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Criminal Justice and Immigration Bill

Volume 698: debated on Tuesday 5 February 2008

House again in Committee on Schedule 1.

19: Schedule 1, page 159, line 26, after “specified” insert “and designated by the Secretary of State on the advice of the President of the Royal College of Physicians as”

The noble Lord said: First, I express my deep gratitude to the noble Lord, Lord Kingsland, for his undeserved compliments about the wording of the amendment, which is not really a finished product, but more of a probing amendment to try to elicit some information from the Minister about what will be provided by way of intoxicating substance treatment requirements, and how the courts will decide on the appropriate institution in which a particular offender will be treated. No one would contest the assertion that alcohol is an important factor in the aetiology of crime, and because of the catastrophic rise in drinking by young people, many are committing offences that bring them before the courts.

As an indication of the extent of the problem: in 2005-06, 5,280 children under the age of 16 were admitted to hospital for alcohol-related reasons; in 2006-07 that figure had risen to 6,707. We agree that the intoxicating substance treatment requirement, which can be imposed in connection with a youth rehabilitation order, is a necessary addition to Schedule 1. But we are concerned about whether the facilities to deliver this treatment will be available; whether they will be professionally validated and whether the courts will have the expertise to make decisions on detox and rehabilitation, which may well require different facilities.

The National Treatment Agency for Substance Misuse has published a review of the effectiveness of treatment for alcohol problems, and the noble Baroness, Lady Richardson, in her introduction, says that there is compelling evidence for investment in alcohol treatment, but that it is essential that it should be directed towards interventions of proven effectiveness. Last October the NTA told the Observer that the number of young people in contact with alcohol treatment agencies rose from 5,200 in 2005-06 to 6,707 the following year, so there is undoubtedly a growing demand. Yet there seems to be no strategy to provide the facilities that are needed; indeed, establishments are being closed. I was told that Phoenix Futures, for instance, is just about to close one of its residential establishments—or has just about done so. Nor does there seem to be any authority to validate the treatment to be provided under the orders. The Commission for Social Care Inspection, which registers residential establishments, has no expertise on the quality of the treatment offered.

Presumably, the treatment specified in the order will sometimes, if not generally, be residential, but those facilities are few and far between. In the light of the debate on the previous amendment, which the Minister resisted because it applied only in cases where a young person would be compelled to leave their home, I would be grateful if, when replying to this amendment, the Minister would say something about whether these alcohol treatments would invariably be non-residential. If not, the same arguments apply as they did to the previous amendment.

I beg leave to doubt whether, in every case, the treatment of severe alcohol problems can be done on a non-residential basis. In the provision of those facilities, there is inadequate co-ordination between PCTs and local authorities. In the new NHS operational plan for 2008-09 to 2010-11, there is nothing specific about alcohol treatment. If the orders are to work, they need to be embedded in a proper strategic framework with adequate funding and with professional validation of the facilities to be developed. I beg to move.

I support the very important amendment of the noble Lord, Lord Avebury, which fleshes out something that was already there in an entirely helpful way. I base that on my experience visiting young offenders. One was horrified at how many of them had alcohol problems recorded as being part of the problem and yet alcohol treatment was not part of the treatment that they were getting.

It has always struck me as unfortunate that there seems to be a difference in the content between what is done during community sentences and what is done in custody. There are many things that could be the same. There is no reason why education, work training or drug treatment should not be part of a community sentence. There is certainly no reason why alcohol treatment should not be part of such a sentence. Therefore, I hope that the provisions that are so ably set out by the noble Lord are included in requirements both in custody and in this part of the Bill, which relates to what should be done in community for them, because it is a scourge that badly needs more attention.

Another thing that we ought to take into account is that for some quite extraordinary reason there is a culture of deliberately going out to get what is called—and I think I can say this at this time of night—“rat-arsed”. That is a very long and old English tradition. The Venerable Bede complained of his monks getting too drunk. It is a very serious problem and it ought to be looked at against the drinking culture that the young of this country have had historically for thousands of years.

I will briefly add one comment on the numbers of young women who become pregnant as teenagers, and who are particularly likely to be within that group. The noble Lord, Lord Mitchell, has drawn attention to the dangers of women drinking in the early stages of their pregnancy. Having an alcoholic as a parent, or two alcoholics as parents, raises child protection concerns and often when the NSPCC looks into child abuse or maltreatment issues there are one or two alcoholic parents involved. If we can get in effectively early on, it would make so much difference to the lives of some of our most vulnerable children. Therefore, I welcome what is behind the amendment and look forward to the Minister’s response.

The British Crime Survey states that alcohol is a factor in no less than 47 per cent of violent crime. That breaks down to 45 per cent of incidents of domestic violence, 58 per cent of incidents of stranger violence and 51 per cent of incidents of acquaintance violence. It is central to violent offending.

All that the amendments of the noble Lord, Lord Avebury, are seeking to do is to put the treatment of alcohol-driven offences by young offenders on the same basis as alcohol-driven offences by adults.

A recent survey suggests that alcohol treatment funding made up only 6 per cent of the funding that drug treatment services receive. If that is an accurate statistic, it is an astonishing one. We know that drugs play an important role, particularly in theft and burglary. Nevertheless, it is violent crime that is most disturbing the general public—and, indeed, the Government—and it is plain that alcohol is a major cause.

The amendments will involve resources, but I think they will be resources exceedingly well spent to try and contain that problem. I will be most interested to hear the Government’s response.

