual in front of him, he is stuck with an obligation in an Act, a direction from the Lord Chief Justice or an obligation deriving from some other source to act contrary to the principles.
If these principles are to bite, the amendment tabled by the noble Baroness, Lady Stern, will need more than she has put in it. It will need an extra provision that allows the judge to override the specific details of the statute by the principles if he or she considers them appropriate in the circumstances. As all your Lordships know, judges can, when considering evidential points in criminal trials, exclude evidence if its prejudicial effect on the trial will outweigh its probative value. If the noble Baroness, Lady Stern, added to her amendment a similar power that a judge could override a specific statutory provision which went contrary to these principles if he considered that the principles in this case were overriding, that might have some real effect in our system.
Later we shall be dealing with the question of what happens if a youth rehabilitation order is breached. At present there is a certain flexibility that even if an order is breached three times within 12 months, a discretion can still be exercised by the court not to resentence. Often when someone is resentenced, he is sent to custody. What do the Government want to do now? They want to remove that discretion. If there have been three breaches in 12 months the judge is obliged to do it, and more children will end up in custody. Those principles, splendid though they are, will be of no help to the judge unless he can override the details of the legislation.
I am not saying that if the noble Baroness were to introduce an amendment with that kind of force that I would necessarily support it.
Surely the solution to my noble friend’s problem is for him and the noble Baroness, Lady Stern, to get together. The amendment could be withdrawn at this stage and they could jointly table an amendment on Report that would solve the problem that my ever observant noble friend has pointed out.
I am always extremely tempted by the idea of getting together with the noble Baroness, Lady Stern, and I would certainly be delighted to talk to her about this amendment. But I was feeding her with a thought on which she might like to capitalise later. The issue is about the detail of the Bill. Courts need enough clear water to apply those principles properly and they do not have that. It is not just this Government; previous Governments have been similarly obsessive about refusing to let go of the detail. How can any legislation anticipate a set of circumstances that may confront a judge? That is why the courts need as much discretion as possible. That is true for sentencing generally, but above all it is true for youth sentencing.
This has been a very interesting debate. I shall not intrude on the conversation between the noble Lord and the noble Baroness, Lady Stern, although no doubt we will see the outcome on Report.
I welcome the opportunity given to us by the noble Baroness to debate the general principles. She has been ingenious in how she has done it, and it will be helpful to our later discussion. I must reiterate that the Government see custody as a last resort. The reasons in the Bill, particularly in the first part, are entirely consistent with that approach. We believe in rehabilitation—clearly that has to be an incredibly important part of what we seek to do in the youth criminal justice system.
I understand the desire to set out principles at the front of the Bill. That is usually the desire of noble Lords for any Bill on which I have taken part. As it is now nearly 10 years since I first took a Bill through your Lordships' House, it is a debate that I have frequently witnessed. I did not agree with the line of argument of the noble Lord, Lord Kingsland, because I think that there will always be a balance in terms of discretion on sentencing. When we come to the breach question, we will discuss that further, where the Government consider that there needs to be some mandatory action to show people that there is a bite against breaches. However, the noble Lord pointed out one of the problems in putting a set of principles in the Bill without understanding what impact it might have on other legislation where principles are also set out. I know that that sounds like a rather techie detail, but it is an important consideration.
The Government's view is that the principal aim of the youth justice system is set out in Section 37 of the Crime and Disorder Act. The Act imposes duties on anyone involved in youth justice to have regard to that aim. There are issues about how the set of principles proposed by the noble Baroness would fit with that, and with Clause 9, which says that the principal aim of sentencing is the prevention of offending. I have no difficulty whatever in defending that as the rightful aim. We will debate later the question of the best interest of the child. That is clearly vital. There can be no question about that, but there are other factors to be taken into account, such as the interests of victims and the public—not in the pejorative sense, as was used in what was described earlier as media frenzy, but a reasonable view of the public.
I fully understand the concerns about the number of young people in custody. We have also heard from the Committee concerns about particular aspects of experience within custody. I respect those views.
Will the Minister find out—because I am sure that he will not have the answer now—the difference in reconviction rates between children in Finland, where the locking-up rate is 0.02 per 100,000, and the United Kingdom, where the rate is 23 per 100,000? That would surely tell us something. It would be a guide as to where we can get some information.
I do not have that information, and I would always caution noble Lords against too simplistic comparisons between different countries. In the end, we have to decide our own destiny, taking account of the experience of other countries. I am very happy to go away to see what information I can find and will be happy to circulate it to noble Lords who have taken part in the debate and put it in the Library of the House, if the noble Earl would like me to do so.
I accept that one is not comparing complete like with complete like, but I do not think that one is comparing apples with pears. It would tell us if we are doing it wrong, which, to my way of thinking, with 23 per 100,000 locked up as opposed to 0.02 per 100,000, we probably are.
I accept the noble Earl's point. It is difficult to make direct comparisons, but I will see what we can do. I also said that we are concerned about the number of young people in custody. We recognise that there need to be changes. That is what the first part of the Bill is about. We also recognise that we have to do more for those young people who find themselves in custody. There is no argument about that at all. However, we cannot ignore the need to address the concerns of victims and the wider general public to provide assurance that effective action is being taken to prevent and reduce offending by young people. The contrast between debates in your Lordships’ House and in another place is interesting. We have to take note of the views of elected Members in many regards, but I reiterate that we see custody as the last resort for young people. It is a requirement that sentencers must already ensure that where custody is imposed it is of the shortest length necessary and commensurate with the seriousness of the offence. I say to the noble Lord, Lord Kingsland, that we hope that gives discretion to sentencers. None the less, in their capacity, they have passed those custodial sentences.
Of course, any child in the youth justice system should be treated with humanity and respect. That is their fundamental human right and it is already enshrined in human rights legislation. Nobody who was a Minister in my department could wish otherwise for the people who are, in a sense, in our care.
I know that we will debate the question of human rights, the United Nations and whether this country meets the requirements of that charter. The fact is that we think we are consistent with it. We believe that the requirement to use custody as a last resort ensures that the court must not pass a custodial sentence unless the offence or offences are so serious that neither a fine nor a community sentence can be justified.
I am most grateful to the Minister. I am sure he will accept that, some 25 years ago—it may be longer; I cannot remember the exact date—this House passed a criminal justice Bill that ordained, among other things, that imprisonment should never be used save in circumstances where a court certified to the effect that the offence was so serious that no other form of disposal would be justifiable in the circumstances. I think that those are the exact words, though they might not be as it is some years since I retired. As that is the case for imprisonment generally, I have two questions. Is that a thousand miles away from what is proposed in paragraph (b) of the amendment? If it is, would the Government be prepared to insert the general words of the statute to which I referred to apply now to children and young persons as well?
The noble Lord has a remarkable memory, as I am discovering. His contributions are always apt. But I think that the answer must be no, because we consider that the current legislative provisions already meet the case in point. As I said earlier, there is a genuine problem about simply enunciating principles in the Bill, however attractive, because of the implications they could have for other legislation.
A number of noble Lords, including the noble Lord, Lord Ramsbotham, raised the question—I am sure we will return to it later—of what the noble Lord described as the “disconnect” between criminal justice legislation and legislation relating to children and young people that often refers to the responsibility of local authorities. I fully understand the issue. There is no question but that the child’s welfare should be the court’s paramount consideration. Nor can there be any doubt that certain bodies should have regard to the need to safeguard and promote the welfare of children. That is provided for, for instance, in the Children Act 2004. However, the Children Acts were not intended to apply to a criminal court when sentencing a young offender, because we believe that the court also has other considerations such as the protection of the public. That is why we believe that the prevention of offending has to remain the principal aim of the court when sentencing a young person. However, courts do and should continue to have regard to the welfare of a young person, which is where the 1933 Act is so important.
When a court is sentencing a young offender, it never has given, and in our view it never should give. The welfare of the child priority over the prevention of offending.
How does what the Minister just said about the welfare of the child remaining the paramount consideration chime with the passage in new subsection (4) in Clause 9 on the purposes of sentencing? Those are:
“(a) the punishment of offenders,
(b) the reform and rehabilitation of offenders,
(c) the protection of the public, and
(d) the making of reparation by offenders to persons affected by their offences”.
If what the Minister said is really the Government’s intention, should there not be some amendment of that list to incorporate reference to the welfare and well-being of the child?
I do not think so because other legislation relates to that point. I have already referred to the Children and Young Persons Act 1933, which deals with the welfare of the child. It is difficult to put a set of principles in the Bill when other legislation relates to the overall points I have made. I know that this is complicated, and it is sometimes frustrating that not everything is in one place in the legislation. That is probably the very point that the noble Baroness, Lady Stern, seeks to make. New subsection (2) in Clause 9 states:
“The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent offending”.
In addition, new subsection (3)(b) in Clause 9 refers to the Children and Young Persons Act 1933, which takes into account the welfare of the child.
Much of the debate has concerned what action the Government have taken to improve the welfare of the child—which is important—to prevent reoffending and to help with rehabilitation. I believe that the Government deserve credit for the changes that have been made in the past 10 years. We have introduced the Youth Justice Board, which has given a separate focus to youth justice matters, as well as local youth offending teams. Since noble Lords are always happy to quote organisations’ criticisms of our efforts, it is worth noting that the Audit Commission described youth offending teams as,
“a good example of a flexible, multi-disciplinary approach to service delivery from which other public sector partnerships could learn”.
I pay tribute to them.
The Youth Justice Board has delivered significant achievements; it has improved victim and community involvement and introduced new programmes to support interventions and court orders such as the intensive surveillance and supervision programme. I think that that is part of what the noble Lord, Lord Lucas, wanted in relation to the young men he referred to. We have reduced delays from arrest to sentence for persistent young offenders. Again, that is a very important early intervention, which tries to stop offenders from going down the wrong path. We have seen, in the 1998 Act, the introduction of parenting orders which acknowledge the key role played by the family in the development of young people.
Of course we need to do more, and surely the purpose behind the range of court penalties introduced by the youth conditional caution is an example of doing so. We are also seeking to extend the use of youth referral orders by allowing one to be made on a second conviction when the young person concerned pleads guilty and has not had a referral order before. We see that as a very effective community sentence.
The noble Lord, Lord Hylton, is right to emphasise the importance of restorative justice. I am a committed supporter of restorative justice, particularly for young people. Restorative justice and reparation is a thread running through the youth rehabilitation orders and can be included in the programme’s activity requirement as unpaid work. The reparation order will remain a separate sentence beneath the youth rehabilitation order. We will also be piloting a new out-of-court disposal—a youth restorative disposal which will also be below the YRO but allow a young person to apologise for committing an offence and to take responsibility for their actions.
