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Lords Chamber

Volume 698: debated on Wednesday 6 February 2008

House of Lords

Wednesday, 6 February 2008.

The House met at three o'clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwell and Nottingham): the LORD SPEAKER on the Woolsack.

Young Offenders: Review of Restraint

asked Her Majesty’s Government:

What is their response to the recommendation of INQUEST in its submission on the Review of Restraint that an independent inquiry should be established to examine the wider issues concerning the treatment of children in the youth justice system.

My Lords, INQUEST made the suggestion earlier in a letter to my right honourable friend the Lord Chancellor. My right honourable friend gave detailed consideration of the proposal in his reply. He concluded that the major questions are already being addressed; for example, by the joint review of the use of restraint in juvenile secure settings. For that reason, a public inquiry would not be justified.

My Lords, does my noble friend not agree that to have a justice system in which, since 1990, 30 children in custody, and therefore in the care of the state, and 201 young people aged 18 to 19 have died, and where victims’ families have had to wait up to two years to secure an inquest, suggests that there has to be an urgent, fundamental, root-and-branch review of what we are doing with our youth justice system and whether we are not manufacturing criminals?

My Lords, my noble friend would acknowledge that, notwithstanding many of the issues and problems that he raised, considerable emphasis has been placed on improving the youth justice system in recent years and ensuring that, as far as possible, young people are given programmes that help them to be rehabilitated and prevent reoffending. Any death of a child in custody is of course very much to be regretted. The aim of the Youth Justice Board is to do everything it can to ensure that that does not happen in the future and that those children are properly cared for and protected.

My Lords, the review of restraint has been awaited with considerable interest by those of us who are concerned about the use of restraint on children. Will the Government publish the review and, if so, when? Given that the review was set up in response to concerns that emerged during the inquest on the restraint-related death of Gareth Myatt, why have the Government still not formally responded to the rule 43 report by the deputy coroner, Judge Pollard?

My Lords, as the noble Baroness will know, the review of restraint was established following the debate in your Lordships’ House last summer on the statutory instrument which concerned the use of restraint. I understand that the review is due to report to Ministers by April this year. The chairs are consulting a wide range of stakeholders before reporting. Ministers will then consider the conclusions and make any decisions regarding what action needs to be taken and any publication.

My Lords, we spent much of yesterday— in fact, virtually the whole of yesterday—debating the entire youth justice system. We have now had a request from the noble Lord, Lord Judd, for a further inquiry into these matters following the Government’s own review of restraint and other matters. Bearing in mind the chaos that seems to exist in the Minister’s department, the Ministry of Justice, does he not think that it might be better if we just took away the whole of the Criminal Justice and Immigration Bill, went home early, and the Government thought out these matters slightly better and came back with some considered proposals?

No, my Lords. The Ministry of Justice is an excellent department, which is making a great deal of sense in co-ordinating its different responsibilities. We should not ignore the improvements that have been made in relation to young people in the criminal justice system. As I said yesterday, over our many happy hours of debate, there is a lot more that also needs to happen. However, I think that the Bill is perfectly ordered and rounded and we should proceed swiftly to take it through your Lordships' House so that we can get it on the statute book.

My Lords, I take it that the Minister would agree that it is quite indefensible that different standards should prevail in our national criteria to do with the care and protection of children and in the criminal justice system. I invite him also to agree that that means that the use of strip-searching and segregation in the criminal justice system for children is something that needs a very sharp examination, as the noble Lord, Lord Carlile of Berriew, recommended in his report for the Howard League a couple of years ago.

My Lords, I am grateful to the most reverend Primate for that question. With regard to strip-searching, I understand that the Youth Justice Board plans to have a review of it very shortly—and obviously we would be very interested to see the outcome. The principal objective of the youth justice system has to be the prevention of offending, because it is within the criminal justice system. However, alongside that, of course the welfare considerations of the child must also be considered.

My Lords, later this year the United Kingdom will be visited again by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The last time that it came here, it produced an absolutely devastating report and an indictment of the way in which we were looking after young people. In view of all that has been said in relation to the Bill and other aspects, is the Minister confident that this time we shall receive a clean slate from the committee?

My Lords, I shall not forecast the conclusions of that visit. All I will say is that in relation to restraint we have established the review, and we should see what the outcome is. We have debated the issue extensively and I suspect that this afternoon we will debate it more. We are committed to a youth justice system that has as its principal aim the reduction and prevention of offending. It does take account of the welfare of the child, with a lot of emphasis on rehabilitation, and resettlement in the case of those young people who have gone into custody, but with much more emphasis on community sentences when that is appropriate. That is very much the way forward.


asked Her Majesty’s Government:

What impact studies are carried out prior to licences being given for the release of grey squirrels into the wild?

My Lords, in fulfilling its statutory role in licensing non-native releases under Section 16 of the Wildlife and Countryside Act, Natural England assesses any actual or potential impact on native species and the environment. For example, before granting a licence to release grey squirrels, Natural England takes into account geographical information on the presence or likely presence of the red squirrel.

My Lords, I thank the Minister for his Answer. In his reply to the Question on grey squirrels asked by the noble Lady, Lady Saltoun, on 23 January, he emphasised that only six squirrels have been released. However, is he aware of Joan Ruddock’s letter to Mr Adam Afriyie in another place on 18 December in which, as Minister with responsibility for policy in this area, she states that Natural England granted licences for 257 greys to be released in 2007? Releasing six grey squirrels is surely a very different thing from granting licences to release 257.

According to figures from Defra and the Forestry Commission, 257 breeding greys will produce about 1,800 squirrels in one year—about the same number as that managed by the employee whom I employ to kill squirrels in protecting SSSI woodland. So why in another place has the Minister with responsibility for policy in this area gone against the published views of Defra, Natural England, the Forestry Commission and our legal obligations under the Berne convention and the EU habitats and birds directives?

My Lords, I am grateful to the noble Lord. When I answered the Question a couple of weeks ago, I answered the Question I had been asked about how many licences had been issued. I went on to talk about how many squirrels had actually been released. The two things are not necessarily the same. In 2006, for example, 147 squirrels were permitted to be released, but only six were released. The figure which the noble Lord gave on the number of licences issued does not necessarily represent the number of squirrels released under those licences. Natural England may not have allowed it for some reason. So there is probably no problem at all with the figures; one has to look at what one is asking. The latest year for which we have figures on releases of squirrels is 2006, and the figure is six, but more than six licences were issued.

My Lords, I wonder if any impact studies could have a special focus on the Isle of Wight, which is an exclusive and much cherished safe haven for the red squirrel? Any thought of releasing grey squirrels on the Isle of Wight might make the islanders rise up in rebellion. In asking this supplementary question, I should perhaps declare an interest as the owner of a border terrier which is allergic to all squirrels irrespective of colour.

My Lords, I wrote “Isle of Wight” on the front of my brief because, the last time I was asked about this, a noble Lord told me in the Corridor, “Next time, make sure you give a plug to the Isle of Wight”. So if anyone wants to see red squirrels, the Isle of Wight is the place to go. There are no greys on the Isle of Wight and, what is more, no greys are allowed. That is the reality.

My Lords, I declare an interest as chair of the Forestry Commission. I sympathise with the Minister’s view and hesitancy about taking action against red squirrels in most of the south of England. But in the north of England it is a different problem. Does he agree that we need to create buffer zones in the vicinity of the red squirrels so that they might survive? Has he had time to review my suggestion that no licences for the release of grey squirrels should be issued in the four northern counties, parts of north Yorkshire and the county of Lancaster?

My Lords, I think that my noble friend meant grey squirrels when he said red. However, with regard to what he asked me a couple of weeks ago, I can inform the House that Natural England and the Forestry Commission have looked into the matter, which is hardly surprising given that my noble friend is chairman of the Forestry Commission. Natural England has now decided to make a change on a precautionary basis and to increase the buffer zone around the nearby refuges in the north of England. The change will come into force immediately and any existing licences that cover that area will be reissued. I am grateful to my noble friend for asking the original question.

My Lords, the Minister will be happy to know, since Defra funds the project, that since this Question was last raised, in the past two and a half weeks, we have taken out—I refrain from using the word slaughter after the publicity last time—more than 1,200 squirrels. It is quite possible that Northumberland will be totally free of grey squirrels by the middle of the summer. In the light of this success, will he say whether Defra will review its policy on the eradication of grey squirrels in large parts of the country?

My Lords, I am grateful to the noble Lord: it seems that this is one area where Defra can really claim to be getting value for money in regards to wildlife. We are certainly happy to review that success. We need to build on it. However, since I last answered the Question, I have also discovered the famous Wild Boar Hotel at Crook near Windermere. It is doing very well in serving up grey squirrel canapés and pancakes.

My Lords, why are licences given at all for the release of these nasty little pests, which do enormous damage?

My Lords, they are released only on welfare grounds, and only six were released out of a population of 2 million. I think that that is not unreasonable. They are released only in areas where they are not a danger to songbirds, to forestry or to red squirrels, and welfare grounds are taken into account when licences are issued. As far as I know, there has been no adverse reaction to the release of those six.

My Lords, can the noble Lord say how many staff are employed in this business of issuing licences and performing the impact studies? In view of the reduction in staff that Defra is seeking, would it not be a good idea if the Government decided that squirrels are vermin and that they should not be saved under any circumstances, thereby saving a great deal of staffing in Defra?

My Lords, I do not know how many staff work on this, but it is minimal. Natural England is the operator of the Wildlife and Countryside Act and it is a non-departmental public body. It deals with all kinds of wildlife, both in licensing and in determining what action should be taken. Frankly, this probably adds up to a few paragraphs of work a day for someone. I repeat, however, that more licences are issued than squirrels released.

Local Government: Representing the Future

My Lords, I declare an interest as an old, white, middle-class, male councillor. Despite that, I beg leave to ask the Government the following Question:

How they will respond to the Councillors Commission report Representing the Future.

My Lords, the Councillors Commission report was published in December. The Government welcome the report and the stimulus to debate that it provides. We are examining the recommendations in more detail and are consulting on the issues it raises. An overall government response to the report and recommendations will be published after Easter.

My Lords, I thank the Minister for that reply and look forward to the government response. Is it not the case that if the Government want to get a more diverse range of people actively involved on councils, rather than using gimmicks such as issuing local gongs, qualifications and degrees in being a councillor, redundancy payments, pensions, exit interviews and even free focus leaflets—if I read the report correctly—for councillors to distribute in their wards, they ought to return to local authorities the powers and status that they had 30 years ago? Within local authorities, they should return to councillors the powers, respect and status that they had 10 years ago.