We are grateful to the noble Lord, Lord Avebury, for raising what is undoubtedly a very serious issue which represents a considerable problem for the justice system in England and Wales. What the noble Earl, Lord Listowel, said about getting in early is obviously right as well.

As to whether these treatments take place in residential or non-residential settings, I do not think it will surprise the noble Lord to hear that in the great majority of cases, alcohol treatment requirements are discharged in a non-residential setting. Treatment is mostly provided on a voluntary basis. As to whether substance misuse treatment is currently available for young offenders, the answer is yes. Since 2004-05, all youth offending teams have been screening young offenders for substance misuse, ensuring that those with identified need receive assessment and the appropriate intervention. Interventions can be different—they include prevention or early intervention, which comes under what is described as tier 2, or specialist treatment under tiers 3 and 4. The majority of young offenders receiving treatment for substance misuse—that phrase includes alcohol misuse, because the Bill makes it clear that the two are treated under the heading of substance misuse—access services on a voluntary basis via provision commissioned locally, and I shall say something about resources before I sit down. However, although drug treatment and testing is available as a court order, the court does not currently have power to order treatment for alcohol or other substance misuse such as glue, aerosols and petrol. The new requirement will plug this gap.

Let me help the Committee by giving some figures. In 2004-05, 12,885 young offenders received an assessment, 7,672 received the early intervention under tier 2, and 2,973 received specialist treatment under tiers 3 and 4. By 2006-07, 13,373 young offenders were receiving assessment, an increase of about 500; 7,915 were receiving intervention, an increase of 250; and 4,823 were receiving the more specialist treatment. Those figures are of interest to the Committee, and there are others as well.

Will the noble Lord let me know how many of those came in the same category as the 17 year-old who was arrested for being drunk and disorderly and was not allowed legal representation, which the noble Lord, Lord Hunt, gave as an example under the previous amendment?

Much as I would like to promise the noble Earl that I can find those figures for him within a reasonable time, I am not sure that I can. However, I will make inquiries.

Amendment No. 19 would significantly narrow who could direct this treatment by making them effectively subject to approval by the Royal College of Physicians. Amendment No. 20 in the name of the noble Lord, Lord Avebury, would place a duty on the Secretary of State to maintain a central list of facilities offering this treatment to make such a list available to the courts. We do not believe that either of the amendments are appropriate, and I shall explain why.

We believe that restricting those who can direct intoxicating substance treatment only to those persons who have been approved by the Royal College of Physicians is, frankly, not practical. Such a restriction does not reflect entirely the context in which such treatment is delivered. In drafting the requirement in the Bill, we have worked closely with both the Department of Health and the National Treatment Agency. Their advice is that dependency on intoxicating substances can be resolved in a treatment intervention, as it is called, where the main worker does not have to be a medical practitioner.

Such a narrowly defined treatment provider would not allow the sort of flexibility required in the provision of this treatment. In some cases, frankly, the people providing the treatment will not have formal qualifications. For example, there may be instances where the treatment could be delivered by a person who has the necessary experience through their own previous experience of addiction. Everyone knows that those who have previous experience of wrongdoing or addiction are sometimes the very best at winning others away from addiction. For young people, such personal experience can provide—and this is my point—some of the most powerful testimony on the dangers of addiction to substances. They are not, I am afraid, liable to approval by the Royal College of Physicians.

I listened to that explanation with great interest and I absolutely agree. The same is true for drug workers, but is it not better when they are under the supervision of somebody who is qualified to see that what they are doing is part of a structured regime?

I am not sure that I agree that they are necessarily better under someone who, for example, was approved by the Royal College of Physicians, but there clearly has to be a supervisory structure. It is very important that all people in that structure are of high quality, but we do not want to limit those people to any particular qualification.

The current wording of the requirement emphasises that the treatment worker must have necessary qualifications or experience to direct treatment. This offers sufficient safeguards to ensure that treatment is directed by someone suitable for the role. However, I go back to the flexibility that is vital to ensure that a young person receives the sort of treatment that is tailored to their individual needs and circumstances. In case there are any doubting voices still around, this wording is consistent with the drug treatment requirement in paragraph 22 of Schedule 1 to the Bill, and the adult drug rehabilitation requirement in Section 209 of the Criminal Justice Act 2003. It is also endorsed by both the Department of Health and the National Treatment Agency.

I turn to Amendment No. 20. The proposed requirement on the Secretary of State to maintain a central list of facilities does not reflect the fundamentally decentralised arrangements for the delivery and funding of this treatment. Youth offending teams are referring young people to these services already. Indeed, the majority of young offenders who receive treatment for substance misuse access those services voluntarily. We anticipate that very few young people who have failed to engage with such treatment voluntarily will require a court order. Both funding and provision are devolved locally. Young people’s specialist substance misuse treatment services are currently funded via the National Treatment Agency. Provision is commissioned locally and youth offending teams are the largest commissioner of these services. It is the role of the local youth offending team to identify local facilities and providers, and to establish whether the services provided are appropriate for the young person subject to the order.

Information about suitable treatment services and facilities for a young person will be provided to the court as part of the pre-sentence report process, on which sentencing decisions will be made. The court will, therefore, receive the necessary information about the facilities being recommended through this process. A centrally held list of facilities will not add much value—perhaps a little, but not much. Indeed, a list would be unworkable and difficult to maintain to an appropriate level of accuracy. Because the treatment services are delivered locally, the maintenance of a central list would be overly bureaucratic and liable to be out of date quickly as treatment providers change over time. We believe that we have provided an appropriate framework in the Bill to ensure the effective delivery of the intoxicating substance treatment requirement and we accept absolutely the unanimous view of the committee that this is an important area.