We will debate in detail the construct of youth rehabilitation orders. There is no doubt that preventing offending in the first place is the best way of tackling youth offending. Preventing young people entering the criminal justice system has to be the cornerstone of the Government’s youth crime strategy. The noble Baroness, Lady Stern, asked me about the joint responsibility between my department and the Department for Children, Schools and Families—a very helpful development in government responsibilities. We are still at the early stages of making it work effectively but I have no doubt that it is a very important change. I hope it leads to ensuring that children’s services generally are co-ordinated and that the youth justice system works much more effectively.
Many noble Lords are interested in the issue of restraint in juvenile settings, a matter we debated some months ago when I brought the statutory instrument to your Lordships’ House. As noble Lords will know, an independent joint review is being undertaken and we have to await the outcome. The age at which young people can be brought into court is an issue we will discuss later. We will discuss the whole question of thresholds, and I welcome that.
As I listened to noble Lords’ comments, I found myself in agreement with the philosophy and sentiments they expressed. We are concerned about the number of young people currently in custody. When young people are in custody, we want to ensure that the emphasis is very much on the prevention of reoffending and on rehabilitation. We have seen improvements in some of the educational programmes, but we need to do more. We have to ensure that when a young person leaves a custodial setting there is proper liaison and integration with services back in the community. That is why the link with the Department for Children is so important. At the same time, we believe that we have got the principles of the system right, with the emphasis on reoffending. I have no doubt that we will come back to this as we go through the Bill, and at a later stage. At this stage, I thank noble Lords for a very helpful debate.
I thank all those who have contributed to the debate for their kind remarks, and the Minister for his very helpful reply. Listening to the debate reminded me yet again what a privilege it is to be a Member of your Lordships’ House. I think that reading it will encourage those, such as those who work for youth offending teams, who work in this field. Many of them are, I know, yearning for a clear ethical statement and some aspirations for the children whom they are trying to help. They know, as the noble Lord, Lord Judd, reminded us, that the long-term protection of the public depends on successful rehabilitation.
I am grateful to the noble Lord, Lord Kingsland, for pointing out that if these principles are to be effective, we need to liberate the judiciary to use its discretion and its wisdom in accordance with those principles. He is of course absolutely right. I have been listening to him in this House for many years now, and it seems to me that he is always right. I have been encouraged to have some further tête-à-têtes on this so that I can consider how to take it forward. On that basis, and for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Youth rehabilitation orders]:
moved Amendment No. 2:
2: Clause 1, page 2, line 17, at end insert—
“( ) a reparation requirement (see paragraph 24A of that Schedule),”
The noble Lord said: In moving Amendment No. 2, I shall also speak to Amendments Nos. 22 and 64.
It is quite clear to all Members of the Committee that the philosophy that lies behind the youth rehabilitation order is to establish a generic order. The Joint Committee on Human Rights welcomed in principle the idea of a generic community sentence, which, it says,
“has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system”.
The youth rehabilitation order encompasses lots of previous low, medium and high-effect orders in a single unit. I am therefore perplexed by the Government’s decision to keep reparation orders out of this hierarchy. The Government’s argument behind the generic principle is that, for example, intensive supervision and surveillance orders should be part of a single generic order, and that there is an inbuilt hierarchy in the generic youth rehabilitation orders. Therefore, why do they want to keep the reparation order separate? If we are to move towards a generic philosophy, it is vital that it is all encompassing.
The right honourable Mr Hanson, the Minister in another place, said:
“We are trying to ensure that we have the flexibility of having the reparation order in place for low-level offences and, equally, including it as part of a wider youth rehabilitation order if need be. It is important that we do that to prevent reoffending”.—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 23/10/07; col. 215.]
But the menu of options set out in the Government’s list contains many low-level interventions that magistrates can use, and it is not clear how one can distinguish a hierarchy of measures, such as a limited attendance centre requirement or a limited activity requirement, and a reparation order. That is particularly true if the Government’s position is that intensive supervision and surveillance orders fall within generic youth rehabilitation orders. By implication, if I understand the Government aright, there is a hierarchy starting at the bottom and moving right up the scale to intensive supervision and surveillance orders. Surely it makes sense to have all the options available in a clear and methodical manner.
The points raised by the other two amendments are slightly different. They concern restorative justice, and I am sorry that the noble Lord, Lord Hylton, is not in his place—he has left the Chamber just at the crucial moment. One thing we know about restorative justice, or at least what we know from the experience we have had with it so far, is that it has been successful. The intervention works in what are often surprising ways. For example, it works not just for property crime, which is what people normally think of with restorative justice, but it also works for some sorts of violent crime. Moreover, it is capable on many occasions of helping the victim who has been the subject of a crime. My concern is that in practice some of the reparation orders do not go as far as they should, which is properly to address the issues of the offence with the victim. Quite often it simply means that there is an obligation on the offender to write a letter to the victim and do no more. That is the purpose behind the provision in Amendment No. 22 of a definition of what the reparation requirement should be.
Amendment No. 64, which is an amendment to Schedule 1, defines the reparation requirement in relation to a youth rehabilitation order as meaning,
“a requirement that during the period for which the order remains in force, the offender must attend an activity or activities involving contact between an offender and persons affected by offences in respect of which the order was made and as may be determined by the responsible officer”.
I beg to move.
I am grateful to the noble Lord, Lord Kingsland, for outlining his amendments so clearly. I shall deal first with Amendment No. 2, which follows closely an amendment debated in Committee in another place. We believe that adequate provision is already made in the Bill and in existing law for reparation by the offender. It is our view and, I think, will be that of the Committee generally, that young people who have offended should accept responsibility for their actions. As part of this, where possible and depending on the nature and circumstances of the offence, the offender should be required to do something practical in reparation that will benefit the victim or alternatively the community as a whole. Offenders can be required to do things such as cleaning up graffiti, repairing community facilities or conservation work.
Making reparation to the victim of a crime is a central part of the youth justice system because it can assist with the rehabilitation of the offender and help the victim. That is precisely why we have made provision for reparation in the requirements of the youth rehabilitation order. Paragraph 8(2) of Schedule 1 to the Bill provides that as part of an activity requirement, a specified activity,
“may consist of an activity … whose purpose is that of reparation, such as an activity involving contact between an offender and persons affected”,
by the crime. Indeed, the Committee will have noticed the similarity between the words in paragraph 8(2) of Schedule 1 and the amendments tabled by the noble Lord, Lord Kingsland.
But what of the suggestion that reparation cannot be made available with other requirements? First, an activity requirement will always form part of the youth rehabilitation order, with intensive supervision and surveillance. It could feature as part of a programme requirement or, in the broader sense, take the form of an unpaid work requirement. Secondly, if reparation was wanted in addition to some other requirement, the court could impose an activity requirement the sole purpose of which is reparation.
Let me explain why we propose to retain the reparation order as a separate sentence beneath the youth rehabilitation order. It is to give the courts flexibility so that they do not have to resort to a youth rehabilitation order simply to ensure that reparation is made. During oral evidence to the Public Bill Committee in the other place, both the Youth Justice Board and the Children’s Society strongly supported retaining the reparation order as a separate sentence. The chief executive of the Youth Justice Board told the committee that,
“there is value in having reparation in its own right”.—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 18/10/07; col. 109.]
A reparation order provides a separate sentence below the youth rehabilitation order in the sentencing hierarchy. Like reparation as part of a youth rehabilitation order, it is designed to reinforce personal responsibility and learning about the consequences of the damage the offender has caused to the individual and the community. We believe that the reparation order can be effective in preventing the escalation of offending behaviour before there is a need for the court to consider a youth rehabilitation order and, as such, should be retained as a free-standing disposal in its own right. I remind the Committee of what I am sure it knows well, that it can typically be combined with a fine.
As the amendments are drafted, the new reparation requirement would duplicate the provisions for reparation already built into the youth rehabilitation order, and I have referred to the part of Schedule 1 in which this appears. The amendments are not necessary in our view and do not go as far as the provisions already in the Bill. They risk causing some confusion to the courts, to the supervising authorities and, crucially, to the young person who is to be sentenced. For those reasons, I invite the noble Lord to withdraw the amendment.
On the noble Lord’s other amendments, reparation is a form of restorative justice. The youth rehabilitation order includes provision for reparation and therefore covers those amendments.
No. I am sorry if I gave that impression. Of course not; a reparation order is a part of the sentence of the court, as I understand it, for someone who has been convicted or pleaded guilty to a criminal offence. It cannot be imposed just because the court feels like it.
I asked that question because there is a basic weakness in the whole concept of the orders in the Bill. To be found guilty of an offence very often makes the child more likely to reoffend, not less likely. We all know what children are like and, if they are found guilty, very often they come back and do it again. That is our experience of children and a lasting experience in the criminal justice system.
Many years ago I was on the visiting committee of a borstal. Borstals had very high aims and did a lot of very good youth work while people were in them, but the reoffending rate was enormous; only 11 per cent at that time did not reoffend. It simply did not work. I learnt at that time that to be found guilty does not necessarily make you less likely to offend again.
The menu of possibilities that the court may impose under the Bill contains many measures that one would hope might be taken regarding a child without them being found guilty of an offence—but in this context they are guilty of an offence. There is a basic problem in how to meet the Government’s aspirations through the order. The reparation motion is excellent and works better than most things, but again it applies only because you are guilty of an offence and you have to do it.
In thinking about all this, we have to realise that unless we can find a way of getting children to do some of these things without being found guilty of an offence, we will not get terribly far. I would have liked to have said that in the previous debate but I had to go to a meeting and knew I could not be in the Chamber for the whole thing, so I did not speak. We have a basic weakness in our thinking in England and Wales about this issue.
I will come back to the noble Baroness. I am glad she made her intervention. She asked about reparation orders under Clause 1. As always, in my experience, she has a point. Youth conditional cautions are provided for in the Bill, and they are part of a pre-court disposal. In effect, as I understand it, the offender has admitted the offence and the discretion is used not to bring him or her before a court but to caution them. As part of the youth conditional caution, and this should please the noble Baroness to some extent, there can be an element of reparation or restorative justice. I hope that clarifies the issue. I have been addressing the amendment in the name of the noble Lord, Lord Kingsland, about reparation in the context of the Bill.
I have great sympathy with the amendment. I read from around the House that there is a lot of support for both reparation and what the discussion has then slipped into, which is restorative justice. In order to retain clarity, it is important to realise that there is a real distinction between reparation and restorative practices, not least when, as happens quite often, victims are not at all keen on meeting the person who has offended against them. Restorative conferences require a great deal of work to be done with both the victim and the offender. I have had the good luck to be able to sit in on one or two restorative conferences and they are extraordinarily interesting and helpful, but they are not necessarily applicable in all cases. A lot of work has to be done. They are part of a continuum but they are definitely distinct and separate. I understand the Government’s position on keeping reparation separate because it has a role, but it is none the less part of a continuum of possibilities that should be available to the courts. There should be no confusion between the two.