My Lords, we did much of that in the Local Government Public Involvement in Health Bill, which the noble Lord and I had the pleasure of debating at inordinate length last year. We should give credit to the councillors who are trying so hard to address a very serious problem. We have very little diversity now; much less than we used to have. For example, only one-third of councillors are women and only 4 per cent of councillors come from black and ethnic minority groups. We really need to do more. The Councillors Commission’s report is excellent; it has a range of very serious recommendations, which we will look at very positively.

My Lords, it is a matter of regret to me that a very serious report seems to indicate that the ideal of serving one’s community is no longer enough motivation to get people who are of sufficient quality properly to do the job of councillor. Will the noble Baroness tell the House what the cost of these proposals would be if they were implemented in full? Would that not properly be a charge exclusively borne by the ratepayer, or would it become part of general expenditure, which would then be eligible for a government grant?

My Lords, it is interesting that the report reflects that the majority of councillors say that they derive enormous satisfaction from their roles. The report ends by asking, “Why don’t they say so?”. That is surely the best incentive to get people into local government. In terms of how much it would cost, there is a range of proposals, from reducing the voting age to 16 to much else, which will be considered in due course, perhaps by a Speaker’s Commission. When we review these, we will look at affordability, together with all the legal and other implications that the recommendations hold for us.

My Lords, this is a very important and worthwhile review. The Minister has given us a list of people that the Government hope to see representing the people in their communities, but she did not mention younger people. It is very important that we get people from a whole spectrum of age groups representing their own peer groups. Are the Government doing anything about this?

My Lords, it was a very important aspect of the commission’s consideration. It came up with the celebration of good practice; for example, young mayors elected by young people in places such as Lewisham and Newham. In addition, the Prime Minister’s speech in July anticipated the establishment of a youth citizenship commission, which will look at how schools, colleges and all other educational institutions will engage with politics. We have just reviewed key stages 3 and 4 of the national curriculum on citizenship, with a view to building up the element of that curriculum that connects with local democracy.

My Lords, how are the Government going to respond to the proposal in the report that council by-elections should be abolished in favour of a sort of reserve system? Does she not agree that if local democracy is to be healthy, people who come on to councils must have their own personal mandate and not come in through the back door on someone else’s coat-tails?

My Lords, we have expressed some reservations about that proposal, and there have been demonstrations in Wales on the process. It will be considered along with all the other recommendations for term limits and so on that affect the operation of councils.

My Lords, does my noble friend agree that the problem is not just about the resources and the ability of councillors to deal with problems? The report indicates that in a number of ways. Is it not also about the problem of ordinary people in society not knowing how to use a councillor? One of the problems in our political system is that people often think that they must go to their Member of Parliament first because they see them as being at the top of the pyramid of power, instead of recognising that in many cases the first port of call should be the councillor. That is a difficult link to make. It is not apparent to me from the report that we are addressing that in the detail that is needed.

My Lords, one of the most important recommendations in the report is recommendation 1, which looks at how local government can promote the democratic process and address the question of people not having enough information. One of the paradoxes is that while 60 per cent of people think that their services have improved, only half think that their council is better. This is about closing that gap. A lot of it is about how we explain and get more out of the work of councillors, particularly ward councillors, who now have a duty to engage with and involve local people.

My Lords, the Minister said that she thinks most local councillors find the work very interesting and satisfying. Does that mean that she is not aware of the great dissatisfaction of councillors with the new cabinet structure, where they find a great dichotomy between those who are cabinet members and who therefore know everything that is going on in the council, and others who are not in the cabinet and who find that they are not informed to the extent that they were before this new arrangement?

My Lords, we discussed in the local government Bill what impact the cabinet system has over the committee system and certainly there are issues around that. The report addressed that and said that local government is no less important or interesting a place for councillors to be. The emphasis in the Bill now has changed to the engagement between the ward councillor and the individual constituency. There is a major job to be done to get people to understand what councillors do and what they can do for them. It is a challenge to which most councillors would really respond.

My Lords, is the Minister quite sure, in the light of recent events not very far from here, that paying councillors more and giving them greater expenses is likely to improve their standing in the eyes of the electorate?

My Lords, I do not think that there is any appetite for putting councillors on a professional footing. There is no indication in the report about that. Satisfaction is still derived from the notion of public service, which we are very glad about. Most councillors see serving the public as a privilege. While there are issues around allowances, they have to be considered in that context and not as a way of creating a different professional class.


asked Her Majesty’s Government:

What assistance they are providing to resolve the crisis in Kenya.

My Lords, UK Ministers and officials have been involved in intensive diplomatic efforts across Africa and with international partners to urge regional engagement, an end to violence and dialogue. We have given our full support to the Annan mediation mission. There can be no business as usual until the current crisis is resolved in a way that respects the democratic will of the Kenyan people. The Department for International Development has provided £2.2 million for humanitarian relief.

My Lords, I thank the Minister for that reply. The problems in Kenya arose following the election on 27 December between Mr Kibaki’s PNU and Mr Odinga’s ODM. There has been tribal violence, bloodshed and disputes concerning land. There was bloodshed in Eldoret, Kisumu and the Rift Valley. What is the Minister’s assessment of the election? Does he feel that there needs to be a rerun or a government of national unity?

My Lords, the noble Lord is correct. The election was simply not satisfactory. Doubts are left as to the real outcome of that election and we can have no confidence in a government formed on the basis of the announced election results. The EU observers, as well as those of the Commonwealth and others, have all made it clear that the elections fell far short of acceptable international standards. The EU Commissioner Louis Michel is currently en route to Kenya to deliver the preliminary election report of those EU observers.

On the noble Lord’s second question, we think there is so much tension in the country at the moment that a rerun of the elections would be enormously dangerous. At the very minimum, a government of national unity, to be followed at some future point by further elections, seems the most likely and sensible way forward.

My Lords, I welcome the enhanced mediation process under former Secretary-General Kofi Annan and the apparent acceptance by the parties that the process should be completed within seven days. Does this also imply that the parties will accept whatever verdict the Kofi Annan mediation team come up with, including a rerun of the elections at some future date? On the delivery of humanitarian relief, does the noble Lord agree that the obstruction of relief in western Kenya by the continuing violence there and the interruption of supplies from neighbouring countries through the port of Mombasa might warrant the referral of Kenya to the Security Council as a threat to peace?

My Lords, the noble Lord makes good points. First, the Annan panel has already dealt with the humanitarian issues. Both sides have committed to the establishment of a truth and reconciliation commission, to agree an invitation to the UN High Commissioner for Human Rights to send an investigation team to visit Kenya, and to the right of freedom of expression and assembly, which led immediately to the lifting of the ban on live broadcasts. They have also committed to the need to deal with the resettlement of those displaced and the provision of adequate security. The talks have now moved on to the more difficult political issues. I spoke to Kofi Annan a few hours ago. He said that both sides had made their opening political presentations and he felt that the hard bargaining would continue this afternoon.

On the role of the Security Council, it has already made one presidential statement. Yesterday the UN Secretary-General Ban Ki-moon briefed the council on his own visit, and that is likely to be followed by a further statement. We certainly agree that it may now become an agenda item of the council because there are significant regional implications. I was in southern Sudan last week and saw them in the increase of the price of fuel. I met President Museveni of Uganda later in the week, who confirmed that fuel and food prices in Uganda had gone up significantly, too, as a result of this crisis.

My Lords, the United Nations is engaged and senior African leaders are engaged. Does my noble friend see any role at all for the Commonwealth? Given the feeling of “winner takes all”, is there any prospect of power sharing before a possible rerun of elections?

My Lords, my noble friend rightly draws attention to the role of the Commonwealth. I have been in regular touch with Don McKinnon, the Commonwealth Secretary-General—most recently yesterday. At the moment there is room for only one negotiation, that of Kofi Annan. Obviously we are considering referring the Kenyan situation to CMAG, the ministerial committee of the Commonwealth, which deals with matters of this kind. But we want first to see the outcome of the Annan negotiations. Certainly there will be a role for the Commonwealth in supporting the strengthening of the Electoral Commission, and perhaps even the strengthening of the justice system, both of which are critical if confidence in government institutions is to be restored.

My Lords, I am glad to hear the Minister say that he thought the tensions were so great that, for the time being, talking of a further rerun of the election would not be practical. Does he agree that there has been a tendency, particularly in the British press, to take sides and to depict Mr Raila Odinga as the wronged party, whereas, of course, there is major skulduggery on both sides? Therefore, would he counsel that we not only avoid taking sides but that we avoid any further encouragement of massive demonstrations, as some of us argued from the start, because such demonstrations lead yet again to more bloodshed and more horror and that the concentration should be, as he rightly says, on urging some kind of government coalition and coming together of the two parties, so that they can counsel both of their tribal followers—Luo and Kikuyu—to stop killing each other?

My Lords, the noble Lord is quite correct. In a situation in which 1,000 have been killed and 300,000 displaced, it seems inappropriate to move immediately to elections. There needs to be a cooling-off period. Trust needs to be restored. While the conduct of the election is the immediate trigger to the violence, there are underlying causes and, I suspect, as the noble Lord suggests, certainly plenty of blame to be attributed to both sides. Hence the importance of an investigation by the UN High Commissioner for Human Rights and of a truth and reconciliation commission to assign blame where blame is due.

National Security: Chilcot Report

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:

“The Government are today publishing the results of work on the use of communications intercepts as evidence: the report of the committee of privy counsellors, drawn from the three major parties chaired by the right honourable Sir John Chilcot GCB. I am grateful to Sir John, Lord Hurd, Lord Archer of Sandwell and the right honourable Member for Berwick for that report. It is thorough, measured, detailed, and unanimous; and it properly reflects both the seriousness and the complexity of the questions that their committee was asked to address.

“Let me again pay tribute to our security agencies for all that they do—quietly and effectively—in the defence of our country. I have met and listened to those who lead our agencies, and many who serve in them and I praise their expertise, professionalism and courage, often in the most testing and dangerous of circumstances, but always in the best interests of our country. I acknowledge—as we all acknowledge—that what they do defends our freedom, protects our society, and saves lives.

“The use of intercept in evidence characterises a central dilemma that we face as a free society: that of preserving our liberties and the rule of law, while at the same time keeping our nation safe and secure. In July, in the first Statement I made on security to the House, I said that I favoured the principle of using intercept material as evidence in criminal cases if, but only if, a way could be found to do so while protecting the higher interests of national security. I therefore invited the cross-party Chilcot committee to advise on,

‘whether a regime to allow the use of intercepted material in court can be devised that facilitates bringing cases to trial while meeting the overall imperative to safeguard national security’.