I said that I would say a little more about resources. Alcohol treatment and general programmes to counter the misuse by young offenders that we are talking about in these amendments are included in general youth offending team work on substance misuse. Funding is received through the young people’s substance misuse grant and through local drug action teams’ and children’s services. Youth offending teams will normally engage young people voluntarily in substance misuse treatment without the need to resort to a specific court order. Our view is that very few young people will ever need alcohol or other substance misuse treatment as a requirement within a youth rehabilitation order.

I hope that that answers the various issues that have been raised. The noble Lord, Lord Kingsland, has indicated his concern as to whether what we are proposing will require further funding. Not all YOTs are funded to provide substance misuse workers to support screening, early intervention and referral to specialist services. As I have said, young people’s specialist substance misuse treatment services are currently funded via the National Treatment Agency’s pooled treatment budget which is included in the young people’s substance misuse partnership grant. Local children’s and young people’s partnerships are expected to play their part in ensuring that children and young people can access the full range of treatment modalities as outlined in the National Treatment Agency guidance. In practice, young people subject to this requirement will also be accessing services provided by this funding arrangement.

I invite the noble Lord, Lord Avebury, to withdraw his amendment.

Do I understand the noble Lord right in saying that it would be very unusual for a substance misuse order to be made under a youth rehabilitation order? Surely if someone is getting into trouble because they are slightly inebriated, and that is part of the cause of the violence or robbery, is it not something which must be addressed? Have I misunderstood the noble Lord, or has he said that this would not be part of a youth rehabilitation order? If so, it seems to be upside down.

The point we are trying to make is that a large amount of this treatment goes on voluntarily. The vast majority will continue to be voluntary on the basis that young people are picked up before they have committed the type of offence which requires a youth rehabilitation order and so will be dealt with voluntarily. When this provision becomes part of the Act in due course, there will be cases when it is appropriate that a youth rehabilitation order should have such a direction in it, but our belief is that that will not arise very often.

I feel that I need to go on worrying at this point. If a young person is drunk when they commit an offence, it would be crazy not to make it compulsory for someone to try to get it into that person’s pea-sized brain that getting sloshed causes trouble. It is something that that person should be educated about. This is what I find so odd. The idea that these young people are going to volunteer to be taught about alcohol seems slightly crazy.

The noble Lord said that the Government are providing an effective framework for dealing with this problem. Listening to the Minister, I have the impression that there is no framework at all. Who can set up these facilities? It would appear that any ex-alcoholic or even current alcoholic can do so. How is the court to know what places are available? Will the youth offending team go around trying to find a place with someone offering these services and include it in the pre-sentence report? How is it to be funded? We are not sure. It certainly is not a part of the youth offending team’s budget apparently and will come from somewhere else. The Minister is suggesting a ramshackle structure for the carrying out of these orders, not the tightly controlled suggestion made by my noble friend.

Furthermore, it is a little excessive if the criticism is that my noble friend is calling for a centralised list. As I understand the amendment, he is calling for the Secretary of State to make sure that there is a list, but it will not have to be centralised in London and made available nationally. It can be devolved via the Secretary of State to the local area so that it is available to the magistrates’ court faced with a sentencing problem. I would have thought the Government would have tried to get this into a better framework than that which has been suggested so far.

The Government will not be surprised to hear that I share the concerns of my noble friend Lord Onslow. If nearly 50 per cent of all violent crime is fuelled by alcohol, then at best the Government’s reaction to this amendment is complacent; at worst it is inexplicable.

Let me try again. I fear the noble Lord, Lord Thomas, took some pleasure in exaggerating what I said. The idea of alcoholics supervising those under treatment is ridiculous. It was not one that I talked about so I am very surprised at someone as experienced as he putting those words into my mouth. I wonder why he did it.

I am sorry if I hurt the Minister by exaggerating his point a little. He certainly referred to ex-alcoholics running these courses. As far as I can see, there is to be no accreditation of these people and so it could be an ex-alcoholic who slips a little from time to time.

That contribution and the one before are not in keeping with the spirit of the Committee so far. Whether or not it is because it is after dinner I am not certain. We all relax a little after dinner. But it is not worthy of the noble Lord to suggest that that is what we said.

I think the Committee agreed that it was a good thing that those who were reformed should be among those who helped and guided those who were now in trouble because they could teach them more. I think that was the point I made. If the noble Lord thinks that I was saying something different, I do not think I can persuade him otherwise. But that is meant to be what rehabilitation is all about.

Let me try again. It is worth considering the treatment requirements attached to the YRO within this context: they will be subject to the same considerations on availability and suitability as are applicable outside of the criminal justice system. However—and this is the important point—in practice, most young offenders with identified drug substance misuse or mental health treatment needs will receive treatment on a voluntary basis, supported by appropriate workers in youth offending teams. We expect that that treatment of these needs would be included as a part of a court order only when a young person had previously failed to engage with treatment services and when drug substance misuse or mental health had been identified as a factor in offending behaviour—for instance, committing crime in order to support drug substance misuse or while under the influence of drugs or intoxicating substances. Consequently the expectation is that there will only ever be a small number of young people who will require a court order to undertake treatment. We are confident that the availability of treatment should be sufficient to cater for those young people.