I thank the Minister for his reply. He suggested that one of the influences on the Government in taking this step was advice that had been proffered from outside. However, the Government will have had advice also from the magistrates, who have suggested that it would have been much better if reparation had been expressly included in Clause 1(1), as I have argued.
The Minister, like the right honourable Mr Hanson in another place, placed great emphasis on the reparation order being a low-level intervention. However, there are many other low-level interventions which are an inherent part of Clause 1(1). One can think, for example, of a limited attendance centre requirement or a limited activity requirement, which are just as low-level as a reparation requirement. What distinguishes them from the reparation requirement? What makes it appropriate for them to be incorporated, in circumstances where the reparation requirement is not?
I was dismayed by the Minister’s response, but, at this stage of the Bill, I do not intend to bring the matter to issue and, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
had given notice of his intention to move Amendment No. 3:
3: Clause 1, page 2, line 17, at end insert—
“( ) an alcohol treatment requirement (see paragraph 24B of that Schedule),”
The noble Lord said: The amendment is grouped with Amendments Nos. 23 and 63. Your Lordships may have observed that we will come in a little while to similar amendments tabled by the noble Lord, Lord Avebury, which I have studied carefully and concluded are better drafted than mine—as I have frequently done in the past. In those circumstances, I shall speak to the matter as a humble hewer of wood and drawer of water when the noble Lord, Lord Avebury, introduces his own amendments in a little while.
[Amendment No. 3 not moved.]
moved Amendment No. 4:
4: Clause 1, page 2, line 28, leave out “or (b)”
The noble Lord said: The amendment raises intensive fostering, which is not to be confused with the normal fostering obligations that lie on a local authority for general welfare purposes. The evidence we have so far suggests that intensive fostering has great potential to keep a child out of custody, but does that only when it is properly implemented. The Government have pilot projects in, I think, three counties, the results of which are being analysed by the University of York. So far, the results are extremely encouraging. The real issue is the cost, because although intensive fostering is potentially very successful, it is extremely resource-consuming and therefore very expensive. What is more, the expense falls not on the criminal justice system and its budget, but on the local authority in the area where the child is located.
When this matter was debated in another place, the Minister, Mr Hanson, suggested that local authorities would have to bear no less than, on average, some £500,000 per county. Where is this money going to come from? Will it be diverted from the criminal justice system or will the resources devoted to other community orders be stretched further? It appears that a court cannot impose a fostering requirement without consulting the local authority, so there will be a financial incentive for the local authority to say that it is not in a position to provide intensive fostering facilities. The consequence might well be that the child will end up in custody.
So a financial issue is at the heart of this potentially extremely successful arm of youth justice. I expect that between the stages of the Bill in another place and now the Government have not advanced very much in their thinking about how they will finance this, but they must surely see the dilemma here; clearly some local authorities, either because they are relatively wealthy or because they really believe in intensive fostering, are more likely than not to provide facilities and other counties will not. You might end up with a kind of postcode regime for this measure. In our submission, it would be a very great shame if that were to be its fate.
Through the amendment I am urging the Government in approaching this issue to think a little more carefully and imaginatively than they have felt themselves capable of so far. I beg to move.
I support the amendment and give notice of something that is already happening in this area, organised by Community Service Volunteers in Sunderland. This is a proposal called the VYOI—the Virtual Young Offenders Institute—which has been funded by the Treasury to the tune of £3 million for three years; this is the third year. It entails young offenders whose criminality is not deemed so great being given the opportunity of living with and being intensively fostered by a foster parent appointed by Community Service Volunteers. The offenders are given employment and education and they are helped into accommodation when their period is over. Of course, if they fail in any way to come up to the terms of the scheme, they are sent back to custody.
The interesting thing about this experiment was that it took an enormously long time for Community Service Volunteers, having got funding from the Treasury, and supported in its appeal for it by the then chief executive of NOMS, to persuade the Probation Service and others to release these young offenders into intensive fostering, because they claimed that the offenders were their responsibility. The work is now in progress, overseen by the regional offender manager in the north-east, and an evaluation of this project, funded by the Helen Hamlyn Trust, is being carried out by Newcastle University. Here I declare an interest, because I am an adviser to the Helen Hamlyn Trust and suggested that it should fund this evaluation. It would be worth the Minister monitoring this, because it is something practical that has potential and there are evaluated results that can be taken into account.
I, too, support this amendment. If the evidence is there, as it seems to be on a small scale, the argument can be made that the extremely high costs referred to by the noble Lord, Lord Kingsland, could be justified in the long term. However, the noble Lord, Lord Kingsland, also makes the point that I made in our earlier debate; namely, that unless the facilities are available for a particular disposal to be carried out, it is pointless to make this disposal. This is one of the only instances in the Bill where it has to be established before a disposal is made that intensive fostering facilities are available. I urge the Government to reassure us constantly that if a decision is made on a community-based penalty, both the resources and the facilities will be there.
I thank noble Lords and in particular the noble Lord, Lord Kingsland, for raising this issue. It gives me the chance to say a few words about this scheme. I am also grateful to the noble Lord, Lord Ramsbotham, for telling us about the Sunderland scheme. My noble friend has already said that he will monitor it and we look forward to hearing more.
The scheme is based on the Youth Justice Board’s intensive fostering pilot, which offers an innovative alternative to custody. Let me repeat—this is an alternative to custody and is pitched at this level as a reflection of its intensity. The fostering requirement retains its place as an alternative to custody alongside intensive supervision and surveillance. The Committee will know that intensive fostering is significantly different from standard fostering arrangements, which are for local authorities to decide as a welfare issue. Intensive fostering works on an evidence-based model, delivered by a team who work directly with the young person and, critically, with their family of origin. I repeat that it is an alternative to custody, for use where the juvenile’s offending is directly linked to their home environment. It is designed to provide highly intensive care for the offender for up to 12 months, as well as a programme of support for the family. This structured intensive fostering programme of daily activity is clearly distinguished from standard foster placements, and its intensity underlines its position at the custody threshold.
The Youth Justice Board emphasised the value of intensive fostering in its evidence to the Commons Committee, stating:
“It is also welcome that the YRO will include a fostering requirement as another clear alternative to custody allowing for use of the Intensive Fostering programme currently being piloted by the Youth Justice Board … Intensive fostering is being piloted on a small scale as an alternative to custody in cases where a young person’s offending is directly linked to his or her home environment”.
Those places where it is being trialled are Stafford, Wessex—which is Hampshire and the Isle of Wight—and parts of east London. The programme is designed to provide highly intensive care for the child or young person for up to 12 months, as well as a programme of support for the wider family. This structured intensive fostering programme of daily activity is clearly distinguishable from ordinary fostering. Currently the programme is available on a small scale—so far 35 young people have taken part. The pilot is due to end in October 2008. As the noble Lord, Lord Kingsland, suggested in moving his amendment, while evaluation of the scheme is not complete, initial indications are positive, although we have to put in the caveat that only a small number of people have been through it.
The noble Lord properly raises the issue of money and resources. The first thing to say is that we do not think that this scheme will involve a large number of children, even when it is up and running. It is a vital tool in the kit of those who, like this Committee, want to keep young people out of custody. But we do not think it will be widely used and, as far as resources are concerned, let me quote from Mr Les Lawrence, the chairman of the children and young persons panel from the Local Government Association, who gave evidence to the Public Bill Committee on 18 October 2007. He said:
“The early indication is that the number of places and the resources, working with the court and the other agencies, are sufficient at this point, as is the number of places that are required to match the number of available resources. Yes, there is support from local authorities, because of the other services that need to go with the fostering service, but thus far, albeit from early indications from that pilot, it seems that the resources—if used in an aligned and the proper way—are sufficient at present”.—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 18/10/07; col. 141.]
So far, so good. The noble Lord is quite right, when considering a programme that I think will have the universal support of Members of the Committee, to ask how it will develop in future. He can rest assured that this scheme will not fail through lack of resources. Let us see how the pilot projects do and let us hope that we can move this programme forward as fast as possible.
I am grateful to the Minister, and rather intrigued by his last remark that the scheme will not fail through lack of resources. Is there a glimmer of hope that, where a local authority consistently refuses to provide resources for intensive fostering in its area, it might either be leant on or assisted by the criminal justice regime? Is it fair to say that the Government are considering this at the moment? I am not sure whether the Minister is inclined to respond.
Taking a child away from its family is a very serious matter. Everybody here is aware that this is—perhaps “draconian” is the wrong word, but it is a far-reaching arrow in the quiver of possibilities. Nevertheless, in certain circumstances, it can have extremely beneficial effects. Therefore, we applaud the Government’s pilot projects and hope that, if the initial findings are verified with larger samples, resources will not prove to be a barrier to ultimate success. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
5: After Clause 1, insert the following new Clause—
“Custody of children: conditions to be met
A court must not pass a custodial sentence unless—
(a) the offender has already been the subject of a youth rehabilitation order, or orders, which falls within section 1(3), or(b) the offence, or the combination of the offence and one or more offences associated with it, was so serious that, notwithstanding the age of the offender, a youth rehabilitation order which falls within section 1(3) cannot be justified for the offence.”
The noble Earl said: We now arrive at the question of custody thresholds. I am moving this amendment because I have the privilege to be on the Joint Committee on Human Rights. The noble Baroness, Lady Stern, and I have been on it longer than some of the other noble Lords. I am pleased to see that the noble Lord, Lord Judd, who used to be a pillar of the committee, has put his name to the amendment, and I speak with the background of the JCHR brief. Your Lordships will know that it is not exactly a committee packed with Conservatives. Basically, it consists of people who seem to be interested in, and are keen to protect, the rights of the subject. Some of us come to it from an old-fashioned, right-wing view that the Magna Carta, the Bill of Rights and all those lovely historical liberties of the subject should be upheld at all costs; others come to it from a slightly more left-wing, human rights angle and the Tom Paine tradition. However, on this issue we are unanimous.
I shall quote from a particularly interesting part of our report. The UN Committee on the Rights of the Child came over here to see how we were doing and issued a report in 2002, which said that it was,
“deeply concerned at the … increasing numbers of children in custody, at earlier ages for lesser offences, and for longer custodial sentence imposed by the recent increased court powers to give detention and training orders. Therefore, it is the concern of the Committee that deprivation of liberty is not being used only as a measure of last resort and for the shortest appropriate period of time, in violation”—
I repeat, “in violation”—
“of Article 37(b)”.
I underline the fact that this was in 2002 because in 2003 approximately 1,400 children under the age of 18 were in custody in England and Wales. That number more than doubled over five years, with a 110 per cent increase, from 1,405 in 2002 to 3,000. The number of children under the age of 15 in custody has increased even more dramatically—by 700 per cent, as I explained earlier—from 100 to more than 800, with only 50 being serious cases. That increase has been driven by government legislation and the sentencing climate. Over the same period, indictable offences have dropped by 20 per cent, and that is no artificial change. The rates have been stable since 1995 and 42 per cent fewer people report being crime victims. I also said earlier that the figures for this country were 23 per 100,000 and, for the Finns, 0.02. Just for fun, I shall put France down as six and Spain at two. That shows that something has gone wrong in the use of custody thresholds and we think that that needs to be addressed seriously.