“Today I am publishing a version of the Chilcot committee's report. The committee itself has prepared this version, which omits, in the interests of national security, certain sensitive facts and arguments. Its main conclusions and recommendations, however, are exactly those of the full report. Briefly, the report examines in detail both the potential benefits of accepting intercept as evidence, and the risks that might arise from such acceptance. However, it concludes that it should be possible to find a way to use some intercept material as evidence, provided—and only provided—that certain key conditions can be met. These conditions relate to the most vital imperative of all, that of safeguarding our national security. The Government accept this recommendation and take the accompanying conditions very seriously.

“Intercepts are strictly controlled under the 2000 legislation. Interception is allowed only if it is necessary to obtain information which could not be acquired in another way, and any interception must be proportionate to what it seeks to achieve.

“The relevant decisions of Ministers are overseen by a senior judge, the Interception of Communications Commissioner, who reports at least annually. An investigatory powers tribunal exists to consider complaints from the public and has powers to order appropriate remedies. The most recent figures for numbers of interception warrants are contained in the Interception Commissioner’s annual report, published on 28 January—1,435 intercept warrants were issued in the last nine months of 2006. That compares with 2,407 in the previous 15 months.

“The Chilcot report notes that there are already limited circumstances in civil and terrorist proceedings where intercept can be used in evidence. Each of these instances includes appropriate protections, such as closed proceedings, to ensure that the use of intercept does not put our national security at risk. For any new regime, the Chilcot report sets down conditions which start from the proposition that,

‘any material risk to the strategic capability of the UK’s intelligence agencies would be unacceptable’,


‘any disclosure of interception capabilities could have a profound impact on national security’.

This is right.

“The report also says that any resulting reduction in inter-agency co-operation,

‘could have a profound impact on law enforcement agencies’ ability to combat serious crime and terrorism in the UK’.

The Government also agree with that assessment.

“The report sets out nine conditions in detail. These relate to complex and important issues, including: giving the intercepting agencies the ability to retain control over whether their material is used in prosecutions; ensuring that disclosure of material cannot be required against the wishes of the agency originating the material; protecting the current close co-operation between intelligence and law enforcement agencies, which is crucial; and ensuring also that agencies cannot be required to transcribe or make notes of material beyond a standard of detail they deem necessary.

“The committee, which reported to us, acknowledges that further extensive work is needed to see whether and how these and other conditions, which are intended to protect sensitive techniques, safeguard resources, and ensure that intercept can still be used effectively for intelligence, can be met. This is a unanimous recommendation that the Government accept. We will proceed to develop a detailed implementation plan under which material might be made available to be used in criminal cases in England and Wales, subject—and strictly subject—to meeting all the Chilcot conditions.

“The report is clear that if the conditions could not be met then intercept as evidence should not be introduced, and the Government accept that. Similarly, the committee recommends that, in the event of a regime being introduced which later fails to meet the Chilcot conditions or otherwise threatens our security, that regime should be removed pending the introduction of another, under which the conditions can once again be met. The Government also accept that recommendation.

“The report also states that the committee has seen no evidence to suggest that the need for measures such as control orders would be reduced by the introduction of intercept as evidence. Designing a regime to meet the Chilcot conditions will require, as the committee notes, a substantial programme of work covering legal, operational and technical issues. This work must involve and engage the intelligence agencies, government departments, the legal system, and those responsible for communications.

“The Chilcot team has made it clear to me that the necessary work should be led by an implementation team within government and that that team should move ahead comprehensively and quickly. But the team has also told me that it would not expect the work to be concluded in time to inform the Counter-Terrorism Bill currently before Parliament.

“The Government strongly believe that it is in the national interest to draw on a wide range of expert external advice. The cross-party nature of the Chilcot report has been of great value. I am therefore grateful for the agreement of opposition parties that Sir John Chilcot, Lord Archer of Sandwell, the right honourable Member for Berwick, and another member to be nominated, will advise on privy counsellor terms during the next stage of the work.

“The Chilcot report also notes that communications technology is changing, and changing rapidly, with the switch towards internet protocol communications and the clear implications that that brings for our security. Accordingly, we have launched the interception modernisation programme to update our capability to ensure that under these new circumstances our national interests will continue to be protected. The new regime for intercept as evidence must be designed to work safely and effectively for this new capability too.

“As the Chilcot report states, the challenges ahead are complex and must not, and will not, be underestimated, but the Government acknowledge and endorse the valuable work of the Chilcot committee and are grateful for the committee’s support in our continuing efforts to meet the double challenge that we face as a nation. The challenge is to at all times and without fail protect our nation’s security while advancing the rule of law. This we will always seek to do. I commend this Statement to the House.”

My Lords, that concludes the Statement.

My Lords, I thank the Leader of the House for repeating the Statement. It is impossible to hear such a Statement without paying tribute to the noble and learned Lord, Lord Lloyd of Berwick. After all, he has used his presence here to press this idea on Government for years and it is but one more example of how much this House will lose when the noble and learned Lords are excluded from those Benches.

Many will wonder why the Government did not act earlier on the issue on the noble and learned Lord’s advice rather than waiting for the work of not only this committee but now yet another one to come. Perhaps the Government should consult more with the noble and learned Lord. I also join the noble Baroness in thanking the committee, most notably the noble and learned Lord, Lord Archer of Sandwell, and my noble friend Lord Hurd of Westwell. As the House will know, my party has for some time advocated the admissibility of intercept evidence in court. It was my right honourable friend Mr Cameron who suggested that a cross-party committee of privy counsellors should look at how intercept evidence might be used.

Of course we will want to study the report carefully, but it seems clearly to accept that intercept should be used, but also importantly to offer guidance on the vital question of how to use intercept to secure convictions while not imperilling national security. Our country has been targeted, hit and some families left pained and grieving, but thanks to the brilliance of our security services we have prevented many other atrocities. We need to defend our homeland and the safety and capability of our security services must be paramount. We must therefore give the fullest weight to their concerns. We must protect security service personnel and we must protect the vital intelligence-gathering techniques. We must, as the Statement says, have the flexibility to adjust to communication by new internet protocol technologies. We also need to ensure that the use of intercept in court does not jeopardise a fair trial.

Will the noble Baroness confirm that the Crown Prosecution Service is clear that the use of intercept will lead to fewer abortive trials? Can she say whether any assessment has been made of how many more terrorists could have been brought to book had intercept evidence been available? Does the noble Baroness agree with the report that Australia, a common law country, also at war with terror, shows how intercept could bring benefits without increasing danger to intelligence services?

I am convinced we now need to move forward, so let me ask about implementation. What is the timing? Will there be yet another Bill on interception later this Session, or in the next Session of Parliament? I hear it being said that implementation might take more than two years. That is patently ridiculous. Can the noble Baroness say whether there is any impediment to speedy implementation, and if so, what it is? I find it disappointing that proposals will not be ready for inclusion in the Counter-Terrorism Bill. I make it clear that we would consider recommitment of that Bill if we would help material to be introduced at a later stage.

But let me also be blunt on another matter. We favour use of intercept because we think it a useful and effective tool in fighting terror, but we oppose firmly large-scale overriding of habeas corpus and the bringing in of a system, wholly alien to our tradition, of ever longer detention without trial. After long and painful discussion, this House reluctantly accepted temporary provision of 28-day detention in terrorist cases. Given the further work being done following the Chilcot report, does the noble Baroness accept that it would be wholly counterproductive to force a phoney political row about 42-day detention? The former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton, is against it, as is the former Attorney-General, the noble and learned Lord, Lord Goldsmith; and I have not exactly seen the noble and learned Baroness, Lady Scotland of Asthal, waving banners in its favour. This House will not and should not brook our ancient liberties being played with as meat for the spin doctors.

Will the noble Baroness give an undertaking that so long as the work following the Chilcot report goes on there will be no question of her pressing legislation to extend detention without trial? If she will not give that undertaking, as Leader of the House, perhaps she could take that message back to her Cabinet colleagues as clearly and as firmly as she likes.

Finally, since this Statement is on intercept—and following past concerns raised by the noble Lord, Lord Ahmed—can the noble Baroness say whether the Wilson doctrine applies to Members of this House? No doubt, as Leader of the House, she has asked this: can she give an assurance that no Members of this House have been bugged while going about their duties?

My Lords, I, too, welcome the Statement. I agree with the Prime Minister that the central dilemma we face in a free society is that of preserving our liberties and the rule of law while at the same time keeping our nation safe and secure. This House has played a key part in retaining that balance in recent years. I join the noble Lord, Lord Strathclyde, in paying tribute to the noble and learned Lord, Lord Lloyd. I pay tribute also to the members from these Benches, my noble friends Lord Thomas, Lord Lester and Lord Goodhart. They have worked to keep that balance when measures were brought before this House.

I share the Prime Minister’s judgment of our security services. What they do defends our freedom, protects our society and saves our lives. However, whenever I have sat in this House over the past 10 years considering the numerous Bills presented to us, I have always kept in the back of my mind a statement by my old mentor Lord Callaghan; I think that I have repeated it to the House before. After receiving a briefing from members of the security services and they had left the room, he turned to me and said, “Always listen to what they say, but never abandon your own political judgment”. I think that that is Parliament’s duty when we deal with these matters.

We in this House have long supported the use of intercept evidence and welcome this move. The task now is to get the balance right between the effective use of such intercept evidence and the protection of capabilities in the field. One concern about the Statement is that there are so many checks, balances and conditions that it is almost an open invitation to those who do not want to see this move implemented to find reasons not to implement it. It will take some strength on the part of Ministers to ensure that this is not in fact one step forward and two steps back. Is the Minister satisfied that the right balance will be struck between the use of these new capabilities and excessive claims by the security authorities that this will damage the agencies? We must make sure that that happens. Our argument has always been that this move will strengthen our ability to secure terrorist and organised-crime convictions. That will not happen if it is too easy to make such objections.

Is the Minister confident that the move will not undermine inter-agency co-operation? It is true that agencies have not in the past co-operated with each other. They should not use this relaxation of the rules on intercept as an excuse for not communicating with each other. I repeat the question from the noble Lord, Lord Strathclyde: when can we expect legislation on this? I also underline his concerns about the justification for pursuing 42-day detention.

The Chilcot team has done a good job of work. But, as the noble Lord, Lord Strathclyde, pointed out, there is now a wide concern that goes beyond just intercepts and concerns the nature of our society and where it is going. The Bill needed to implement this change will, I think, be the ninth one in 10 years to address various aspects of security. There is growing public concern at the growth of what has been termed the surveillance society.

I therefore wonder whether the Chilcot team, which has proved so admirable, could not be given a further task: to have a full overview and review of the legislation introduced over the past 10 years and to see what has worked and what has not. Those who have studied these matters have found whole sections of legislation which was rushed through the House in days or hours that have never been implemented. Other provisions referred to in this House have been used with unforeseen circumstances. We must ensure that security legislation is not an ever-incoming tide. We must continually use the considerable strength and wisdom of this House to ensure that we strike the right balance between our civil liberties and our security needs.