Youth offending teams will know of providers in local areas and supervise any treatment. I have said more than once that the funding is provided by the National Treatment Agency. If alcohol addiction is the cause of the offence for which the YRO is given, the court can give that requirement. The fact is that YOTs are giving alcohol treatment without recourse to a court order as part of their general work on substance misuse. All YOTs are funded to provide substance misuse workers and we believe, as does the Youth Justice Board, that only very few require court orders for substance treatment. If they require orders they will be given them, but just because an offence is committed by someone in drink, it does not follow automatically that the best order to make for them is one that involves treatment for drinking too much. There is a whole sequence of other orders that may be more suitable. For the noble Earl, who knows better than this, to suggest that everyone who is drunk and is brought before the court, even if they have committed an offence of violence, should necessarily get one of these orders attached to a YRO is frankly absurd.

The Minister is getting ratty. I am saying, and I think this is blindingly obvious, that alcohol, as my noble friend says, is part of the problem. People must therefore be told that and must, if possible, be helped. I come from a long line of people who have died of drink, so I know how difficult it is—

All I am saying is that this is very serious and the Government ought not to rely on the voluntary position.

Before we get to the serious part, a slur has been made about my contribution after dinner. It is fortunate for me that, if the Minister would like to express that outside the Chamber, he will find eight noble Lords who are sitting in the Chamber at the moment who had dinner with me and who know that I had a small glass of wine.

Absolutely no slur on the noble Lord was intended. He seems able to give out some stick but not really able to take it. I know him well and his contributions are always extremely welcome. My remark was not meant seriously, and I apologise if it caused him offence.

I have listened to a lot of this with some incredulity. It is a fact that alcohol is behind a lot of young people’s offences—that is proven. It is also a fact that there is not enough alcohol treatment available for them. To suggest that the solution should be voluntary is therefore quite absurd. They will not volunteer for treatment because they do not admit that anything is wrong with them. It is incumbent on the Government to go away and think seriously about this problem; it will not go away unless something firm is done, rather than leaving it on a voluntary basis.

Before the Minister responds, may I just follow that point and put a supplementary question myself? It would be interesting to be reassured that where a pattern of drinking is associated with the behaviour, there is appropriate intervention. One would wish to know how effective obligatory interventions are. Many of us were surprised how effective parenting orders were, for instance, because they obliged parents to take these classes, although for alcoholism it may work quite differently.

On the separate matter of supervision—I know it is getting late, but to my mind this is a crucial matter that often gets overlooked—I take the point that a former alcoholic doing such work can often provide a good intervention, but they would need to be well supervised when doing that because they themselves are vulnerable. I would be grateful if the Minister could provide a bit more information about what is expected in terms of supervision. It may be that within the National Treatment Agency that is clear in any case.

I shall make sure that that is done. I think that there is a misunderstanding about the voluntary aspect of the requirement. Many young people take up the scheme voluntarily. The figure of 13,000 which I gave earlier was for those who had done so. Many of them do it voluntarily; many, it is to be hoped, are cured by doing it. The Bill will make provision for part of an order to contain a treatment direction as well, but it is not right to laugh out of court the voluntary nature of some of the work that is being done on the people to whom we are referring. There are other directions that can be imposed under the order. It may be expected of people that they will go along voluntarily to have their alcoholism, or whatever their condition is, cured. There may therefore have been a misunderstanding.

Knowing the Minister as well as I do, and hearing his response to my noble friend’s sensible suggestion, I am surprised for two reasons. The first is that the Government seem to be being inconsistent. They say that the voluntary nature of the scheme works, yet in many other parts of the Bill, and in the clauses on prostitution in which I shall take particular interest, there is no question of the requirements being voluntary—indeed, prostitutes face detention if they do not comply with their orders. But for one of the biggest social ills facing the country, that of alcoholism in young people and the consumption of alcohol, voluntary treatment is OK. The second reason is that the Minister gave an insufficient assurance in his reply that either good guidance or a framework will be provided. That is not consistent with the quality of reply that we normally expect from him

I was not going to intervene on the amendment, but for the first time in a long time, I was not entirely convinced by what the noble Lord, Lord Ramsbotham, said about refusing to go if the treatment was voluntary. I have had the opportunity of mixing in my own family with people who do this kind of work. They say over and again that the treatment will work only if the person concerned really wants it to work and is committed to it. If they are there because they have been told that they must be there, we can forget it.

I do not think that any of us would say that to go voluntarily is not better than to go compulsorily—I concede that. I agree with the noble Lord, Lord Judd—not for the first time—that if one really wants to give something up, it is easy. I really wanted to give up smoking and it was dead easy. When I was told that I had to give up hooch because of health problems, I found it incredibly easy. I wanted to do it, and that is important. I therefore concede that the noble Lord is halfway down the track. Still, I ask what many young people would rather do: would they rather go and be lectured by a reformed alcoholic, employed by the noble Lord, Lord Thomas of Gresford, or go down the pub to drink illegally? The answer in the case of a lot of people is probably the latter. Even though voluntarism is better, it is to those people that one has to apply some pressure.

That is precisely what this Bill does. We hope that people who have offended and have been caught will understand that one of the reasons they have done so is perhaps because of substance misuse. An order will be made against them; they will be advised to go and voluntarily sort out their problems. Of course, if they do not do that or it is clear to the court that they will not, they will be required to under the terms of the order.

The contribution of the noble Baroness, Lady Miller, has persuaded me of this: I am conscious that this debate has not been satisfactory for Members of the Committee and I will, if I may, write to all those on the Committee with an explanation of how the voluntary nature of this fits into the order. Perhaps I may say once again to the noble Lord, Lord Thomas of Gresford, I really did not mean to insult him.