Everyone agrees that children can be very unpleasant on occasion, and we have recently read in the newspapers of sentences for children who behave in a very repellent manner, but it is more important than anything else to get at those children. One does not defend the public by getting at those children, but one does defend the public and act for the good of public safety by ensuring that proper rehabilitation of the disgusting, as well as of the less disgusting, is carried out. I think we are all saying that the use of custody is just not working and, if it does not work, that is immoral. Therefore, we should ensure that everything else is tried before custody is used and that should be in the Bill. I beg to move.
I am delighted to support the noble Earl in his amendment. I thought that he moved it in a characteristically reflective style, which is always very enjoyable to hear. He referred in passing to left-wing advocates. I served on the committee with the noble Earl for some time and often felt that he was essentially, in the best sense, a left-wing advocate of decency, humanity and common sense. However, that is not why I rise to support the amendment, although I am glad to do so in that spirit. He referred to the UN Committee on the Rights of the Child, but when the human rights commissioner from the Council of Europe visited this country, he had an informal meeting with the members of the committee and was really perturbed by what he detected—I think it may be fair to say that he thought it was inadvertent—as the increasing criminalisation of young people in our society. That conversation with the commissioner made a deep impression on me, and that is one reason why I think the amendment should be taken seriously.
The second reason is that, with the help of the Home Office—I always believe in looking at things as they are—I visited one of the teams working on the front line in this sphere. I do not think that I am doing them a disfavour if I say that I was terribly impressed by their unhappiness about the way the system was operating; they were quite perturbed about it. I think that it is something that needs to be addressed and, for those reasons, I hope that my noble friend, who is a reasonable man, will respond to the amendment reasonably and sensitively.
I, too, am a member of the Joint Committee on Human Rights and, as will be clear, I am in very good company. I very much support the remarks of the noble Earl, Lord Onslow, and the noble Lord, Lord Judd. I am also a Member of your Lordships’ House who remembers very well Lady Faithfull—a Conservative Peer of immense achievements.
Indeed, she was a good girl. She had been a social worker and a children’s officer, and she used her time in this House to enormous effect in bettering the lot of disadvantaged children—particularly those in trouble. In this House, she introduced an amendment which became Section 1(4) of the Criminal Justice Act 1982 and which set a custody threshold for people under 21 before it was repealed by Section 101(2) and Schedule 13 to the Criminal Justice Act 1991. Her Section 1(4) provided that the courts should not pass a sentence of custody on a person under 21 unless they were,
“of the opinion that no other method of dealing with him is appropriate because it appears to the Court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified”.
The measure had a significant effect on the number of young people sent to custody. Between 1982 and 1990, there was a 54 per cent reduction in the use of immediate custody for indictable offences for people under 21. The clause was opposed by the then Conservative Government and was achieved only after a considerable amount of persuasion by Lady Faithfull, which she was extremely good at. The Government subsequently admitted, however, that she had been proved right by events. There are sound human rights arguments for reserving custody for children to the inescapable minimum, for trying all other measures first and for imposing a high seriousness threshold. I cannot believe that that is what we are doing at the moment.
Liam McManus, who was 15 years old, killed himself in Lancaster Farms Young Offender Institution while serving six weeks’ custody for breaching his supervision order. I know a family where a child with learning difficulties was sent to Huntercombe Young Offender Institution on his sixteenth birthday for three months for not keeping his appointments with his supervisor in the youth offending team. The arguments I heard for why he did not keep his appointments were certainly worthy of examination.
We have the latest custody figures from the Ministry of Justice, from December 2007. They show that 387 of the 1,781 sentenced children aged 15 to 17 received a sentence of six months or less. Such a sentence cannot have been imposed for public protection reasons or for seriousness, so why was it imposed? Of the 1,781, 143 were imprisoned for theft and handling, 79 for drug offences, 35 for motor vehicle offences and 216 for other non-violent offences. I therefore find the Government’s position a little hard to understand. They frequently say—the Minister said it again today—that they want custody used as a last resort. I have no doubt that he is absolutely sincere or that that is what he wants.
The Youth Justice Board has a target to reduce the use of custody by 10 per cent—not that the Youth Justice Board can reduce the use of custody. Presumably it means that it requires the youth offending team workers to try much harder to put good ideas for non-custodial options to the courts and to persuade them of the merits of such a course. If the Youth Justice Board has such an objective, surely the Government support it? Custody is very expensive. It is very damaging to a child’s prospects. As the noble Baroness, Lady Carnegy, said, even an admission of guilt and a conviction is very damaging to a child’s prospects. The research from the University of Edinburgh child cohort study makes it clear that the most likely predictor of future involvement in crime is an initial involvement in the criminal justice system. Most other countries in Europe manage not to use custody as we do. The Government may like to take particular note of the view of the Local Government Association, which we have just heard quoted on this matter. It has written to many of us urging our support for an amendment such as this one. It says:
“We do hear of horrific acts of violence perpetrated by young people, and for young people who commit such offences a custodial sentence must, of course, remain an option. However, there are a great many young people drawn into the youth justice system who do not represent a serious risk to the physical or mental health of others and are actually vulnerable themselves. We must respond to those young people as children first, seeking to address their welfare needs whilst seeing that justice is done—but does not jeopardise the child’s future, long-term health and well-being”.
This is the crux of its argument:
“We are convinced that a failure to take such an approach will ultimately be borne by the local community”.
The Local Government Association is making the point that local communities will have to bear the consequences of this policy. Young people who are sent to prison for six months for non-violent offences will come back, but their prospects will be worse. They will cost their local community a lot. They may well cause a great deal of damage. Those are very strong practical reasons which I hope the Government will consider when looking at these amendments.
Does the noble Baroness agree that her last remarks endorse the observations that were made to me by the team that was working on ASBOs, who were exasperated because those factors were exactly what was making the situation worse? Does she also agree that an underlying element of anxiety about legislation is that, whatever the good intentions of Ministers, those good intentions are not being delivered in practice? From that standpoint, does it not become necessary to spell out in simple language what is required to turn these commitments into reality?
I wholeheartedly support Amendment No. 5 and agree with the points just raised by the noble Lord, Lord Judd. I shall also speak to Amendment No. 6, which stands in my name and that of my noble friend Lady Falkner.
It is a sad reflection on the reality of our management of children who are currently in trouble and offending that these amendments are necessary at all. The amendments are designed to ensure that custody is used only as a last resort for children—when in theory, of course, there is already a requirement that it be the last resort for offenders of all ages except the most dangerous and prolific. We know that that is not the case for adults. Shockingly, it is not true in the case of children either. In the past 10 years, children have increasingly been sent to custody not only for lesser offences but for longer periods, thus violating Article 37(b) of the CRC.
The reality is that the number of children in custody has more than doubled in 15 years, increasing by 110 per cent, so that approximately 3,000 are now in custody. The number of children under 15 in custody has increased by more than 700 per cent. I wish that the noble Lord on the Tory Front Bench would listen; these are terribly important points. The number of children under 15 in custody has increased from 100 to over 800. The numbers are staggering, even more so when one considers that the number of indictable offences has actually decreased by 20 per cent over the same period, that clear-up rates have been stable since 1995 and that 42 per cent fewer people report being victims of crime.
That is crucial evidence on the extent to which we are criminalising our young people today. I believe that it is a disaster for our society and our young people. We know beyond peradventure that custody does virtually nothing to prevent reoffending, as more than 80 per cent of very young offenders aged 15 and under reoffend. Moreover, as has just been discussed, the experience of custody, the removal from home, the disruption of lives and the inevitable alienation of our younger generation, who represent our tomorrow, all of those actually promote criminal behaviour.
We already know that these young people represent the most damaged and vulnerable in our society, for whom treatment and help is desperately needed. However, I fear that we have said this so often that it is becoming a platitude and no one listens to it any more. I am in no way trying to justify or minimise the crimes that young people can and do commit. They can be awful, even disgusting. But let us remember the evidence: offending has been stable; it is custody that has gone up. Furthermore, as we will hear over and over again, where children are concerned the CRC rightly insists that the welfare of the child is paramount, that his need as well as his deed must be of central consideration and that he is not, therefore, to be treated as a small adult.
I am aware that we are developing a culture in our society in which the young are increasingly disliked, even feared. This is being reflected in our legislation. ASBOs, to which the noble Lord, Lord Judd, referred, are born of this. I am also aware how much Ministers dislike international comparisons, but the fact is that, of every 100,000 under 18, we lock up 23—I think that this has already been mentioned—while in France the figure is six.
I thank the noble Earl for that.
Up the road in Scotland, where, as I have said time and again, all is far from perfect, we at least do not lock up children in custody until they are 16.
I turn to the amendment in my name and that of my noble friend. It is important that we do everything in our power to ensure that it becomes a reality that custody is indeed used as a last resort, for we risk doing great damage to our society as well as our children—and we must keep on saying “children”. The amendments go some way towards achieving this by requiring the use of a YRO first, unless of course the offence is so serious that the YRO cannot be justified. It is an important safeguard, given the reality of what is happening in the use of custody for children today.
The new clause in our amendment would require an ISSP—intensive supervision and surveillance programme—to have been tried before a detention and training order is imposed. The point of YROs is to enable the courts to have greater flexibility in their sentencing, which we welcome, so that the punishment fits not only the crime but the offender. Again, this presumes that all options are available. Having an ISSP as part of the new menu of YROs would further ensure that custody was truly a last resort—the last bulwark. However, it is important that the ISSP option should not be used as a substitute for other community sentences—it must come as the last ditch—although there is evidence that this is happening. However, if it is retained as the last ditch, custody is more likely to be the last resort. That is what our new clause aims to achieve.
I have met and talked to the people who deliver ISSPs; I did so a year or so back in Peckham. I was very impressed by the commitment that they brought to the work, which is indeed very intensive. The work was, in this case, carried out by young men who were often from the same estates as the young offender and who offered understanding and friendship as well as the supervision required; they gave the sense of being involved in the same form of living. The evidence so far from the past four to five years is that these programmes are working well. However, the investment in time and money is considerable, though justified. That leaves only the question of the extent to which the programmes are available.
It still remains possible for this provision to be bypassed either under Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or for “dangerous offenders” sentences under the Criminal Justice Act 2003 if the offence is so very serious or violent. Therefore, ISSPs do not act as a way out of bringing those other, more serious considerations to bear.