My Lords, I am grateful to both noble Lords for their welcome and have, indeed, already paid tribute to this cross-party working. I am also very happy to join in the tributes to the noble and learned Lord, Lord Lloyd of Berwick. I always consult him because I find it more valuable to do so than not. He and I watched my right honourable friend the Prime Minister give the Statement in another place and I saw what I thought was a flicker of a smile cross his face as he listened. If he comments on the Statement today, I hope his comments will be largely supportive because the Statement picks up the issues he raised.

We have to be clear that no one on the committee is suggesting that this is a magic silver bullet that will dramatically change the way things are. We have a very good and high success rate for convictions in trials in this country. I have no estimates from the Crown Prosecution Service, but the Metropolitan Police estimates that its success rate could increase from 88 per cent to 92 per cent if it could use intercept. That 4 per cent is worth having, but worth having only within the conditions laid down in the report. I think that those bodies would also accept that there could be fewer aborted trials, a point made by the noble Lord, Lord Strathclyde.

The issue of the link with Australia as a common law country has been raised today in both your Lordships’ House and another place. Noble Lords who have read the report will have seen an extensive section on comparisons with different countries, France, the Netherlands, Canada and Australia being but four. I recommend that noble Lords who have not had a chance to read that section do so, for the committee clearly found the comparison extremely valuable. However, the committee was also keen to point out the differences between the different regimes, not least the different systems. For example, Australia, as I indicated, has a common law system; the other countries I mentioned do not. But there are distinctive differences between the British system and the systems in those countries. Although Australia is a common law country, it does not have the European Convention on Human Rights. That is a distinct difference. We have the adversarial legal system which I have described. We also have strong and good co-operation with international partners. I do not underestimate the importance of that in thinking through how we should use this. As has already been indicated, we also have a very high level of co-operation between the police and the security services. So although the committee was very clear that comparisons are valuable and useful, it was also clear that no direct comparator could be translated across. We therefore need to devise our own solution.

I do not have detailed timings to give noble Lords. My plan, of course, is to keep the House informed—not least because, as noble Lords will see when reading the report, there is a lot of detailed work to be done. I do not think that the nine conditions will be a hindrance, but each requires substantial work. I hope the noble Lord, Lord McNally, will be reassured that the combination of an implementation team drawn from across government and from the agencies with the newly convened cross-party group led by Sir John Chilcot, with all the experience that it already has, will enable us to make sure that the eventual proposals are robust and, vitally, as I am sure the House will agree, that we do not compromise our national security ability in anything we do while recognising that there is clearly a possibility of taking this forward in a particular way.

I do not want to spend a lot of time—I could, believe me—discussing the 42-day issue. Like noble Lords, I have had the benefit of talking to a number of people in your Lordships’ House and in another place and beyond about the issues that I know are of concern. In all the conversations I have had there has been a real clarity of understanding that we are reaching the point where we may need to look in exceptional circumstances at the possibility of someone being held for longer than 28 days. Two issues which noble Lords will be aware of come to mind. The first is the ability of those who wish to create havoc and terror in our country to use technology in an increasingly clever way, and the requirements therefore to be able to use the encryption codes and so on that are on our services.

The second is that this often has an international dimension, and that requires us to think, talk and discuss with forces all over the world, some of which may be very far flung and do not have the communication abilities that we do. Those issues have implications in terms of whether 28 days will be sufficient. I have always believed it is the job of government to think ahead, to consider and to plan. That is exactly what we are trying to do within the counter-terror Bill that will come before your Lordships’ House. It is absolutely critical, having accepted that principle, which I believe people do, to make sure that the safeguards are built in. In the context of the counter-terror Bill, those safeguards are political judgment, parliamentary oversight and judicial oversight combined. Noble Lords may have views on how those work, but they are three important and distinct elements.

Finally, I looked up the Wilson Doctrine. The last statement on the Wilson Doctrine was on 30 March 2006. I want to read out the paragraph that answers the questions I have been asked about it:

“In answer to questions in the House of Commons on 17 November 1966, the then Prime Minister, the right hon. Harold Wilson MP, said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that if there were a development which required a change of policy he would at such a moment as was compatible with the security of the country make a statement in the House about it. This approach, known as the Wilson Doctrine, has been maintained under successive administrations”.—[Official Report, Commons, 30/3/06; col. 95-96WS.]

And it does apply to your Lordships’ House.

My Lords, I thank the Leader of House for repeating the Prime Minister’s Statement and add my warmest congratulations to the Privy Council team on producing an excellent report. I do not think I have ever read a clearer or fairer account of the benefits and risks—because there are risks—involved in introducing intercept evidence into court. I greatly welcome their conclusions.

Does the noble Baroness agree that if the Government put the preferred legal model called PII Plus on a statutory basis and agree to give the undertaking which the report recommends in paragraph 213, they will go a long way—I hope the whole way—towards removing the concerns which have been felt by GCHQ and the other agencies and also by the service providers?

My Lords, the different legal models are discussed on page 44 of the report. As the noble and learned Lord will know far better than I, there are several possibilities. My noble and learned friend Lord Goldsmith when he was Attorney-General also looked at the PII Plus model. This is the one that the noble and learned Lord thinks would be of greatest interest, so I hope noble Lords will study it with great care. As he says, we will be coming forward with proposals on that.

My Lords, I thank the Leader of the House for the Statement and her words. Does she accept that the group has tried—and the noble and learned Lord, Lord Archer of Sandwell, will make his contribution in a minute—to open a door for the Government using a great deal of work done previously by many people, including many Members of this House? She paid a just tribute to my noble and learned friend Lord Lloyd of Berwick.

Does the noble Baroness accept a point that has not really come out yet in these exchanges? As she said, further important work needs to be done on procedures, safeguards and cost. We hope that we have put forward in the report not only a legally robust procedure, which is set out in some detail, but also a way in which, if the Government accept our suggestion, even if we were wrong and there were to be an adverse judgment somewhere along the way, the result would not be the loss of security. It might be the loss of a particular prosecution, but it would not in any circumstances be the spilling out into the open of the precious information about the capabilities and techniques at our disposal which everyone in this House knows have to be kept secure. I am not sure how far the noble Baroness would follow me in my personal view, which is not the opinion in the report, but this issue has caused the whole government apparatus of counter-terrorism to creak rather badly. Whenever they come forward with ideas for new powers or new procedures, they have to face the argument, which they have not been able to answer, that they are barring themselves from using evidence which could be crucial. Therefore, there is a wider context beyond the scope of the report which I hope that the Government will find useful.

My Lords, I thank the noble Lord for his work on the committee. It is valued extremely highly by my right honourable friends the Prime Minister and the Home Secretary. I noticed the noble Lord shaking his head vigorously at the idea expressed by the noble Lord, Lord McNally, of extending the Chilcot committee’s remit. I do not feel the need to answer the point as the noble Lord has done it rather well for me.

I accept much of what the noble Lord said in the first half of his comments. As he would expect, however, I am not sure that I would agree that the apparatus creaks rather badly. I think that there is a perception that this could make a difference. What is very measured in the report is the real understanding that the difference will not make a substantial change in the ability to bring people to justice. In fact, we have an extraordinarily good track record. The question is whether it could make the difference in particular cases and lead to fewer aborted trials and more solid convictions. That is the essence of what we need to look at. It is important to look at it in that light, but not to feel in any way that we have failed to achieve what we need to achieve because this facility has not been available to us. That is where I would not agree with the noble Lord’s terminology of creaking machinery.

My Lords, the Joint Committee on Human Rights will greatly welcome these proposals. Together with the committee chaired by the noble Lord, Lord Newton, and in other work by the noble and learned Lord, Lord Lloyd, which has already been mentioned, all of us have been pressing for proposals of this kind. Is the noble Baroness aware that when the Joint Committee took evidence on this, we went to Madrid, to Paris and to Canada? What impressed us greatly was that if you look at the common law world and think of the United States, which has a Bill of Rights, and you think of Canada, which has a Charter of Rights—those countries which need to balance liberty and security—they were not subject to the same exclusionary rule as we have. In Europe, only Ireland, in the common law world, has the same exclusion. Is the Minister aware of that and how isolated we have been, and therefore how important it is now that we are able to join forces with, for example, Spain, which has more serious terrorism than any other country? Finally, the Minister will be aware that Sir John Chilcot has been involved in this subject for as long as any of us. He was involved in the first prevention of terrorism Bill in 1974. I cannot think of a better person to do further work in this area. In my view, he is one of the great public servants of my time.

My Lords, I am sure the whole House will agree with the noble Lord in his praise of Sir John Chilcot. The quality of this report and the work that has been done clearly demonstrates that this cross-party Privy Council approach has worked extremely well with what we wish it to achieve. I pay tribute to all those involved. It is interesting when one looks at the comparisons within the document. The noble Lord talked of going to Madrid, Paris and Canada—indeed, Spain, France, Canada, Australia, the United States and the Netherlands are examples within the document. I take nothing away from the comparison between the ECHR and the Bill of Rights and the ability to make these things work together.

However, I would point to the unique nature of the particular criteria that I spelt out for what makes this country different: our collaboration externally with other nations, our adversarial system and so on. When one adds all these up, one sees that we have to have a home-grown solution. I am not sure that we felt isolated. As I have indicated, the quality and quantity of the work we have done in bringing people to trial and to justice has been extremely high. The question was whether we could do even better. In the eyes of the Metropolitan Police, it was the difference between 88 per cent and 92 per cent. That has to be balanced very carefully against the risks which noble Lords have indicated. I also note that Andrew Dismore, who chairs the committee, was keen to welcome this earlier today in another place.

My Lords, the Statement says that it is not possible for the current Counter-Terrorism Bill to include the recommendation of this committee. In that event, would it not be possible to withdraw the Counter-Terrorism Bill and reintroduce it in the new Session? Alternatively, can the Counter-Terrorism Bill be extended from now until the new Session?

My Lords, the Counter-Terrorism Bill contains different aspects of policy, some that my noble friend may agree with and some he might find slightly more interesting. It would not be appropriate to consider the withdrawal of the Bill, particularly as those involved in the work that will follow will recognise very clearly that there is a lot to do. I do not know what the timescales are. I know my right honourable friend will be keen to keep both Houses of Parliament informed on that. As yet, I do not know how long it will take. There is work to do to try to evaluate that. I would imagine that if we asked any member of the Chilcot committee—we are fortunate to have in our presence today at least two of them—they would say that this work could take some time. That does not mean—and the noble Lord, Lord McNally, expressed concerned about it—that we should drag our feet, or indeed take too long. Certainly, it will take some time and I think to hold up a Bill which had very important measures in it would not be right.