There is a substantial measure of agreement that has been masked by some sharp interchanges, which do not reflect the general sense of the Committee that alcohol and alcohol-related offences are very serious problems that need to be addressed and that while voluntarism must be given a chance to work, we would not be looking at this paragraph in the schedule if we did not find that ultimately an element of compulsion was necessary.

I agree entirely with and am a great fan of the pilots taking place in the National Health Service on brief interventions following what Robin Touquet of St Mary’s Hospital, Paddington calls “the teachable moment”—that when you get in the A&E department a young person or adult who has had an accident, or someone who is brought before the police for some criminal offence, you can sometimes persuade that person to think about his drinking habits by referring him there and then to an alcohol social worker who will persuade him that these habits have not been useful to him and that he needs to look at his way of life. So voluntarism is essential to the first stage in looking at people who come into the criminal justice system or the health system as a result of the consumption of alcohol. But it is not enough, and that is why we have this provision in the Bill.

I remain concerned that, as the noble Lord, Lord Kingsland, has pointed out, alcohol treatment accounts for only a tiny fraction of the total money available for drug and alcohol treatment as a whole. The Minister has explained that, while we have always had drug treatment orders, this brings alcohol into line for the first time. I applaud that principle; but then we have to look at the way in which alcohol and drugs treatment are each funded and ask whether that is commensurate with the damage caused by alcohol and drugs within the criminal justice system. My submission is that the funds available are not commensurate and we need to think very carefully before we leave this part of the Bill—perhaps not now, but on Report—about how we structure the help that we are going to give.

While I am not totally wedded to the idea that the Royal College of Physicians should be in charge of the process, there needs to be a strategy. I accept everything that the Minister said about the need for local control, but that has to be within some sort of framework of validation and you cannot have totally ad hoc designs for these treatments in every local authority or PCT. The noble Lord did not comment on my reference to the Review of the Effectiveness of Treatment of Alcohol Problems just published by the National Treatment Agency. Clearly it knows a lot about how this works. If that review has taken the trouble to look at the problem and to comment on the effectiveness of treatment, surely that should be fed into the system and we should not have PCTs or local authorities going off and doing their own thing in a manner that is not consistent with an overall strategy.

Let us leave this for the moment and come back to it on Report when we have had a chance to study the Minister’s letter. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

21: Schedule 1, page 160, line 4, leave out from “team” to “, and” in line 5 and insert “, an officer of a local probation board or an officer of a provider of probation services”

On Question, amendment agreed to.

[Amendments Nos. 22 and 23 not moved.]

24: Schedule 1, page 163, line 27, at end insert—

“( ) In sub-paragraph (2)—

(a) the references to a detention and training order include an order made under section 211 of the Armed Forces Act 2006 (c.52) (detention and training orders made by service courts); and(b) the reference to section 103(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6) includes that provision as applied by section 213(1) of the Armed Forces Act 2006 (c.52).”

25: Schedule 1, page 165, line 7, leave out “or”

26: Schedule 1, page 165, line 8, at end insert “or to an officer of a provider of probation services”

27: Schedule 1, page 165, line 22, at end insert “or (as the case may be) a provider of probation services operating in that area”

On Question, amendments agreed to.

28: Schedule 1, page 167, line 13, leave out paragraph 36

The noble Baroness said: The purpose of the amendments in this group is to ensure that the breach of a YRO should be dealt with in the youth court when the offender is under 18, or the magistrates’ court if he is over 18. Unless the Crown Court originally imposed the order and the magistrates’ court then considered that the breach warranted revocation of the order and resentencing of the young person, the youth or magistrates’ court should deal with the breach. The current arrangements are that proceedings for breach of community orders made against children and young people commence in the youth court if they are under 18 or the adult magistrates’ court if they are over 18. However, if the order was originally imposed in the Crown Court, the powers of the lower court are limited. Where the breach is such that the youth or magistrates’ court considers that the order should be revoked and the young person resentenced, then of course the case must be referred to the Crown Court. But national standards require that court proceedings are initiated for a third unacceptable failure to attend an appointment within a 12-month period. Frequently, breach action does not imply that the young person is making no effort to comply with the order. For instance, a young person on a standard six-month supervision order might keep more than 90 per cent of his or her appointments and still qualify for breach action. In many cases, the most appropriate course for the court is to allow the order to continue, perhaps with some additional punishment. At present, no cases of this sort would be heard in the Crown Court, even if the original order had been made there. However, the Bill provides that where a youth rehabilitation order is imposed in the Crown Court, subsequent breach proceedings should automatically commence in that court, unless the judge at the sentencing hearing specifically ordered that any further proceedings should be in a youth or other magistrates’ court. This provision would inevitably lead to a substantial rise in the number of young people processed for breach in the Crown Court, including a significant number whose compliance is such that revocation of the order is not required.

My concerns about the current proposals are as follows. It would be a disproportionately inefficient use of resources to increase the number of breach cases that are automatically dealt with by the Crown Court. The Bill as drafted would inevitably increase the workload of the Crown Court and lead to delays, when relatively minor breaches could better be dealt with in the youth court. Crown Court proceedings are confusing and intimidating, and unjustified for children when no resentencing is required. Finally, the trial of children in an adult court is in contravention of Article 30 of CRC, which states that the system for dealing with children should be distinct from that for adults. The UK has been criticised consistently for our provisions and the current proposals still would not comply with our obligations.