I urge the Minister to give these amendments the most serious consideration, as they go to the heart of how we manage young people who offend while keeping custody as a last resort, which I know that he, too, wants. I hope that he can reassure us that the necessary investment of money and manpower is in place so that this is a reality.
The noble Baroness has just made an important contribution. She knows a lot about these things and has put it simply. She pointed out that youth offending is static and that it is custody that has gone up. That is the truth of the matter and we should be very worried by it. The Minister tried to dismiss the notion that international comparisons are necessarily relevant, but he must be careful to look properly at those figures. They must be relevant. Young people are not all that different these days; they all take part in youth culture. Comparisons matter.
The Government of the day should be giving a lead on this. We have gone a bit mad on young people’s criminality. The media are a bit shocking on the subject; they interact with public opinion and people are afraid of what will happen when they meet a young person. It has all become completely out of hand. I think that the Government should be beginning to educate people about this; they should have the courage to give a lead. I am sure that my party would assist in that, from what I understand of its thinking. A lead should be given and people should begin to understand that, in most cases, shutting someone up makes the situation much worse. We all understand that it is occasionally necessary. For certain young people, there is, for a variety of reasons, no alternative. However, that is seldom the case. The figures that we have heard this evening are shocking. I wonder whether the Government might contemplate beginning to educate the public on this subject, which I believe would be extremely helpful.
In the spirit of what many noble Lords have said, I have just three observations to make in adding my support to the amendments. First, I am glad that the noble Baroness, Lady Stern, mentioned the ridiculous Youth Justice Board target to achieve a 10 per cent reduction in the number of those in custody, as that highlights one of the problems. This area is bedevilled by a large number of silly and inappropriate targets, which deflect people from the real purpose.
My second point is that, as I mentioned earlier, in our consideration of the Children and Young Persons Bill we have been discussing just this sort of problem in relation to children who are in the hands either of the Minister for Children, who happens to be in the Department for Children, Schools and Families, or of the social services. This shows up the lack of a joined-up approach. Surely if there is a Minister for Children and she really is responsible for them, she should be made responsible for pulling together all the people who have a responsibility in this area. We seem to have a totally fragmented approach, which I do not think is helpful.
My third point reflects something that the noble Lord, Lord Judd, said. I have said this on many occasions in relation to many other things. None of this will happen unless someone is made responsible and accountable for making it happen. You can have Ministers speaking and officials writing goodness knows what, but unless somebody is made to do it, it will remain as a spoken or written word. The amendments highlight the need to have doers doing things rather than talkers talking.
I rise to support those remarks and to make three brief points. First, there is a danger in our debates of pulling apart the welfare of the child and the needs of the community. If we need a theme it is to bring those two things together. When we are serving the needs and welfare of children, we are serving the needs of society, the community and victims. When we are attending to the needs of victims and society, we should properly be attending to the welfare of children. If we can hold those things together we will get it right.
Secondly, public policy needs to be consistent. When local authorities take children into care, the one thing they seek to avoid, if possible, is putting them into residential units, which is a last resort solution for children. We have the needs of the child in mind and our experience of such homes in the past means that we are very cautious about that solution. Thirdly—this has not been said in the debate—if it is necessary within those principles to take children into custody, such must be the conduct that that too serves the interests of children and their welfare. There is a danger of saying, “We don’t know what to do with this hard core of children and young people who we can’t cope with in society, so we must put them in custody”. The noble Earl, Lord Listowel, reminded us earlier of 60 young people with three staff looking after them. That is 60 too many in custody. The style and content of what we are seeking to achieve for children who are held in custody is part of this issue.
I apologise for being absent, but I was attending a reception at No. 11 Downing Street for the National Grid Transco offender programme, which has reduced reoffending in its charges from 70 per cent to 7 per cent by giving young people, and now the older offenders with whom it works, a mentor and a guaranteed job after three months’ training. That is relevant to what we are discussing in demonstrating how effective, as an alternative to custody, it can be to engage young people with a mentor. It is difficult with only three officers for 60 young people in a YOI, but to engage them with a mentor and to give them something constructive that they want to do in the end leads to a win-win situation—win for business and win for society.
Having listened to the debate, I add my wholehearted support. The noble Baroness, Lady Linklater of Butterstone, put her finger on the benefits of this approach. I hope that the Minister will take it to heart and respond, as clearly the intentions are good and the results are good for the community, whom we have to do our best to protect. Above all, we need the extra resources to stop the offender reoffending. I agree entirely with the right reverend Prelate.
In anticipating what the Minister might say in response to Amendment No. 6, I thought that I would get my retaliation in first. I want to say briefly why I think the Bill’s current option will not help in reversing the increase in child custody that my noble friend Lady Linklater so eloquently pointed out.
We know that without a clear restriction on custody, courts will wholly or largely substitute that for other community sentences. There is good evidence for that. The ISS programme, which was rolled out nationally in October 2003, was made available to courts on a significant scale with 5,568 placements in 2005-06, and 1,350 places in use at any one time. It has been heavily promoted as an intensive and robust programme, and the evaluation evidence is that it successfully addresses a wide range of needs among serious and persistent young offenders. Yet, as my noble friend, pointed out, in a period when youth crime has been stable, the number in custody has risen.
As currently drafted the Bill is unlikely to change that. The Government argue that under Clause 1(4), ISS would be available only for offences that are
“(a) … punishable with imprisonment”,
“(b) the court is of the opinion that the offence … was so serious that”,
custody would otherwise be appropriate.
However, the test in subsection (4)(a) simply identifies the maximum sentence a category of offence can attract, saying nothing about what the particular offence or person warrants. Subsection (4)(b) is highly subjective, which turns on the court’s opinion. Neither of those provisions directly tackles the uses of custody, which is what we are seeking to address with the proposed new clause.
As the noble Baroness, Lady Stern, said, custody is expensive and damaging, and in any case, it is largely ineffective. The JCHR wants statutory protection for government policy that custody should be the last resort. We have two amendments that seek to achieve that objective.
I have a question for the noble Baroness, Lady Linklater of Butterstone. What if an offender commits a first offence that is so serious that the child represents a real threat to public safety? Both the amendments require a sentence that is below the custody threshold, but those circumstances must raise the question of whether one can generalise the situation to that degree. That is just a thought.
We fully agree that a custody sentence should be the last resort; it should be used only when everything else has been tried. In that sense we are completely in tune with the animating spirit of the amendments. The JCHR report states that the Government are also in agreement with them. The difficulty with these amendments is the one that faced the noble Baroness, Lady Stern, in the amendment she moved almost at the beginning of today’s proceedings. How do we make such amendments have operational effect? When we get into the micromanagement of the criminal justice system, at every turn there are specific provisions in different forms of legislation, some of which stretch back years if not decades, which frustrate these objectives. Putting them on the statute book will not override the specific obligation.
That is why we have taken a slightly different approach from that of my noble friend and the noble Baroness, Lady Linklater, by tabling a series of amendments in the sentencing part of the Bill to give sufficient flexibility to the bench of magistrates or the circuit judge to prevent them having to ratchet up orders until a custodial sentence becomes obligatory for a minor offence.
I absolutely take the point, but I refer to new paragraph (b), which states:
“the offence, or the combination of the offence and one or more offences associated with it, was so serious that, notwithstanding the age of the offender”,
an order under subsection (3)(a) or (b),
“cannot be justified for the offence”.
Does that not cover the objection to which the noble Lord reasonably referred?
It may well. I simply put the question; I did not know what was the answer. The noble Earl appears to have given me, as he so often does, a completely armour-plated, ocean-going explanation.
I just thought that I might add to the list. I gabbled it rather, because I am very bad at reading out the names of the sections. Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000, or dangerous offender sentences under the Criminal Justice Act 2003, can bypass the situation that we are talking about. Where the noble Lord is worried about what to do about the very serious and violent offender, there is provision for that to be invoked.
So we can be reassured that the amendments are not contaminated by the matter that I raised.
I emphasise again that, in my view, the key to all this is trust: trust the individual who is trying the case; trust him to get it right. Do not require him to end up awarding a custodial sentence in inappropriate circumstances.
But it does remind me that he is also a radical reformer of your Lordships' House, as I well remember from when we debated the Bill of the noble Lord, Lord Steel. He, the noble Lords, Lord McNally and Lord Strathclyde, and I were each one of four opposed to the massed ranks of supporters of the noble Lord, Lord Steel. That is by way of inviting him to come back to our regular Friday engagements on that most important matter.
I was very interested in the comments of the noble Baroness, Lady Stern, about the late Lucy Faithfull. My father, in addition to being a clergyman, was a social worker employed by Oxford City Council. For some time, Lucy Faithfull was director of social services. The noble Baroness will know that it was not only in your Lordships' House that she was a very much admired person. I shall come to the point that the noble Baroness raised about that piece of legislation.
I was also interested in the whole question discussed by several noble Lords about how young people are regarded by society. There was a view among noble Lords that part of the reason that more young people are in custody reflects not what we might regard and what I described earlier as rational public opinion, but more emotion, where young people wearing hoodies are stigmatised. As someone with a number of young children still at home or at university, that concerns me.
The answer to the noble Baroness, Lady Carnegy, is that the Government have a responsibility for encouraging society as a whole to think positively about the contribution that most young people make to our society. I think that young people now have to work much harder at school than I ever had to. Many of the pressures that they are under are considerably greater than when I was growing up. I also think that a benefit of the new department for children will be to enable us to have a greater focus in projecting the good things that so many young people do and represent. It is important to bear that in mind. Equally, with those children who are not so good, we have to have custodial sentences available as an option, but I agree that it should be as a last resort. That is what the law is and that is what we will seek to do in practice.
The noble Lord, Lord Ramsbotham, made some interesting comments about targets. I know all about targets as a former Minister for targets in the National Health Service. I well understand what he says: that when separate government departments, quangos or executive agencies have targets inconsistent with those of other agencies, you run into trouble. My experience is that that is easier to say than to do. It is not for the want of trying. The new PSA target approach recognises much more the need for interdepartmental consistency.
I am certainly not an expert but in the new approach to targets for local government, apart from giving much greater discretion to local authorities about which targets they choose, there is a much greater effort to get much greater consistency of approach because of the duty of partnership now laid on the partners of local government at local level. You cannot wave a magic wand and have that happen overnight, but it is part of our aims. It is the reason why joint responsibility between my department and the department for children on youth justice matters is so important.
On Amendment No. 5, the Government's view is that custody is already a last resort for young people. The Judicial Studies Board, in the Youth Court Bench Book issued in March 2005, emphasised that. I assure the Committee that we will be seeking the help of the Sentencing Guidelines Council to issue guidance on sentencing, especially on youth rehabilitation orders.
I refer the Committee to Section 152(2) of the Criminal Justice Act 2003, which states:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence”.
The Bill makes it even clearer that custody is a last resort. I must say that we do not think that our approach is out of step with what is envisaged under the new clause contained in Amendment No. 5. I cannot offer an absolute undertaking, but I can agree to take this back to see what the Government can do with it.