My Lords, I have one question and one slight squeak of surprise. If the security services have the right of saying no to a piece of information being released, surely it should not be them who have the absolute veto. Surely it should be a judge. If they just say no and that they do not like it, none could come forward. That is my question. My squeak of surprise is that I am very surprised that the Statement says that no control orders would have been found unnecessary as a result of this. Will the noble Baroness elaborate on that a little bit? We were all hoping—those of us on the Joint Select Committee on Human Rights—that the use of intercept evidence would reduce the need for control orders.

My Lords, on the first point that the noble Earl has raised, the tests are very clear. In fact, the first tests described within the document is that the intercepting agency shall decide whether a prosecution involving their intercept materiel shall proceed and it shall not be disclosed beyond the people who have been described—the cleared judges, prosecutors and special defence advocates—except in the form agreed. These are all very important safeguards to make sure that the evidence that is being used does not jeopardise the work of the agencies.

I appreciate the noble Earl understands that, but somebody has to make that judgment. The proposals put forward in the committee were that it would be the agencies themselves. If the work is done correctly and we get this right, there will be, I believe, a clear consensus not only within your Lordships’ House and beyond, but across the agencies and the services that this is an appropriate thing to do and they will wish to do it where it is appropriate. We have to be clear who has to take that judgment and I think the work of the committee is to suggest that that judgment should rest with them.

In terms of the control orders, it is very important that we do not look at this piece of work and the potential as being the answer to a set of issues that we have elsewhere. The committee was clear to say that. One cannot assume that control orders would be any different as a consequence. It may be that in the future other things will happen as a consequence of using the evidence; things that would not happen now. We cannot prejudge that and at the present time it would not have had any impact.

My Lords, in thanking the Leader of the House for repeating the Statement, I, too, pay tribute to Sir John Chilcot whom I count not only as a friend but he is also an ex-colleague. I have yet to read the report but, from the Statement, it sounds like a very thorough-going and welcome report that will exercise both Houses of Parliament for some time.

The one point I should like to make is really a point of practical detail. It concerns the four points which have been identified already and the nine conditions. I am sure that we all agree in principle that the intercepting agencies should retain the ability to control their material, and that disclosure of material cannot be required against their wishes. I wish to flag up one practical point that follows on from that. The fourth point is to ensure that agencies cannot be required to transcribe or make notes of material beyond a standard of detail they deem necessary. Many large criminal cases not specifically concerned with security have foundered in the past on that point, when a determined defence team has insisted on transcription of masses of material. One could well imagine that in the sort of cases we are considering today, there could be a requirement to transcribe not only hours’ and days’ worth of material, but even weeks’ and years’ worth. Doing so will bog down a prosecution to the point where it may not even run the case at all.

I ask the Leader of the House if she would take these remarks back to the team considering the matter. It will be a very finely balanced judgment, of course, but, in practical terms, it is well worth noting.

My Lords, I am very grateful to the noble Lord, with his wealth of experience, for that contribution. It is precisely because the implications of these points need to be looked at in great detail that we have set up the team that will take this forward.

My Lords, I congratulate the Government on taking a decision which is wholly in line with countries of similar legal antecedents to our own and will iron out some very curious anomalies in relation to what areas of intercept evidence were admissible and which were not. However, I ask the Minister to have Her Majesty's Government consider carefully in relation to those cases where the veto of the intelligence agencies is not used—I accept that it is for them to decide—that when the matter eventually comes to trial, a longstop discretionary jurisdiction should be vested in the trial judge who will invariably be a judge of the High Court so that ultimately, the ends of justice are seen to be served by an authority that is totally non-partisan.

My Lords, the legal framework around which this will be set is an important aspect of the discussions that need to take place. The noble and learned Lord, Lord Lloyd of Berwick, talked about PII Plus, the code for a particular way of looking at this. It is very important to get the legal framework right, as noble Lords are saying.

My Lords, I welcome the report and congratulate Sir John Chilcot and his committee on doing such a thorough, scrupulous and meticulously detailed job. As somebody who gave evidence to the committee, I know that its members were scrupulously fair, courteous and extremely detailed in carrying out their responsibilities.

Does my noble friend not agree with me that the Chilcot committee is saying that in principle it would be a very good thing if intercept could be introduced in evidence in support? In this House we have always agreed about that—there is no question of there being a question of principle. I hope that my noble friend will agree with me that the committee has made it clear that there are some very real and serious hurdles to be cleared to meet the conditions which it has laid out. Of the nine requirements which it has laid out on page 49 of the report, six are classified in another part of the report as,

“requirements for intercept as evidence to be operationally workable”.

That is the key question. Unless these hurdles can be cleared—and one hopes that the committee that will now take forward the work will be able to solve some of these problems—the Government have been very clear that they will not proceed if there is any question of harming the efficiency of the agencies or endangering the security of the country.

Can the Minister add anything about the intercept modernisation programme, which was mentioned at the end of the Statement? If there is anything that could be added, that would be welcome to the House.

My Lords, I am grateful to my noble friend, who I know has taken a keen interest in the deliberations of, and gave evidence to, the Chilcot committee. She was right to add a strong note of caution: that, while the principle that the report establishes could be a useful way forward, it should be recognised that significant and serious hurdles are to be overcome. It may not be possible to overcome them, about which the report is clear, as I hope noble Lords will have felt from the tone of the Statement. The Government will look to do so, but we cannot guarantee that we will. As my noble friend said, it is important that what we are seeking to achieve is operationally workable.

The noble Baroness asked about the modernisation programme. It is partly to do with a magical thing called internet protocols, which are about the new ways in which people communicate. Noble Lords will be aware of the whole of the internet, from Facebook onwards, but telephone conversations also are increasingly conducted over the internet. As with any other technological advance, it is important that we look at the implications for the services. The modernisation programme is being undertaken in part at least to try to anticipate the way in which those methods of communication could be used in the future.

My Lords, the Minister said that a great deal of work will be required on the nine conditions. Does she agree that it is more important that it should be done properly than it should be done quickly?

My Lords, I pay tribute to my noble and learned friend for his work on the Chilcot committee and agree with him completely. That is why it is important to achieve an information timescale that sees the work go forward, but ensures that it is done thoroughly and properly, so that our conclusions are correct. In addition, as the Statement and the report said, we should ensure also that, in finding and trying out a solution we discover that there are reasons why it ceases to be effective, we have in place the mechanisms to be able to deal with it promptly.

Criminal Justice and Immigration Bill

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

House in Committee accordingly.


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

32: Schedule 2, page 170, line 17, leave out from “ways” to end of line 18

The noble Lord said: I shall speak also to Amendment No. 39. Under current provisions, courts can choose to leave a youth rehabilitation order unamended after a breach. For instance, a young person on a standard six-month supervision order might have kept more than 90 per cent of his or her appointments but still qualify for breach action. Breach proceedings may often be brought where the young person’s compliance and motivation to co-operate with the intervention are very high, particularly given the chaotic lifestyles associated with many young people who come to the attention of the youth justice system. Breaches can occur easily for children with unstable home lives. Currently the courts tend to respond to technical breaches with warnings or encouragement.

The provisions in the Bill would preclude such an approach and would require that a court must, when it is satisfied that a breach has occurred, impose a fine or amend the terms of a youth rehabilitation order, even if the young person has responded well and the youth offending team and the court consider that the order should be allowed to continue in its present form. Why is the Bill reducing the discretion of the court? Here is yet another example of the Bill doing that. National standards require breach proceedings to be initiated relatively early on, so courts will confront a wide range of different levels of non-compliance. They should have flexibility in how they respond to them.

We share the concern of the Standing Committee for Youth Justice that the provision might reduce the potential for compliance with the order if the young person feels unfairly or harshly treated. In that event, the imposition of such a punishment might be counterproductive, leading potentially to further proceedings for breach or the subsequent revocation of the order, the potential for increased offending associated with non-compliance of the order and, in some cases, a custodial sentence. We are concerned, in other words, that the Government’s emphasis on robust enforcement for breach, because of their view about the need to maintain confidence in community sentences, might accelerate offenders into custody despite original offences not being serious enough to warrant it.

Our amendment would ensure that the courts retain the discretion that they currently enjoy to deal with the wide range of breaches that come before them in the most appropriate fashion in all the circumstances. In particular, the power of the court to issue a warning would provide some form of encouragement to the young person without the imposition of a further punishment. I beg to move.

I warmly support this amendment, but for a slightly lateral reason. One theme of yesterday’s debates was about putting the needs of the child first. I regard this amendment, allowing discretion to the courts, very much to be allowing the interests of the child to be put first by the sentencer at the time of sentencing.

Again, I must agree with everything that the noble Lord, Lord Ramsbotham, says. Why do this Government not trust professionals to get on with their job? If you appoint somebody to be a magistrate or a judge, you assume that they are capable of either magistrating or judging. You do not want to hold their hand the whole time and tell them exactly what to do, because invariably circumstances will arise when it is exactly the wrong thing to do. You should just allow them to use their judgment, which is what you pay them for.

I take the same line entirely. I put the obverse argument by asking this question: what earthly gain do you make by circumscribing the discretion of a learned judge or bench of magistrates in this situation?

It will not surprise the Minister that I, too, for the reasons that have been given, support this amendment.

There has been unanimity of view until now, when it is my turn to speak. This has been a short but interesting debate. The noble Earl, Lord Onslow, asked why we did not trust the professionals. I am a great admirer and rereader of the text of the noble Baroness, Lady O'Neill, for the Dimbleby lecture five or six years ago, which was on the theme of putting our trust in professionals and of the dangers of not doing that. As a general proposition, I very much agree with it. Equally, there is always a balance to be drawn between the role of Parliament and government in setting a framework and what then has to happen at local level. We will argue, throughout the Bill, I suspect, about whether we get the balance right.

As a general comment rather than specific to this debate, my experience as a Minister is that, collectively, parliamentarians are concerned about too much central diktat, but then spend most of their efforts putting pressure on the Government to do something. It is difficult to get the balance right. Indeed, some of the amendments tabled by noble Lords who argue for discretion in this area are very precise in another area.

On the specific points raised by the noble Lord, Lord Kingsland, there is a safeguarding in paragraph 3(1) of Schedule 2, which states:

“If the responsible officer is of the opinion that the offender has failed without reasonable excuse”.

Together with the guidelines that will be established, that gives sufficient discretion for the responsible officer to make a common-sense judgment in this area.

The court is then given discretion in the ways that it can deal with the breach. It has to deal with it, but there are various options in paragraph, 6 and likewise in paragraph 8 in relation to the Crown Court. I would argue that we have established the right balance.