These amendments would ensure that proceedings for breach of a YRO would always start in the youth or adult magistrates’ court, as they do now for breach of a community sentence. They would not, however, affect the authority of the Crown Court in serious instances of non-compliance, where revocation is appropriate and the young person is to be resentenced. It would be more suitable in every way if all lesser cases were dealt with in the youth or magistrates’ court. I beg to move.

I wonder what would happen if, for example, a young person left care and moved from his foster parents at the age of 16 to live in something similar to bed-and-breakfast accommodation. If he found himself becoming very lonely and went back to see friends whom he knew he should not spend time with, would just spending time with them be in breach of an order or might their behaviour at that point result in a breach? It might be a circumstance more appropriately dealt with by a lower court, rather than going straight to a higher level of court proceedings.

Recently a chain of children’s homes closed, the implication being that the children lost their stable setting. They might have been there with their peers for 12 months or so and they would suddenly have had to find a new home with new people to adjust to. Therefore, the circumstances in a young person’s life can sometimes be very disruptive. I am suggesting that, as long as the young person acknowledges his fault, perhaps the professionals nearest to him can say, “Okay, we will accept it this once and we will not take you straight to the High Court to deal with it”. However, I do not know very much about the normal processes here; I am simply giving a couple of examples that may be helpful. I look forward to the Minister’s response.

We are very grateful to the noble Baroness for raising the important issue of a breach of a youth rehabilitation order. As we understand them, the amendments aim to take away from the Crown Court the power to deal with a breach initially and ensure that all proceedings for a breach where the offender is under 18 are commenced in the youth court. These are very important issues and we need to get them right so that the youth rehabilitation order establishes itself as a robust community sentence which enjoys public confidence.

We note the general desire to restrict the role of the Crown Court in the breach process. However, we believe that we need the flexibility provided in the Bill to allow cases to be transferred to the appropriate court for the breach to be dealt with proportionately. Where a Crown Court has sentenced a young offender to a youth rehabilitation order, I believe it is appropriate and sensible for the Crown Court to have the power to refer any breach or other proceedings back to the youth court.

The most serious cases involving young people are heard before the Crown Court. Examples of offences where a juvenile can be dealt with by the Crown Court are homicide or very serious offences where an adult would be liable to a maximum sentence of 14 years’ imprisonment or more, where a young offender is assessed as dangerous and has been convicted of a sexual or violent offence listed in Schedule 15 to the 2003 Act, or where a young person is jointly charged with an adult.

If the offence warranted being tried in the Crown Court because of its seriousness and the youth rehabilitation order had been breached on several occasions—the noble Baroness will know better than I do about the warnings set out in the Bill, which we will debate shortly—or there had been one serious breach, it would be right for this to be brought back before the Crown Court, as a custodial sentence for the original offence of more than two years might be necessary and the youth court would not be able to impose that. I rely for that argument on the excellent speech in Committee of the honourable Member in another place, Mr Burrowes, who is on the opposition Front Bench. He said about cases of young persons coming before a Crown Court:

“Naturally any such case is serious and should only exceptionally be dealt with using a youth rehabilitation order, so we are talking about the exceptional cases that can be dealt with in the community, rather than about someone who has been convicted of a serious offence and dealt with by imprisonment”.

No doubt speaking for his party he says:

“We are concerned that in such cases the sentencer should have full control of the order and be involved in its enforcement. We therefore welcome Paragraph 35 which gives the Crown court direct discretion and allows it to be involved in the order’s enforcement”.

He went on to say,

“Indeed it could be taken further”. [Official Report, Commons, Criminal Justice and Immigration Bill Committee, 25/10/07; col. 258.]

We are grateful for that support and I hope that support is here tonight as well

However, it may be best for the breach to be dealt with not by the Crown Court, but by the youth court or the magistrates’ court. A young offender may have been dealt with by the Crown Court as a co-defendant of an adult, or another juvenile being dealt with for a more serious offence. Where the Crown Court has made a youth rehabilitation order for the young person, then it might, depending on the circumstances, be entirely proportionate and reasonable for the Crown Court to direct that any further breach proceedings should be dealt with in the youth court.

It is clearly preferable, in these circumstances, that the Crown Court should have the power to direct that the youth court deal with any proceedings that may arise as a result of breach. Also, the youth court retains the right to refer cases back to the Crown Court, where they deem that the case warrants the more onerous sentencing powers of the higher courts. We have given the Crown Courts this power because we think it would be disproportionate in every instance to retain the case in the Crown Court and impose an unnecessary burden on that higher court. We accept that youth courts have the expertise in dealing with young people. Where the Crown Court wishes to refer the matter to the youth court to deal with, it is right that it should have the power to do so. We also believe it right that the Crown Court retains the power to have breach proceedings brought back before it where it may have taken a risk in making a youth rehabilitation order for a very serious offence. Amendment No. 33 would remove the power to amend the youth rehabilitation order on breach and restrict the youth court to either imposing a fine or resentencing

In addition, because every case that might be heard in the Crown Court would first have to be heard in a youth court, the matter of bail would have to be considered. Therefore, it could lead to an increase in the use of custody if there are delays in court appearances. We do not believe that that is an acceptable position. For those reasons, having thanked the noble Baroness for raising this important issue, we ask her to withdraw her amendment.