I hope that that shows that I do not disagree with many of the philosophical viewpoints that have been put forward. Also, on the question about people being placed in custody for minor offences, sometimes the tables are a little misleading. I offer to write to the Committee with a broader explanation. Many offences in the table, which may include robbery, for instance, would not be listed as violent. There are issues about the description and categorisation on which I offer to provide an aide memoire, if noble Lords would find it helpful.
Turning to Amendment No. 6 I accept that, in every case where a court is contemplating a custodial sentence for a child or young person, the court ought to consider whether a youth rehabilitation order with intensive supervision and surveillance or intensive fostering is appropriate before resorting to the sentence of ultimate severity. I agree with the noble Baronesses, Lady Linklater and Lady Falkner, over the importance of that option for the courts.
The problem that we have, which was hinted at by the noble Lord, Lord Kingsland, is accepting the proposition that the court cannot impose a custodial sentence unless the young offender has previously received a youth rehabilitation order with intensive supervision and surveillance. Of course, we see ISS as a last step before custody. Indeed, it has been designed for those young offenders who would, if it did not exist, be subject to a custodial sentence. We are at one with the noble Baronesses on that.
We believe that the Bill provides adequate safeguards to ensure that ISS is used as a direct alternative to custody. The points raised about experience by the noble Baronesses are interesting. The aim of ISS was to reduce the frequency and seriousness of subsequent offending among persistent offenders. Research shows that the frequency of offending in the intensive supervision and surveillance sample went down by 39 per cent over two years. I know we can all trade figures and I am always urging caution in that regard, but that must have some encouragement for all of us.
I am discovering that “uptariffing” is the word used in criminal justice circles. I understand what is meant by that and it is not good. It is to be avoided but we know what we mean. We are obviously concerned about that and our hope is that sentencing guidelines will assist sentencers in ensuring that penalties are appropriate.
There has been a very interesting debate about the balance between micromanagement, to which the noble Lord, Lord Kingsland, referred, and discretion to the judiciary. It depends which argument we want at any one time and we all have to be cautious and recognise that there is always a balance. There are times when the Government consider it is right to be prescriptive, and there are circumstances in which discretion needs to be given to the judiciary. We will argue about that.
However, we have the problem that the detention and training order is the only custodial order available to the youth court. Generally, it is the sentence available to the courts for a juvenile who has committed an offence which, if committed by an adult, would be liable to a maximum sentence of less than 14 years’ imprisonment. All the same, as the noble Lord, Lord Kingsland, suggested, it means that it is available for some very serious offences. For example, an offender may have committed several violent offences previously and not received a youth rehabilitation order with intensive supervision and surveillance or intensive fostering. The clause as drafted would preclude the courts from imposing a custodial sentence where it deemed it necessary. For that reason, we have problems with Amendment No. 6, although I hope noble Lords will recognise that we do not have any disagreement at all with the general principle of it being used as a last resort for custody.
These are not philosophical musings on this side of the Committee, as the Minister seems to suggest. We are dealing with practicalities and realities. “Last resort” is always mouthed. It has been mouthed for the last 15 years that prison is the last resort, but political pressure has driven the judiciary, whether at the magistrates’ court or the Crown Court, to increase sentences over and again. “Retariffing”, or whatever word the Minister used—
Uptariffing, which sounds like something to do with swans, has been going on due to political pressure from both governing parties over the last 15 years. We look to this Government to put a stop to it. The Sentencing Guidelines Council does not make any difference; the political pressure continues. The Bill unhappily has failed to meet that challenge. Amendments Nos. 5 and 6 are attempts to do precisely that.
I wish I had never used “uptariffing” and I will now never be forgiven or forgotten for it.
I did not mean to imply that the debate was a meandering of pleasantries that had no impact on the reality of young people in custody or going through the youth justice system. If noble Lords thought that, I apologise. I take this issue very seriously indeed.
As far as political pressure is concerned, inevitably we are all conditioned by public opinion and there has been a debate for some years about the appropriateness of custody. However, I think I have made it clear from what I have said today that we regard custody as the last resort. The development of youth rehabilitation orders is a reflection of that, and intensive supervision and surveillance programmes are part of that philosophy.
I have said that I have a problem with Amendment No. 6 because we think it would unduly fetter the discretion of the judiciary. I am very willing to take back Amendment No. 5 to see whether the Government could support it or something like it.
I express my joy and gratitude at what the Minister has said concerning the intention that there should be a directive issued by the Sentencing Guidelines Council in relation to youth sentencing. As the Committee will well know, it is a most high-powered body presided over by the Lord Chief Justice.
Under the Criminal Justice Act 2003, a breach of the guidelines does not render a sentence unlawful, but it is within a whisker of that result because the clearest hint is given to the Court of Appeal that the sentence would be unsupportable. For that reason, what the Minister has said has come very near to everything that would have been achieved by the amendments we have been discussing on a declaration of custody being the last resort. In other words, I regard the Minister as being almost totally rehabilitated. I wonder whether he could give us some idea whether the publication of such a guideline would coincide roughly with Royal Assent.
I cannot answer that because it is not for me to dictate to the guidelines council. It will have to give careful consideration to it. Of course, I can well understand why the noble Lord wishes to see the guidance available as soon as the Act was brought into operation.
When the Minister talked about my remarks about the Government giving a lead, he seemed to think that what I was asking for was a lead on the subject of how most people are all right. What I was asking for was a lead on whether custody actually works for young people. Does the Minister think that the Government would be prepared to say that custody is damaging for most young people? That is what I was asking.
Clearly we are not satisfied with the outcomes of custody for many young people. Alongside the statement I have repeated that this should be seen as a last option, the introduction of youth rehabilitation orders and the other programmes, it is clear that we need to do much more in terms of educational programmes and reintegrating into society young people who have been in custody. That is where our joint work with the Department for Children, Schools and Families is so important.
I am afraid that custody, although a last resort, is a necessary option. We recognise that we have to do much more for those young people who are placed into custody.
Once in a young offender establishment, an elderly senior officer admitted to me that until a speech and language therapist had explained to him how he could deal with young people, he and his colleagues had been damaging them because they had been treating everything as bad behaviour and punishing them accordingly, rather than getting to the root of what was wrong. I believe that that goes to the heart of the administration of young people’s justice.
Before the Minister loses his train of thought on Amendment No. 6, I should like clarification on something he said that confused me. He suggested that Amendment No. 6 would rule out the ability to bypass the system on the sentencing of certain offences. Does he not accept that Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000, or “dangerous offender” sentences under the Criminal Justice Act 2003, cover all the serious and potentially serious violent and sexual offences? Examples are murder, manslaughter, arson, rape, sexual assault, GBH/wounding with intent, firearms/prohibited weapons use/possession/distribution and robbery/assault with intent to rob, domestic burglary/aggravated general burglary and drugs class A to C production/supply/possession with intent to supply. All those things would still stand where they do.
My understanding is that the amendment applies to detention and training orders. They can still be given for some serious offences, such as inflicting grievous bodily harm and even racially aggravated grievous bodily harm. I am happy to write to the noble Baroness with more details, but the advice I have been given is that what most people regard as serious crimes could be encompassed within her amendment.
We have gone on for more than an hour and I thank all noble Lords who have spoken. In the debate on a previous amendment, I quoted the Benefit of Clergy and the general confession. On this amendment, we will move from the Book of Common Prayer to the King James Bible, which says something about there being no joy in heaven greater than that of a sinner that repenteth. I thank the Minister; it is a bit unkind to put him in the position of a sinner—perhaps he is a minor misdemeanourer. He has said that he will take the amendment away, for which I am extremely grateful.
When I give speeches to schools, I always start by saying, “The youth of today show no respect for their elders. They have no manners and they are idle and feckless”. One watches the faces becoming angry. One then says, “Don’t worry, that was written on clay tablets in Sumeria 2,500 years ago”. We must not, at our advanced age, think that the youth of today are any worse or better than we were. I wince with embarrassment when I think of some of the things that I and my friends did as children, or even slightly older—actually, yesterday, now I come to think of it. Having said that, I really am pleased that the Minister will take this away. I have not bounced this by the noble Baronesses, Lady Linklater and Lady Stern, but before he brings it back, perhaps we could see him and decide whether we can have an input. I am pleased that the noble Baronesses are acknowledging this.
I was very impressed by the comments of the noble Lord, Lord Ramsbotham, about targets. I do not think that that is totally germane to the amendment, but it is germane to what is going on behind it. That is something for policy rather than amendment—I do not quite see how it could be worked into an amendment. I thank the Minister for what he has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6: After Clause 1, insert the following new Clause—
“Youth rehabilitation order with intensive supervision and surveillance
In section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18: detention and training orders), after paragraph (b) insert—
“(c) in relation to an offence committed after the commencement of section (Youth rehabilitation order with intensive supervision and surveillance) (3)(a) of the Criminal Justice and Immigration Act 2008, unless he has previously received a youth rehabilitation order with intensive supervision and surveillance under that section.””
The noble Baroness said: I have already spoken to this amendment. I thank all those who participated in a debate which I think is central to the Bill. I am particularly grateful to my noble friend Lady Carnegy of Lour—she is indeed a friend. There has been no dispute, except perhaps with the Minister, who appears still to think that our amendment would in some way curtail options. Perhaps once he has read Hansard, he will review his position.
If there is to be a debate on the amendment, it must be moved.
This is Committee stage, and I take the opportunity to say that I believe that the advice I have received is right. However, I will write to the noble Baroness setting out in detail the reasons for that, so that there can be further consideration.
7: Schedule 1, page 150, line 10, leave out “or an officer of a local probation board” and insert “, an officer of a local probation board or an officer of a provider of probation services”
The noble Lord said: In moving Amendment No. 7, I shall also speak to Amendments Nos. 8 to 11, 18, 21, 24 to 27, 42, 42A, 50 to 62, 63A, 64A, 179 and 180. These are miscellaneous, minor and technical amendments, but, out of courtesy to the Committee, I intend to speak briefly to them. They come in two batches: I will deal first with Amendments Nos. 24, 63A, 64A, 179 and 180, which make up the smaller batch.
Amendment No. 24 ensures that the provisions in Part 1 are properly aligned with Armed Forces legislation and vice versa, and that the provisions fully reflect the new probation arrangements in Part 1 of the Offender Management Act 2007, which are to come into force in phases from 1 April 2008. Amendments Nos. 63A and 64A to Clause 7 simply remove definitions which we have concluded are redundant in this context. Amendment No 24 to Schedule 1 ensures that the schedule reflects the special sentencing powers of service courts. Amendments Nos. 179 and 180 to Schedule 36 ensure that the Armed Forces Act 2006, which applies the Criminal Justice Act 2003 for certain purposes, reflects the amendments made by the Bill to that Act. The amendments ensure that the civil and military sentencing frameworks remain in balance.