The noble Lord, Lord Kingsland, argued that, under the current community sentencing arrangements, courts can choose not to do anything in response to a breach that is brought before them. That is a fair point to make. But we believe that under the new framework that we are debating, doing nothing, or at least doing nothing without reviewing the order, should not be an option. As I said, the specified actions for courts to take provide for a range of options for the court when dealing with a breach while taking into account how the young offender has complied with the existing order.

The new youth rehabilitation order has many different requirements. It is different from the current framework, which is sentence-driven. In the current circumstances it may well be right for a court to allow a young person to continue with a supervision order or an action plan order where this has been breached because, in many cases, the sentence does not have the potential to contain multifaceted requirements such as can be attached to the youth rehabilitation order.

In the Government’s view, where a youth rehabilitation order is breached, the requirements need to be reviewed and revised where necessary and appropriate. We believe that it should be reviewed to ascertain whether the requirements originally attached were best suited to the young person. Requirements may need to be substituted or amended. Indeed, the court can take no action under the third power that has been set out in paragraph 6(2)(c), and paragraph 8(2)(c). Paragraph 6(2)(c) states that the court can deal with the offender,

“in any way in which the court could have dealt with the offender for that offence”.

It means that the court could make a youth rehabilitation order less onerous by taking away a requirement that is not appropriate.

I accept the point made by the noble Lord, Lord Kingsland. Some young people will find the requirements attached to the youth rehabilitation order difficult to comply with. When it is breached, it is right for the court to consider properly whether the original requirements were appropriate and whether they should continue. The youth rehabilitation order will be effective only if it is properly tailored to the needs of the individual. A breach of the YRO could be a clear indication that this aspiration has not been fulfilled. We would not want to perpetuate requirements that, in practice, are not working or suitable. The courts should be able to review and revise a youth rehabilitation order where it is breached. Overriding that is the whole construct of youth rehabilitation orders as part of a programme designed to ensure that custody is truly a last resort. It is about a robust community sentencing framework. We have to make it clear that breaches cannot be tolerated. There are sufficient safeguards in the Bill, which is why I hope the House will accept the provisions as they are currently enunciated.

Does the Minister agree that, generally speaking, building on the professional judgment of those on the front line, if one can, is preferable to being prescriptive? What steps has he taken to build on the professional capacity of those on the front line—through, for instance, continuing professional development and improved advice—in that sort of way, rather than taking this step of legislating?

I very much agree with the noble Earl. We want to build on the skills and expertise of people on the front line, whether they are responsible officers, people who work with young people, or the judiciary. Clearly, in the context of this debate, the responsible officers play an absolutely critical role and are given considerable discretion. We also think it right that Parliament should set an appropriate framework where it is clear that breaches without reasonable excuse should be dealt with decisively, but that the judiciary and magistrates should have sufficient discretion, which we believe is contained in the Bill, to make an appropriate decision.

I am most grateful to the Minister for his reply, and to all noble Lords who spoke in this short and very revealing debate. These amendments have not only occurred to the Opposition. Rather, their underlying views are extremely powerfully advocated by the Standing Committee for Youth Justice. I am a little unclear, given the Minister’s response, about exactly what motivation lies behind the Government’s approach. On the one hand, the Minister has said that the situation has now changed because we have Clause 1 of the Bill and this generic youth rehabilitation order, which takes a new approach to the youth justice system. Consequently, it is necessary to review the scope of the courts’ discretion in dealing with breaches. On the other hand, there have a number of occasions when Ministers, in the context of the Bill generally and in the context of this clause in particular, have said that one of the reasons for it is the need to maintain confidence in community sentences. That is an entirely different point. I should like to hear the Minister’s response to that, if he cares to get on his feet again.

The Minister drew my attention to a number of other provisions in the Bill, suggesting that in fact the change is rather marginal. Is he saying that what I am seeking, and what the Standing Committee for Youth Justice is seeking, is in fact in the Bill anyway if you read all the measures in conjunction? If that is so, why do the Government not simply accept our amendments or say that our amendments are actually what the Bill says?

My concern is that of course there will be situations when a breach comes before a magistrate or a judge and that magistrate or judge will say, “Actually, the original cocktail of measures under the youth rehabilitation order is not suitable and we will have to refine them”. Equally, he may take a completely different view. He may take the view that the original range of dispositions under the order were exactly right and the reasons why the young man or woman had not been able to comply 100 per cent were either out of their control or understandable in their social circumstances. It is that second thing that the judge can no longer do. He is the only person who will have a real grasp of what the situation on the ground is like; so why on earth remove that discretion from him? I do not know whether the Minister wants to respond.

I am happy to respond to the noble Lord. I thought I was being consistent and that my remarks dealt with both facets. It is certainly so that my colleagues in another place emphasised the issue of public interest and confidence in what we are seeking to do here. That is because we have made a great deal of progress in our discussions in the past two days about the importance of developing community sentences to ensure that custody is the last option. Those community sentences should be effective and should aid the prevention of reoffending. There is little that I have seen that we disagree about. But we also believe that in terms of public confidence we have to show that community sentences are not a soft option. I very much endorse the fact that they are not a soft option. Having now had some experience of joining in with community sentences, I am satisfied that they are not a soft option. Part of building public confidence is to get over that we cannot tolerate breaches, because we have to make sure that community sentencing is a vigorous option.

As for the discretion of the judiciary, I also sought to point out, as noble Lords can see on pages 170 and 172 of the Bill, that we want the magistrates’ court to deal with a breach. As set out in paragraph 6(2)(b), one of the ways in which it can deal with a breach is to amend the terms of the youth rehabilitation order. It can make additions or substitutions. In that way, it can deal with the very point raised by the noble Lord, Lord Kingsland.

If I may be so bold as to say so, white man speak with forked tongue. The noble Lord is beginning to give me the impression that actually he agrees with my noble friend Lord Kingsland that when some young man or young woman does something silly that they cannot help and they breach their order, it should not be a breaking point. He is then saying, “We have got to show the public”, so he is trying to give over two messages. That is my understanding; I may be wrong. If he is saying that we do not have to worry and the discretionary powers are there, then good, but he could have said that right at the beginning.

I do not for a moment doubt the sincerity of the Minister in any way. On the contrary, I am sure that he is totally genuine on this matter. Yet there is a lack of logicality in what he says, in my respectful submission.

On the one hand, the reporting officer has a massive discretion. He is not a judicial figure; he is an administrative figure, a person obviously near to the miscreant and able to come to a proper conclusion. He has that discretion, and it is right that he should have it, but the court is not given that discretion. It is perfectly true that the court is not driven to any specific punishment or anything of that order. Indeed, I can understand the motivation for saying that it must be brought before the court, because the court will then review. The main question is this: what benefit will that appearance before the court have for the miscreant himself?

The point has been amply made by the noble Lord, Lord Kingsland, that a great deal of goodwill will sometimes be won by the fact that the court—normally the magistrate—will say that it is taking no action but is looking closely at the situation. The person will know what will happen if he appears before it again. It will have almost the effect of a suspended sentence. It is missing that opportunity that is the illogicality and weakness of the Government’s position.

I do not like having the noble Lord against me, but I do not believe that the Government are being illogical. First, he is right about the discretion to be given to the responsible officer. For all the reasons that have been suggested in the debate, that is right. As long as it is done within national standards, there is consistency and we can be assured that all responsible officers will do the right thing, there is a need for discretion. If there is a breach, it is inconsequential and there is good reason for it, no further action need be taken. The noble Lord, Lord Kingsland, looks rather quizzical: there is a need for “reasonable excuse”.

When it comes to the general proposition of whether the new structure will work or whether people are convinced that it will, it is sensible to be able to make it clear that breaches will not be tolerated. The point then is that that is why the court is required to take action. Yet a great deal of discretion is given to the court to decide what action is taken. I see that I am not having much luck here, but it is an entirely consistent approach.

I asked the noble Lord whether the situation had changed as a result of your clause, in the context of the other clauses to which he had rightly drawn the attention of the Committee. The noble Lord said that the situation had changed. If so, my amendment retains its force. I can modestly say that it has received considerable support in the Committee. We have probably reached the stage where—

That is a bold thing for the Minister to say. In all the circumstances, I beg leave to withdraw the amendment. The Minister will not be surprised to hear that this is one of our amendments that will be coming back on Report.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 and 34 not moved.]

35: Schedule 2, page 170, line 35, at end insert “, the age of the offender and the intellectual and emotional maturity of the offender”

The noble Earl said: This amendment concerns sentencing. Are we listening on the government Front Bench?

Good. The amendment concerns sentencing. Those of us on the Joint Committee on Human Rights felt that the interests of the child in the government clause was being subordinated against what has been agreed in the Convention on the Rights of the Child in, I think, Article 3.

Our recommendation says:

“We recognise that the obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children, not the sole primary consideration. In our view, however, the effect of clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention”.

I read that out for the simple reason that it has been put with much greater clarity than I could put it. It was unanimously agreed by the Joint Committee on Human Rights. We keep on coming back to the fact that the interests of the child are primary. Not only is it right that that should be so, but, if we have regard to the interests of the child, get them to go straight and turn them away from their ungodly ways, that will be in the interests of the community as a whole. There is no clash with what we want to do or with crime prevention or rehabilitation or anything like that. Our treaty duty is to do that, and it should be in the Bill. I beg to move.

I support the amendment very positively. The noble Earl has put the argument very well, as indeed did the Joint Committee on Human Rights. As we argued yesterday—it is impossible not to repeat some of the ground in the context of this amendment—it is wrong and misleading to suggest that somehow there has to be a balance between the interests of the child and the interests of the community.

It is upsetting when it is suggested directly or implicitly that those of us who argue the position that I am about to argue are somehow soft on the need to protect society. It is quite the reverse. We are very hard on asking people to stop being stupid by creating situations in which the child is more likely to become criminalised and to be excluded, with all the consequent costs and negative outcomes to society in the future. Seeing the interests of the child as crucial is not only necessary because we have a responsibility for children and we care in value terms about children, it is essential to protect society in the future from the cost of reoffending and from the damage of reoffending.

Yesterday in our very interesting deliberations, the noble Lord, Lord Ramsbotham, referred to one of the children involved in the horrible murder of James Bulger and how he had a mental age of four. If we are really taking the interests of the child seriously, if we really are committed to rehabilitation, not only for the person concerned and not simply on principle but because—I say it again—this is a way of protecting society, we must treat each child as an individual with their own position, their own needs and their own experiences. On the evidence of how things have been done in the past, I do not believe that that happens. That may happen on occasion, but it is probably more on occasion than as a general rule.

Therefore, it seems to me that this is an essential amendment. I applaud those who have tabled it. I hope that my noble friend will respond sympathetically. Either we care about the protection of society or we do not; either we see children as children, as I said yesterday, whatever their situation, or we do not. If we see them as children, we must see them as individuals in need of an individual approach, if we are to get things right.