I thank the noble Lord for that explanation. Where we differ is really in a matter of emphasis. Clearly we have absolutely no quarrel if any matters that are serious should warrant an appearance in the Crown Court. It is a matter of dealing with breaches where the matter is not so serious, retaining it within the ambit of the youth or magistrates’ court—where it could be more appropriately dealt with—as well as relieving the Crown Court of what is otherwise a matter which should not necessarily detain it.

I shall read carefully the Minister’s reasons and, for the moment, beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Schedule 1, as amended, agreed to.

Clause 2 agreed to.

Schedule 2 [Breach, revocation or amendment of youth rehabilitation orders]:

29: Schedule 2, page 168, line 21, leave out paragraphs 3 and 4

The noble Lord said: National standards for breach proceedings require the responsible officers to issue warnings for unreasonable instances of non-compliance and to initiate breach proceedings where there are three unreasonable failures within a 12-month period. Currently, there is discretion to depart from this in exceptional cases and with the authorisation of the youth offending team manager. The Bill removes that discretion.

What evidence is there that this change is necessary? Statistics suggest that youth offending teams already take non-compliance very seriously. Between 2000 and 2004, for instance, the proportion of supervision orders returned to court for breach action rose from 7 per cent to 21 per cent. It is not accordingly clear that there is any need to legislate to make enforcement of orders a statutory duty.

I suggest to the Minister that these provisions are damaging in a number of respects. First, they potentially harm the relationship between the YOT staff and the offender. Effective work with young people in trouble is dependent on the establishment of a good relationship between the staff and the young people for whom they have supervisory responsibility. Secondly, the change will lead to a significant increase in court workload, with no evidence of any corresponding advantage. Thirdly, it will lead to court appearances in many circumstances where an offender is genuinely trying to comply but is failing. Fourthly, it will inevitably lead to an increase in the number of children in custody. Fifthly, it will reduce or expunge entirely a number of innovative practices that have grown on the flexibility of the current rules.

Moreover, the Bill will lead to the anomaly of YROs being subject to statutory breach but reparation orders and post-custody supervision for detention and training orders continuing to be governed by national standards with YOT discretion, despite being for more serious offences. I add that warnings of these breaches should always be made in writing and there should always be clear evidence that the warnings have been received by the individual who is subject to them. I beg to move.

I think that the Minister indicated that he might write to me on the comments that I made on the preceding amendments, which I think are also relevant to this amendment. I am not sure whether I understood the Minister’s gesture, but I would be grateful for a response. The concerns that I expressed hold here, too, and I would like reassurance that there will be sufficient flexibility. For instance, if a child has a bereavement or his parents separate, there should be flexibility to enable a discussion in which people can say, “Your behaviour has deteriorated. Why? What’s going on here? Is it necessary for us to come down very hard?”.

We are always happy to write to the noble Earl, on this occasion as on any other.

I am grateful to the noble Lord, Lord Kingsland, for putting his important points so succinctly. This is an issue on which we disagree, as I think was shown in the debate in another place. I shall try to explain why. We think that placing national standards for breaches on the face of the Bill is important to ensure that everyone—courts, young people, sentencers and the general public—is aware of the standards that apply to community orders and the consequences of inappropriate behaviour. If there were no flexibility in these standards, the noble Lord would have a strong point, but I argue that the degree of flexibility answers his concerns.

Paragraph 3 of Schedule 2 states:

“If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with the youth rehabilitation order, the responsible officer must give the offender warning”.

It follows that if there is a reasonable excuse, he does not have to give the offender a warning.

The Bill sets a limit of two formal warnings that may be issued to a young offender in a 12-month period following which, on a third breach in that period, proceedings must be instituted. I repeat that a warning cannot be given unless there is an unreasonable breach. It also allows for immediate court action to be taken by the responsible officer when the breach is so serious that it warrants immediate court action. I do not think that anyone would disagree with that.

The provisions reflect the current national standards of the Youth Justice Board for breaches. They are in the Bill as clear evidence—this is important to the public—that breaches will be pursued vigorously and a consistent standard applied nationally. It was only a few weeks ago when a colleague of the noble Lord, Lord Kingsland, in another place, the honourable Edward Leigh, in his capacity as chairman of the Public Accounts Committee said something that was quoted in the newspapers. The Times states:

“Too often offenders who have been given a community order are escaping elements of their punishment and rehabilitation. This is because the Probation Service, which manages offenders serving the orders, often fails to ensure all elements of an order are completed before it expires. In fact, the service does not know how many orders have not been completed, nor how many offenders break the terms of their orders”.

We do not have to agree with Mr Leigh, but that is what he in his important position said, and it may be, unless we are careful, what the general public begin to feel. We cannot have the public losing confidence in community sentences. Once that confidence evaporates—

That argument is pernicious. Mr Edward Leigh was obviously pointing to a failure of the system, but the Minister seems to be attributing the flexibility in the system which we all want to keep, as the reason, when it is the system that does not work. I imagine that it is the Government’s responsibility to make the system work, and not necessarily to use a sledgehammer to change the law to make it work. The law is there and we believe that it works. If it is not working because certain parts of the executive agencies are not working, that problem must be resolved. It is counterintuitive.

I take that point, but one of the problems that the National Audit Office pointed out—I am not saying that I agree with the language used by Mr Leigh—was that breaches sometimes were not dealt with. Breaches could occur but no one took any notice of them.

If breaches occur and no one takes any notice, any number of Acts of Parliament can be written, but if no one pays any attention to the law, the muddle does not go away by creating another law. The muddle goes away by getting people to get their act together. The noble Lord was admitting that acts were not got together. The noble Baroness was saying exactly what I am saying, although she did so in possibly rather more delicate and refined terms—that if something is not working, the Government should not immediately rush to the statute book to change it. One of their faults is that they have been doing that for 10 years. They should get the system to work before changing the law.