The remaining amendments in this group, starting with Amendment No. 7, are necessary to make reference to Part 1 of the Offender Management Act 2007. They ensure that the duties and responsibilities that the provisions on youth rehabilitation orders place on local probation boards are also placed on other providers of probation services. Noble Lords know that the Offender Management Act 2007 places the statutory duty for the provision of probation services on the Secretary of State. The Secretary of State may make provision himself, or may contract with other organisations to provide those probation services. Any other organisation, whether public, private or third sector, that is so contracted will be referred to as a provider of probation services. The staff delivering these duties will be known as officers of a provider of probation services.
During its passage through Parliament, the then Offender Management Bill was amended to ensure that probation services delivering assistance to courts would be carried out by public-sector providers. This measure can only be repealed by an order, subject to the affirmative procedure. An order subject to the affirmative resolution procedure, making similar consequential amendments to both primary and secondary legislation, is about to be laid in draft before Parliament. This order also seeks to ensure that the duties and responsibilities currently placed on local probation boards across the statute book are also placed on the new probation structure.
Phased implementation is planned for the introduction of Part 1 of the Offender Management Act 2007, with the first phase being implemented from 1 April this year. There will be references to both local probation boards and providers of probation services on the statute book in the short term. These amendments update the Criminal Justice and Immigration Bill to reflect the dual references to both local probation boards and providers of probation services. I beg to move.
On Question, amendment agreed to.
8: Schedule 1, page 151, line 2, leave out “or an officer of a local probation board” and insert “, an officer of a local probation board or an officer of a provider of probation services”
9: Schedule 1, page 151, line 27, leave out “or”
10: Schedule 1, page 151, line 28, at end insert “; or
(iii) an officer of a provider of probation services,”
11: Schedule 1, page 154, line 16, after “board” insert—
“(ba) an officer of a provider of probation services,”
On Question, amendments agreed to.
12: Schedule 1, page 155, line 37, leave out from “not” to “a” in line 38 and insert “make”
The noble Earl said: Again, I speak from the point of view of the Joint Committee on Human Rights. When I discovered that it was not mandatory for children to be represented, I was completely horrified. That a civilised society could prosecute vulnerable, probably ignorant, deprived children, however brutish or unpleasant they might be in appearance, forcing them to appear before some court or other, without properly trained legal assistance, strikes me as abhorrent. I can put it no lower than that. It is almost certainly against Section 6 of the Human Rights Act, and it is against Article 12 of the UN Convention on the Rights of the Child.
I saw the noble Lord’s private secretary before we came in, and I asked her to ask the Minister to find out what percentage of children did not have legal representation. If the numbers are low, there can be no cost implications at all. If the numbers are high, it is a screaming scandal and has to be put right. As noble Lords know, Cardinal Morton’s fork worked out for Henry VII, as he said, that “if you do not look rich you are hiding your money, so I am going to tax you. If you do look rich, you have a lot to spend, so I am going to tax you”. On this issue, if there are none, it can be afforded, and if there are many, it must happen. I beg to move.
I support this amendment. I do not see how it can be said that we are treating custody as a last resort, unless we have secured that the court has the advantage of representation as to the circumstances of the offender and those surrounding his case. It is sometimes forgotten that it is the duty of a legal representative to assist the court, not simply to advance the case of his or her client. It is very much in the interests of the court, and therefore justice, that a child or young person should be legally represented in all circumstances, save the most exceptional. I am warmly in support of this amendment.
I am very grateful to the noble Earl, Lord Onslow, for introducing this amendment. I apologise for missing the first 30 seconds of his contribution. I think he said that the Joint Committee on Human Rights was very surprised to find that there is no legal requirement for children to be represented in legal proceedings, as indeed we were.
The Bill expressly provides for representation when a fostering order is being considered, but not when a child might go into custody. In correspondence with the Government, the Minister told the committee that this was a reasonable provision because there are already a number of safeguards in place to ensure that a young person will be granted publicly funded representation where necessary, mainly in the form of the interests of justice test in the Access to Justice Act 1999; and that legal representation is available to anyone facing criminal proceedings where it is in the interests of justice that public funding should be granted. The Minister also told the committee that accompanying guidance states that the court should give consideration to whether the defendant is of a young age, and to the defendant’s ability to understand the proceedings or to state his own case.
The Government also said, in probably the most significant part of their submission, that extending the scope of publicly funded representation for children,
“could impact significantly on legal aid funding”.
The Joint Committee on Human Rights, needless to say, was not convinced by the Minister’s arguments. The committee was surprised, given the provisions of the Convention on the Rights of the Child. I draw the Minister’s attention to general comment 10, issued by the Committee on the Rights of the Child in 2007. The general comment has a large section on the right of the child to be heard. Article 12(2) of the Convention on the Rights of the Child requires that a child be,
“provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law”.
The committee also stresses the right to effective participation in the proceedings. Finally, the committee says:
“The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence”.
The committee recommends that the state parties provide as much as possible for adequate, trained legal assistance. This is a rich country. The Committee on the Rights of the Child would clearly expect the United Kingdom to be able to afford trained legal assistance for children coming before the courts. It is my experience and, no doubt, that of those who are involved in this work that the children and families caught up in this system are overwhelmingly poor, inarticulate and ill resourced. They need legal help to make sure that the outcome of their confrontation with the system is a just one. I support the amendment moved by the noble Earl, Lord Onslow.
I, too, support the amendments very strongly, and draw attention again to two aspects. In our discussion of children and young persons with regard to the Bill, a very large amount of time has been devoted to advocacy and to making certain that advocates are available whenever disciplining young people is involved. Again, that links to the fact that this should undercut the whole administration of youth justice. The second subject of considerable concern was the suggestion that young juvenile asylum seekers and others should brief their own solicitors. Have you ever heard anything so silly when they do not have English as their first language and know nothing about the law, let alone about this country? This suggests that this whole business of the legal representation of the young needs to be looked at seriously right across the board and not only in the context of the amendment.
I, too, support the amendment, and shall speak to my Amendments Nos. 13 to 16, which are grouped with it.
I absolutely agree with the noble Earl, Lord Onslow, that it is astonishing that there is no presumption in Schedule 1 that children are entitled to publicly funded representation in criminal proceedings. In paragraph 19 in Part 2 of the schedule, a young person can be legally represented before a local authority residence or fostering requirement can be imposed under a YRO. However, no legal representation is required before any other version of the YRO can be imposed, including even the ISS. This astonishment was echoed by the JCHR, and so it should be by the rest of us when the outcome could be so serious, and with the long-standing implications of which we are all aware.
Furthermore, the best interests of the child are the primary consideration, as required by the CRC. As it happens, provision is made in the Bill for when a fostering requirement is being considered, and quite rightly, but why not for when all the other requirements, which have similar important implications, are being considered? What is the logic for excluding the other requirements for legal representation, in particular the ISSP, which may be imposed as a last resort before custody? What could be more serious for the future of a child than that? Indeed, a breach of the YRO may result in custody. It would be contrary to Article 6 of the ECHR, which says that legal representation is required for children to have a fair hearing. The court must be in a position to have all the circumstances of the child explained to it, particularly if the suitability and proportionality issues are to be properly addressed and if the child is to have all decisions properly explained to him or her.
I understand that the Government regard the “interests of justice” test as a safeguard under the Access to Justice Act 1999, with consideration given to the age and ability of the defendant to understand what is going on. I also understand that the Government have concerns, as we have already heard, about the potential costs of such representation for children in criminal proceedings. That is simply not worthy of the Government on such an important issue; I want to rap them over the knuckles for that. I also know that, because of costs, there is a risk that the children may get poorer representation. Neither of these possibilities is acceptable; rather, they underline the importance of explicit, statutory representation for children, unless in the unlikely event there happens to be an “informed waiver of representation”. It is inappropriate to argue, as the Government do, that legal representation would be unavailable to a child who was refused it, who failed to apply for it, or who behaved badly, given the potentially life-changing outcomes of the proceedings. Clearly, it must be in the best interests of the child that there is a general right to legal representation, and we wholeheartedly urge the Government to support our amendments.
I, too, support the amendment, with all the fervour that I can command. The case proves itself over and over again. Legal aid is a dark cloud that hovers on the horizon of justice all too often. This has a lot to do with the fact that those funds comes from a small department that has a limited budget and with the fact that comparatively small increases year by year reflect themselves in substantial percentages. I have been aware of that for many decades, and it is one of the great impediments to the development of justice in our land.
I have no doubt that there is a massive moral obligation and, I believe, a convention obligation on the Government, with regard to the rights of the child. It is not sufficient to say that the child’s situation must somehow or other contract itself into a situation that justice demands. It should be the other way round: in other words, the child has a right to representation unless the situation contracts itself out of the consideration of justice.
For those reasons, I urge the Government to reconsider the position. Not only is it a matter of justice, it is a matter of considerable assistance as far as the court itself is concerned. More time and money are lost by judges and magistrates going out of their way to satisfy themselves that they have covered every possible situation in relation to an unrepresented defendant than in the opposite case. That has been my experience.
For the reasons given by noble Lords in this discussion, I strongly support the amendment. I would like to underline what the noble Lord, Lord Elystan-Morgan, has just said.
First of all, for everybody—or nearly everybody—going into court is quite a frightening experience. For most children, it must be very frightening. They do not necessarily have family with them; they do not necessarily have family at all. It is a huge injustice to a child to ask him or her to go into court without anyone who can tell them how to behave and what to do or to alert the court to what is needed to be known. I really feel that this country is in the state of being unjust to children on this matter. It is also counterproductive—to use that appalling word—because, as the noble Lord, Lord Elystan-Morgan, has already said, children or other people who are not represented waste the time of the court. I know that from my own experience. It takes longer for cases to be heard; judges and magistrates fall over backwards to try to help the children, and cases that could be disposed of quickly, sensibly and to the best advantage of the administration of justice as well as the best advantage of the child drag on because the child is not represented.
There are good, practical cost implications. Of course, legal aid will be a concern, but, if legal aid is seen in the light of the cost of the administration of justice, an area at which, it seems to me, government almost never looks, we can see how much can be saved by spending legal aid.
I am sure that the Minister must listen with great interest to what my noble and learned friends have said. I add a supplementary question that he may care to write to me on.
I reflect on what my noble and learned friend Lady Butler-Sloss said about the confusion of children in such circumstances. The Michael Sieff Foundation, a child welfare charity of which I am a trustee, proposed some time ago that there should be child defendant packs for every child going into court. I would be grateful to the Minister if he could let me know what progress has been made in introducing such packs, so that every child, even if they lack legal representation, at least has this support to orientate themselves in the court—if they can read.