In supporting the noble Earl, Lord Onslow—I am also a colleague of his on the Joint Committee on Human Rights—I want to continue the discussion that we have been having this afternoon about discretion. How much discretion should the courts have, and would it be desirable to give them some discretion back?

Amendments Nos. 35 and 40 relate to sentencing by magistrates and Crown Courts and the limitations on their discretion. The JCHR was concerned that the youth rehabilitation order framework might lead to a disproportionate use of custody for children and young people. The Bill requires sentencing to be proportionate to the offence—we are coming to that—but our international human rights obligations require courts’ actions to be proportionate to the child’s age and emotional and intellectual maturity.

The committee’s view was that the consequences of breach, as set out in the Bill, could lead quickly to custody, even when it could not have been considered for the original offence. The committee wrote to the Government asking why there could not be more judicial discretion, and they said—I imagine that the Minister will tell us this in a few moments—that sentencers may wish to use their discretion but they cannot permit this because the Government want enforcement to be robust. That word has obviously found its way into the Minister’s brief. The Government’s reply makes it clear that the need for robustness overrides the need to do the right thing for the child and the community.

Those of us who follow the system sometimes see odd decisions reported and ask ourselves, “How could that happen? What were the magistrates thinking?”. I mentioned two cases yesterday. Two children were sent to custody for breach, and one child killed himself. How did a vulnerable child find himself in prison for not turning up for his appointments? Presumably the answer is robustness. The Prison Reform Trust has done an excellent project, supported, I think, by the noble Baroness, Lady Quin, about the large number of people in prison with learning difficulties, including children under 18. They are highly vulnerable. The magistrates or Crown Court must have thought, “This is a very sad situation we are in”. Presumably, it was robustness that meant that these people ended up in custody.

Obviously, robustness is a concept with some merit, but I am not sure how appropriate it is for children with severe learning difficulties, for a child who may be 14 but looks about 10 or the sort of people we see in institutions who make us ask, “How on earth did they get here?”. Our amendment suggests that the courts must look at the child before them, get reports and use their judgment and humanity. The Government make a big mistake with their idea of robustness and the link to public confidence. The public are not interested in that sort of complexity; they are interested in an effective outcome. They are interested in seeing a young person stop doing whatever it is they have been doing that is causing misery and mayhem. In my view, the key is not robustness of enforcement but solving the problem that the child presents. It might need special placement in a school, drug treatment or more social workers’ time, but I doubt that it needs robustness.

The robustness that the Minister has been suggesting we should adopt, not only today but yesterday, leads to outcomes that cost a lot of money and do not deliver what the Government want to see, which is confidence and a system of justice that works. I wholeheartedly support the noble Earl’s amendment.

On the point about robustness I feel strongly in sympathy with the noble Baroness. Does she agree that it negates the purpose of alternatives to prison? The purpose of sentencing in a social context outside prison is to tackle the issue of rebuilding the life of the person concerned without disrupting it still further. Resorting to the word “robust” does not match up to the philosophy of having these sentences at all.

Having listened to the debate and read the amendments, I cannot think of a single reason why the Minister could possibly not accept the amendment. It is clear and limited. We have heard it said in answer to my noble friend Lord Listowel that magistrates and judges are subjected to a lot of training as time goes on. We know that probably even more resources could be spent—that is important too—so that they are up to date with some of the concerns of offenders who look one age but are emotionally another age.

Here we have a perfectly straightforward case. The most effective way to stop reoffending and to do the right thing for the child, the community and the family seems about as clear as it could be in what we have already heard. Unless we are going to hear from the Minister that everything that we are asking for is in the Bill—I cannot see it—I hope that we are all wasting our time because the Minister is going to accept the amendment.

As we have gone through the Bill, I have mentioned a number of times the fact that we are tackling one thing in isolation when in fact we are talking about something that reflects on many other aspects of the treatment of young people in the justice system.

Yesterday, for example, I quoted a conversation with a senior officer who, having been introduced to what a speech and language therapist could do with and for a young person, recognised that he and others had been damaging that person because they had been putting things down to bad behaviour and treating him wrongly. On reflection, it emerged that one of the problems was that these sensible words about what needed to be taken into account on behalf of the child were not there as part of what the young offender institution had to do for that person. When I took a speech and language therapist in with me and asked her to carry out an assessment of young people in custody, she came up with all sorts of important things, such as memory loss and various other aspects, which meant that the institution itself was not tackling the needs of the child.

It is therefore entirely appropriate that the amendment be included to cover the process right from the start, when the person is being considered. Those needs should be followed right through everything done with and for the young person—whether in the community, an institution or whatever. It goes back to this vital point: if you put the interests of the child first, all the protection and the other things we talk about will follow. That is absolutely crucial.

I also support the amendment. Part 2, which deals with sentencing and the things to which the court must have regard, includes the punishment of offenders. The amendment would not interfere with that. In no way would it diminish the protection of the public or the reform and rehabilitation of offenders, which is exactly the point that the amendment is making.

Of course, the community must be protected. Of course, we must be certain that the press, which is powerful and militant in seeing children as wicked, rather than having needs as well as being offenders, will dislike anything that is not seen to be robust. But it is not lacking in robustness for the court to be reminded, as it should be, of the age and mental capacity of the offender. It will in no way reduce the protection of the public.

It will not surprise the Committee to hear that we are also extremely sympathetic to the amendments tabled by my noble friend, by the noble Lord, Lord Judd, and by the noble Baroness, Lady Stern.

The noble Lord, Lord Judd, made some particularly telling observations about allegations of softness from both the Government and the press. The noble Baroness, Lady Stern, developed the notion of “robustness” in an extremely attractive way. I agree with the noble Lord, Lord Ramsbotham, that these are sensible words, and I shall be interested to hear whether the Government choose to disagree with him.

We continue the theme of our debates over the two days. I do not disagree with my noble friend Lord Judd’s eloquent argument about the need to treat a child as an individual. He emphasised prevention, rehabilitation and resettlement, with all of which I agree.

I also agree with Members of the Committee who say that this should be about solving problems. I argue that the whole construct of youth rehabilitation orders is to help to solve problems, through the very nature and flexibility of those orders. I have never sought to argue that courts sentencing young offenders have a duty to have regard to their welfare. As I said yesterday, the principal aim of the youth justice system is and must be to prevent offending. If, in legislation, you essentially put it in the Bill that an exclusive focus is to be on the welfare of the child, you risk ignoring the rights of everyone else, including other children—who in many, if not most, cases, are often the victims of young offenders.

“Robustness” and “softness” and the impact of the media are clearly important considerations in this matter. We do not legislate in isolation from the world around us. In a sense I am arguing along the same lines as I did in the previous debate. The Government are seeking a much more flexible community sentence response with YROs. At the same time, we must emphasise—public confidence is a factor here—that this is a robust approach. It is intended to reduce reoffending. Where breaches are unacceptable, they will be dealt with. I do not think that that is an unreasonable description of a robust approach. I understand the sentiments behind the amendment. The noble Lord, Lord Kingsland, described the words as attractive. I understand that. Ensuring proportionality has to be an important part of what we seek to do.

Paragraphs 6 and 8 of Schedule 2 require the court, when dealing with an offender in respect of a breach of a youth rehabilitation order, to take into account the extent to which the young person has complied with the order. We believe that the amendment is not necessary because the young person’s age and maturity are factors that are embedded in general sentencing practice. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, Clause 9 sets out the purposes of sentencing and the factors that the courts must take into account when sentencing. The requirement for the court to have regard to the welfare of the young person still applies when the court is considering how to deal with a young offender who has breached a youth rehabilitation order. The court has every opportunity to consider all the circumstances of the breach, including any aggravating or mitigating circumstances. In practice, the court will therefore already take into account factors such as age and emotional maturity when making any sentence decision on breach. These are important matters and factors that the court should take into account when deciding which interventions should be made and how long they should be.

Why then should we not put that in the Bill as opposed to leaving it to the court or the Sentencing Guidelines Council? There could be a range of factors that the court will need to consider as personal mitigation, of which age and maturity are just two. Exactly which factors will depend on the circumstances of the individual. They might include the family circumstances of the offender. There are many matters that the court will have to consider, and it is often difficult to have a definitive list and to single out one or two factors that in some cases may not be as important as other considerations.

What the Minister is arguing would be a good reason for not including in sub-paragraph (4) that,

“the court must take into account the extent to which the offender has complied with the youth rehabilitation order”.

What could be more central to the proceedings before the court, where it has to be proved to the satisfaction of the court that the offender has failed without reasonable excuse to comply with a youth rehabilitation order, than that it should take into account the extent to which he has complied with it? If it is all right to have that in, what is wrong in principle or in practice with the addition proposed by this amendment?

I am not sure I follow the noble and learned Lord on that. It is clear that the court has to have discretion in relation to dealing with the breach, which is what the Bill allows. It has to take action to deal with the breach, but it has discretion about the way that it makes the decision about what action it should take. It would be difficult simply to single out the factors contained in the amendment as being more important than any other factors. In essence, there is sufficient discretion—

I am grateful to my noble friend for giving way. What I am about to say must be heard in the context of my very great respect for him and the level of real concern which he himself has about many of the issues we are discussing. It is a weak argument to say that, because some other factors might need to be listed, this crucial factor should not be put in the Bill. Surely it would be more convincing for those of us on this side of the Committee who are trying to support him and respond positively to his position if he were to say, “I do not find this amendment helpful because of that danger, but I will go away and think of some generic wording that will cover this and other possibilities”. Off the top of my head he might suggest wording such as, “The court must take into account all the appropriate needs of the child”; or if he does not like the word “needs” because it sounds soft, “The court must take into account all the relevant factors of the individual child before deciding what to do”. Just to reject what everybody can see is highly relevant because there might be some other things which are highly relevant is not really a very satisfactory position.

I wholeheartedly endorse the comments that have been made across the Committee. It seems to me that there are two points that the Minister is not fleshing out as he might. If things need to be said in plain English, we should say them in plain English.

First, the Minister seems to be suggesting that the age and emotional and intellectual maturity of children should be lumped together with things such as family circumstances. Everyone else seems to be arguing today that these are factors that are critical to any intervention. We know that they are factors that are critical because in health, for example, the age and emotional and intellectual maturity of children matter when they are being diagnosed. In schools, those factors are taken into account. Across a range of interventions where public policy comes up against the assessment of the child, those factors are critical. Does the Minister accept that point in principle? If he does, it could not follow that the court must take all those other factors into account. As the noble Lord, Lord Judd, said, all those factors stand in their own right in any event.