We are putting the national standards in the Bill, so that everyone knows where they stand. The Youth Justice Board’s current national standards are flexible, as I shall come to in a moment. My argument is that it is essential that community sentences are, and are seen to be, rigorously monitored and provide confidence—

“It is essential that they should be rigorously monitored”? The noble Lord has just said that they are not being rigorously monitored. Changing the law and putting it in the Bill will not make one jot or tittle of difference to the amount of rigorous monitoring that will go on.

It will not change it in itself, but it will make one jot of difference. They have to be rigorously monitored and they have to provide confidence. That is the point that I am trying to get across—that enforcement action will be taken when necessary. That is what we do by writing it into the Bill, so that everyone knows where they stand. We are determined to ensure that the youth rehabilitation order and, indeed, all community penalties, are rigorously enforced, as we are determined to ensure that they are widely used by the courts. We want them to be widely used by the courts and accepted as robust by the public, as do the noble Earl and the noble Baroness.

It is often a challenge for some young people to comply with some of the most basic elements of a community order—the noble Earl, Lord Listowel, made that point clearly—such as being somewhere at a set time. That is recognised in the flexibility allowed for in the breach process, as the responsible officer makes the decision about what is a reasonable excuse. That allows that officer to take account of the young person’s age and maturity. It also allows the officer to take into consideration the fact that the young person may be dependent on a third party—for example, a parent—to get them to an appointment. I assure the Committee that our expectations are that current practice, as governed by national standards, will and should remain unchanged.

Youth Justice Board national standards provide more detailed guidance to responsible officers to help them assess what is a reasonable excuse. We all know that there has to be a balance between enforcement and local management discretion, especially where young people are concerned, but action must be taken where the breaches can no longer be considered as minor infringements—where there is no reasonable cause for them.

This is not about alarm clocks failing to be set at the right time for an early appointment; this is not about a young person missing an appointment because he or she is in hospital; this is not about punishing young people because their parent or guardian could not or would not drive them to an appointment. This is about those occasions where a young person refuses to engage with the terms of their order. That is why local discretion is built into the procedure. Local youth offending team workers will remain responsible for the orders. It is they who know how best to manage compliance based on a number of factors which need to be taken into account, and they will have the knowledge of the young person for whom they are responsible.

Our case is that we must ensure that there is a common procedure which is clear and transparent to all. We are satisfied that there are sufficient safeguards to avoid young offenders being returned to court for minor infringements, and we believe it right and appropriate that a clear standard be set out in the Bill on when breach action must be taken.

The noble Lord, Lord Kingsland, said that he believed that that would inevitably result in more court appearances and more young people remanded in custody. All that the breach arrangements do is codify existing national standards. We do not expect there to be any change to existing practice. As I have repeated several times, the arrangements allow for reasonable excuse, which can be taken into account. Therefore, we do not expect the result of including that in the Bill to be additional demands on courts or an increase in the use of custody for breach. I am sorry that the noble Lord and I are probably not in agreement on that. I have attempted to explain why we do not agree with the amendment.

The hour is late, and I do not want to take up too much time, but there is one aspect of what the Minister said that is not entirely clear to me.

As we understand it, the Bill would prescribe the circumstances under which the responsible officer must issue warnings and initiate breach proceedings. Breach would therefore become a statutory duty with no scope for practitioner or manager discretion. I hear the Minister saying that there will be discretion, but can I point out the slight contradiction in the position that we have heard today?

The first thing we had when we started was the amendment of the noble Baroness, Lady Stern, on the principles of the criminal justice system. We were told eloquently by the noble Lord, Lord Hunt, that we could not put that in the Bill because it would circumscribe possible action and limit the flexibility inherent in the system. We now hear that the Government want to limit that flexibility. It seems to me that we are coming with different voices to very similar arguments. I will not go on about that because the hour is late, but I expect we will return to that somewhat later.

I thank all noble Lords who have participated in the debate. The Minister said that the new provision reflected national standards, but I thought that the current situation was a reflection of national standards.

I am very much in debt to the noble Baroness, Lady Falkner, for two reasons. First, she felicitously explained that the community order system does not work at present for reasons that have nothing whatever to do with the flexibility of the way these breaches are approached. I cannot for the life of me see how the change that the Government are proposing in that context can change that underlying and melancholy fact.

I am also in her debt for bringing out a point that was made earlier during our debate on the amendment of the noble Baroness, Lady Stern, to which, as the noble Baroness, Lady Falkner, rightly reflected, the noble Lord, Lord Hunt, had assented—that the Government are committed to using custody as a last resort. In that debate, I remember saying to the noble Baroness, Lady Stern, that her amendment has to have bite; otherwise she will find that, however one can talk generally about the desirability of minimising custody, if one looks at the detail one will see that that principle is undermined at every turn. Here is a very good example of that principle being undermined, and the Government, despite their general concurrence with what the noble Baroness said, are the guilty party.

I also disagree with the Minister’s interpretation of the schedule provision on page 168. I found his argument uncharacteristically unconvincing. He is removing an existing discretion that has been responsibly applied and extremely valuable to the way in which these breaches are dealt with. Although I am going to withdraw the amendment now in Committee, I think that I will return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 31 not moved.]

I beg to move that the House do now resume.

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

House resumed.

House adjourned at 9.54 pm.