I did not intend to participate in this debate, but I found the remarks of the noble Lord, Lord Elystan-Morgan, and the noble and learned Baroness, Lady Butler-Sloss, compelling.
My experience as a lawyer suggests that the Government ought to think seriously about this situation. I find that it is impossible to support what is apparently on paper at the moment. I hope that my noble friend will say that he will think seriously about this situation.
Since 2 October 2006, defendants appearing before magistrates’ courts and youth courts have been required to pass the financial eligibility test to qualify for publicly funded representation. However, since 1 November 2007, all defendants under the age of 18 are passported through the means test. In the debate in another place held on the sixth day in Committee, the Minister, Mr Hanson, said:
“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”.—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 23/10/07; col. 186.]
By the expression, “those individuals”, I take him to mean everyone under the age of 18 who appears in court.
The determining statute for legal aid is the Access to Justice Act 1999. That ensures that all defendants must satisfy what is described as the “interests of justice” test to qualify for funded representation. That test plainly applies to circumstances in which someone is likely to be imprisoned, but more broadly it is better expressed as posing the question, “Is this individual’s liberty at risk?”. It is that issue which is of crucial significance, particularly in relation to youth rehabilitation orders. There are certain combinations of a youth rehabilitation order which would amount to quite a serious deprivation of liberty and would fall squarely within the interests of justice test.
The ideas that animate these amendments are compelling, but we all recognise that there is great pressure on the legal aid budget. The noble and learned Baroness, Lady Butler-Sloss, has rightly pointed out that actually there is a lot of misplaced weight on that budget because money spent publicly to fund representation saves an enormous amount of court time and leads more often than not to higher quality judicial decisions. But that is a general argument about legal aid upon which the Minister may or may not wish to express an opinion. The issue to which the Minister must address himself is how the 1999 Act bears on youth sentencing.
This has been an interesting debate. The amendments seek to ensure that all children and young persons are publicly funded where the court is considering opposing a youth rehabilitation order. The case has been argued with great force that there should be automatic funding, but I have to say that the Government would resist that. We believe that the existing arrangements for the provision of legal representation already provide sufficient safeguards for young defendants.
I want to reflect in part the words of the noble Lord, Lord Kingsland. Under the Access to Justice Act 1999, all defendants must satisfy the interests of justice test in order to qualify for publicly funded representation. In deciding this, the court takes into account, among other factors, whether the defendant may suffer serious damage to his or her reputation or whether the charge is punishable with imprisonment. The court also gives consideration to whether the defendant is of a young age and to their ability to understand the proceedings or to state their own case. As the noble Lord, Lord Kingsland, pointed out, since October 2006, defendants appearing before the magistrates’ court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation, but from November 2007, all defendants under the age of 18 have been passported through the means test. That change has been widely welcomed by the professional judiciary and the Law Society.
In practical terms, it will be extremely rare for a young person not to pass the interests of justice test. Indeed, the figures from January to December 2007 show that 95,000 legal aid applications were made, of which 1,598—1.7 per cent—failed the test. It is a small figure. Given his argument, the noble Earl will damn me if I do and damn me if I do not. I accept that it can be argued either way, but at least I have given him the straight figures.
Absolutely I damn the noble Lord if he does or he does not. A figure of 1 per cent when allied to what the noble and learned Baroness, Lady Butler-Sloss, has said, means that I could probably take the Minister out to dinner on the difference to the amount of money it is actually going to cost the legal aid budget. Not to have it in the Bill is, in my view, nothing short of barbaric.
That is a bit harsh, and to be frank if he were to do so, it would be a very good dinner indeed. So good, in fact, that all noble Lords in this House assembled would also enjoy a very good dinner. I will come on to the question of resources because, as noble Lords know, I am responsible for legal aid at the Ministry of Justice. I want just to say that we cannot ignore the cost issue. The question for noble Lords is where the interests of justice test might not be met. The kind of example I have been given is one such as where a young person aged 17 in full-time education is charged with a relatively minor crime such as being drunk and disorderly in a public place. There may be an aggravating factor such as using offensive language to members of the public. Such a person might receive a youth rehabilitation order, depending on other sentences he may previously have received. The offender is familiar with the court process, having been before the youth court for relatively minor offences on previous occasions. Custody is not an option for such offence as he is not working for a living, so he will not lose his livelihood. Such a person might be held not to satisfy the interests of justice test.
In answer to the noble Lord, Lord Kingsland, and the circumstances he suggested, I would have thought it rare for a young person who might receive a youth rehabilitation order not to meet the interests of justice test. Indeed, it is worth quoting from the Access to Justice Act 1999 the factors that the court has to consider,
“whether the individual would if any matter arising in the proceedings is decided against him be likely to lose his liberty or livelihood, or suffer serious damage to his reputation; … whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law; … whether the individual may be unable to understand the proceedings or state his own case; … whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and … whether it is in the interests of another person that the individual be represented”.
For the great majority of cases where the defendant is under 18 years of age, the interests of justice test will be held to be satisfied because the defendant would be considered to be unable to follow the proceedings. This is not being dealt with in isolation. The Legal Services Commission is about to start research into the consistency of decision-making under the interests of justice test. This will provide a much clearer analysis of the application of this test in relation to the under-18s and clearly it will inform any potential change of policy.
Why do we give automatic legal aid representation for local authority residence or fostering requirements? The rationale for that is because both the LA residence and fostering requirements will require the young person to abide at somewhere other than their usual place of residence. That is different from the other YRO options which, although offering perhaps the most stringent community sentence in some cases, particularly with ISS, will not result in the young person physically being removed from their home.
I understand the comments that noble Lords and the noble and learned Baroness, Lady Butler-Sloss, have made about legal aid and the interesting point that curtailing expenditure on legal aid may lead to additional costs in the administration of justice. That is a matter of which we are mindful. I am determined that the legal aid reforms should go with the grade of a more efficient system within the courts and that the incentives all work in the right direction.
On legal aid spending—I know that noble Lords will quote back at me that you cannot take all the figures for international comparisons at face value—we have the most generous system in the world. I am proud of that. We have to make sure that we spend the money wisely. There has been a huge increase in legal aid spending over the past 10 years—it now stands at £2 billion—and we have to be careful that we spend it wisely. That is why I am persuaded that we have it about right and the access to justice test means that the right decisions are made.
The noble Earl asks how much the 95,000 applications cost. I do not have the full figures with me—I shall try to find them—but the average cost per case of legally aided defence in the magistrates’ courts is £499. An estimated cost of agreeing to the noble Earl’s amendment would be about £800,000. He may say that £800,000 is not a lot of money, but it is. We have to make sure when taking decisions on legal aid that we have as cost-effective an approach as possible. For those reasons I am going to resist the amendment.
The Minister has not addressed one facet of the amendment. He has told us of the issues that have to be determined by the court in deciding whether there shall be legal aid and that 1.5 per cent out of the 96,000 cases, or whatever it was, failed the test. But when you take into account the time it takes the court to try to determine each of the issues—on some of which it must be quite difficult to come to a conclusion—taking the net figure, is it really not worth £800,000 to avoid those costs?
Will the Minister give careful consideration to the narrow point that I made about contracting out/contracting in? I do not suggest that there should be a blanket granting of legal aid in every case but, rather than the defendant having to prove that it would not be in the interests of justice for it to be refused, it should be the other way round and legal aid should be granted save in those cases where it would not be in the interests of justice to grant it. That is not being profligate with public money and it would add to the totality of justice in this situation.
The current system seems to work rather well and I would be reluctant to change it. I accept that in any consideration of resources one has to look at all the contributing factors and the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord have made important points which one has to reflect upon. Equally, these are cash-limited budgets. There has been a huge increase in the legal aid budget over the past decade and we have to be careful to ensure that we spend it as wisely as possible.
I apologise to the noble Earl for not responding to him. My understanding is that where a young person is arrested, cautioned and taken to the police station to be interviewed, the following process takes place: she will be informed of her right of access to free and independent legal advice and offered the services of the duty solicitor or her own solicitor. Those are the two main procedures. The noble Earl asked about information packs. I do not know the answer to that but I shall find out and let him know.
The Minister has not really answered the point made by the noble and learned Lord, Lord Mayhew, about cost savings. If there are 95,000 cases to be considered, what is the administrative cost? What is the cost in court time? It is not that you are considering only the 1.5 per cent of cases that are refused; you have to consider the whole 95,000 cases. The Minister will know that there was a time when the legal aid authorities decided that everyone should have legal aid regardless of their means and so on because the cost of administering the scheme as it then was far exceeded the savings on the very small number of people who did not qualify. We are in exactly the same position.
These youth rehabilitation orders will be imposed in a criminal court—it is not a family court, it is not a social agency—and the role of the lawyer comes in at the very beginning. We do not have plea bargaining in this country but we certainly have bargaining about charges—to what charges will the defendant plead guilty; what charges will the prosecution drop? An enormous saving in time and administration is made by bargaining of that kind. Then if there are pleas of guilty properly advised by a lawyer, the lawyer is then concerned with marshalling all those matters which are necessary for the court to come to a proper conclusion as to which restrictions and requirements would be necessary, in this case in the youth rehabilitation order that is being considered.
Lawyers are mechanics who help the whole system to work much more smoothly and much better than it otherwise would do. If you put into court unrepresented defendants it is bound, as the noble and learned Baroness, Lady Butler-Sloss, has pointed out, to slow the whole system down. The savings of £800,000 pounds are really—
I hear what the noble Lord says. I thought I had answered the noble and learned Lord, Lord Mayhew. It is sometimes difficult to aggregate figures, although we have the figures for legal aid, which I quoted. I am sorry, but £800,000 is still a considerable amount of money. My understanding is that, in the cases we are talking about, the test is refused if the offence is very minor, there is no likelihood of a custodial sentence, the youth is at the top of the age range and he or she understands court proceedings. I have said that the Legal Services Commission is going to undertake some research on consistency of approach. I am not aware that this is proving to be a huge administrative task, and in any case the LSC’s research may well pick up issues that we need to improve. Today, however, I am afraid I am going to disappoint your Lordships.
I am almost speechless—and, as your Lordships know, I have been known to chatter a bit. We are talking about £800,000. What did the Government spend on the Dome? Around £800 million, because the noble and learned Lord, Lord Falconer, encouraged them to. Yet they cannot find £800,000 to represent the most poor and vulnerable in court. I am convinced that it costs the courts more than £800,000 not to have them represented. Perhaps the Minister owes me dinner on the extra money that is being spent by the courts in saving £800,000. That is pathetic, and I have every intention of coming back to the issue on Report. I sincerely hope that on that occasion I will get even more support than I have had today. Through gritted teeth, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 to 17 not moved.]
18: Schedule 1, page 158, line 28, leave out from “team” to “, and” in line 29 and insert “, an officer of a local probation board or an officer of a provider of probation services”
On Question, amendment agreed to.