Secondly, in the light of the passage of this Bill and the provisions concerning youth offending, have the Government carried out any surveys to find out what the public believe should be the approach to the sentencing of children where age and emotional and intellectual maturity—as the noble Baroness, Lady Stern, the noble Lord, Lord Ramsbotham, and others have pointed out—are critical factors in their offending behaviour? We know that NGOs have carried out such a survey and that SmartJustice and others have looked into public attitudes. As for the point of robustness made by the noble Baroness, Lady Stern, we understand the Minister’s desire to have public confidence in the system but what evidence do the Government have for that?

I do not have any evidence to hand but I will certainly see whether I can find any and circulate it to all noble Lords.

My response to my noble friend is that it is always tempting to take things away but the problem with that is that it gives the wrong expectation. It would be wrong for me to do that. While of course I agree that age and maturity are important considerations, I am not sure that I am in any position to say that they are more important than any other factors which call to be considered by the courts. In essence, I believe that the courts at the moment have sufficient discretion, particularly if it is backed up by the kind of assessments that would have to be made by youth offending teams.

Is the Minister saying that the amendment is unnecessary and that we do it already? If that is the case, that is a much more satisfactory argument than trying to counter what my noble friend Lady Stern says about robustness. If it is there and courts automatically do it, which if they do not, they should, there is no need for us to get upheaved about it.

I think I am saying that. We believe that the courts have sufficient discretion. We have heard from Members of the Committee that there are instances where they believe that some young people have ended up in custody where it is inappropriate. Clearly, we do not know the circumstances and it is very difficult to make a judgment on the basis of what we have heard. But that would suggest that there is an issue around the decisions which courts make, which would then suggest that that is a matter for sentencing guidelines rather than statutory provision, as suggested.

I am most grateful to the noble Lord for giving way. That would place the noble Lord, would it not, precisely in the position outlined by the noble Lord, Lord Judd, in his previous intervention?

I think that my noble friend asked me to go away and produce an amendment, so I am not sure that it does.

I hope that my noble friend will forgive my making one point. I appreciate the fact that he was dealing with the sort of alternative formulation that we might seek together. I think that what he really is saying is that it would not be honest of him to say that he will go away and think about it, because he was not convinced that this condition that we have stipulated was more important than any other. But I never said that. In the compromise formula that I put forward, I was completely meeting that point. I said that it might be one of a number of factors.

Surely there is a way of putting in the Bill a specific injunction that factors such as this will have to be taken into account. The Government do not necessarily have to refer to the words of the amendment. I just want to feel that the Government have taken the point and see that those who are doing the work in the front line and are dealing with these youngsters have some firm guidance about how they should approach it.

In this debate I am reminded of the startling figures of the numbers of children in custody with learning disability and learning difficulty. As the noble Lord, Lord Judd, has suggested, will the Minister look at this to see whether enough is being done? Clearly, from the statistics on the number of children with learning disability and learning difficulty, one has to be concerned that not enough account has been taken of the level of maturity of children entering custody.

We have discussed “without reasonable excuse” at some length. I ask the Minister to give more detail about what the guidance is to courts on what is and is not a reasonable excuse. That would be helpful in considering this matter.

We have had evidence in the Joint Committee on Human Rights that the level of adults with learning difficulties in prison is far higher than it should be. Certainly, for people with mental difficulties, it is a well established fact that there are many more than there should be in prison, which is a much bigger problem. It is a very serious problem, which we should address but probably have not. I do not know whether this is of any help, but it just makes a pessimistic answer to what the noble Earl is looking for.

Perhaps I may expand on that. The speech and language therapist to whom I referred produced evidence that 100 per cent of youngsters in a young offender establishment had the communication difficulties associated with 1 per cent of the population.

This has been an extremely interesting debate. I have no doubt that we will come back to this matter on Report. I shall see what information I can find between now and then. With regard to sentencing guidelines, at which we might ask the council to look, and the advice that the YJB will give to response officers, I am happy to look at whether any more needs to be done. Incidentally, I agree with the noble Lord, Lord Ramsbotham, on the question of speech and language therapy. I think we have a mutual interest in that area. I am always concerned about lists. It would be very easy to take the two in the amendment and add a few more in. There are always dangers in having a list of matters which then—

I am very grateful, as well as being sorry for interrupting. My wording was specifically intended to avoid lists. It was to have a generic point made which covered all these eventualities.

I would be interested to know what the noble Lord means by generic. I would like to see it. My general contention, coming back to the point raised by the noble Earl, Lord Onslow, is that courts have sufficient discretion at the moment. Then the question arises: do they use that discretion to best effect? If there is evidence that they do not, what can be done to encourage them to use that discretion? If I can take that away—I consider it as a constructive and reasoned response to this debate—I would be very glad to do so.

Before the noble Lord sits down, and not wishing to prolong the debate much further, can he tell us how he reacts to the intervention by the noble Baroness, Lady Falkner? She pointed out that in all other areas where we deal with children, it is completely obvious that we consider how old they are before we decide what to do. We also make some sort of assessment of how they have developed, whether they are very young for their age, or even whether they have not developed as they should. Then we make our decisions on the basis of having that information. If we did not do that when they went to the doctor, or the hospital, or the school, we would think that something was extraordinarily wrong. Why, as soon as they get into the court and into the youth justice system, do we stop all that and see only before us the criminal? Is that desirable and does it give us a good outcome? The point the noble Baroness made was an extremely important one and I am hoping that we do not let it just fall, but that we take it more seriously.

I am not sure that I can really add to what I said at the beginning in terms of the relationship between the overall aim, which is to reduce offending, and the need for the welfare of the child to be taken into account. We are not going to agree on this matter. The matters that the noble Baronesses have raised are entirely those that can be considered by the responsible officer and the courts.

My Lords, the extraordinary thing about this debate is that there is not an enormous amount of difference between us. What there is, is a difference of presentation. The Government are frightened of allowing this to be too public, but they actually secretly want to get on and do it. That is more or less what the noble Lord said. He said that here we have all the discretion that they should take into account, but it is tucked away at the bottom. Those of us who have been proposing this amendment are saying that it should be much more obvious that that is the case. We are nearer than it may look on the outside, and it is a pity in this instance that the Government do not have the courage of what is said slightly lower down.

I am going to read this pretty carefully and take very much what the noble Earl—the noble Lord; I am sorry, I am giving you a bunk-up in the peerage, which is very bad for his image. I will take away what he has said, which I think is helpful, and see if we need to come back to it on Report. I think we probably will do. Certainly what he said is more helpful than one sometimes gets from Ministers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

36: Schedule 2, page 171, line 26, leave out sub-paragraphs (12) to (16)

The noble Baroness said: I rise with some trepidation because what I have to say on these amendments follows on directly from what has already been said, with which I entirely concur. If I am seen to be replicating what everyone else has said, I apologise, because I am speaking to two separate amendments which should possibly have been grouped together. I wish that the noble Lord, Lord Judd, would stay for a moment, because I shall start by giving him, as well as the Government, a possible “out”.

The amendment specifically refers to the CRC’s requirement that,

“children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence”.

That excerpt may or may not be helpful. I will also speak to the amendments in my name which refer again to the use of ISSPs or, more particularly, to their breach, when the original offence was not so serious as to warrant it and even more because the breach is then likely to end in custody—an even more inappropriate disposal.

The Bill does not include the relevance of the child’s age and emotional and intellectual maturity, which may be extremely important, given what we know about the profiles of children who end up going through the court system. Given the preponderance of children who have been abused, who have been in care and who have mental health difficulties and learning difficulties or, for instance, autistic spectrum disorders, this is a very important requirement to include in the Bill. Instead, the Bill’s proposals cause us real concern. They emphasise the importance of breach over all else, regardless of the seriousness or otherwise of the original offence.

I hear the Government’s argument that where an order is breached, rigorous enforcement action is essential. I also heard the Minister say that in order to maintain confidence in community sentences, we cannot tolerate breaches. I will have quite a lot to say about community sentences and my involvement in them later on, but for the moment I should just like to agree with the noble Baroness, Lady Stern, that not only is confidence essential—indeed, it is the pillar of the whole process—but rigorous enforcement, of itself, is not nearly so important as successful outcomes, particularly by reducing reoffending. That is what the public want above all else and there is lots of evidence to show this. We must remember the damage that custody can do unless it is indeed used as a last resort.

In fact, with many children, especially those with the sort of problems I have just referred to, breaching reflects even more the need better to match orders to the situation of the offender. Last year, I met a child of about 13, a tiny boy, who was in an STC for breach. It was absolutely clear that he would continue with the breach when he got out because he was determined to skip school and do anything in his power to be with his sick mother. Clearly, there was a need to find other means of dealing with his situation than by putting him into a child prison. No one was gaining, least of all that little boy. Nor did such an enforcement do much for the confidence of the community in the enforcement of community sentences—it may, however, have done something for the confidence of a local reporter looking for a lurid headline if the story got printed.

There has been a worrying increase in the number of breaches coming back to court in the past few years—a threefold rise in the breach of supervision orders in the past seven years—which has in turn led to a rise in breach proceedings leading to custody, which has increased from 18 per cent to 25 per cent over the same period.

The Bill reduces the discretion of the courts, as the Minister just made clear. As a result, breaches of ISSPs resulting in custody rose by 98 per cent in 2005-06. That is an incredible figure, and calls into question whether they have been used as a last resort before other options have been tried and whether they were imposed inappropriately for offences which should not necessarily attract a custodial sentence. That is at the heart of my amendment.

I therefore strongly recommend to the Government that the Bill be amended to include specific reference to the CRC’s requirement, which I quoted earlier, that children are dealt with in ways that are appropriate to their well-being and proportionate to their circumstances and their offence. To do otherwise would be to compound an already unhappy situation, as is the case with the child who is in low-level trouble, and create an infinitely unhappier one. It is surely wrong in principle that a non-imprisonable offence should lead to custody through breach, particularly for children, and more particularly for low-level offending and vulnerable children, whom, as the figures show, breach has rippled out to engulf. I beg to move.

That was an interesting introduction to this question. The noble Baroness raised some interesting points about breaches. Her amendments would alter the powers available to courts for dealing with young people who breached their youth rehabilitation order. I shall not talk about robustness again, because the point has already been made. I hope that the noble Baroness will accept that I do not use the term in some macho sense of wanting to be seen to wield a big stick. It is more about getting the balance right between ensuring that custody is truly the last resort and that the new approach to YROs and community sentencing hangs together, is integrated and does for young people the kind of things that noble Lords have talked about. Within that, public confidence is important. It is important that they understand that it is not a soft option to place young people on community sentences. I think that we all agree on that.

The noble Baroness’s Amendments Nos. 36 and 41 would remove the provisions which allow courts, both magistrates’ and Crown, when re-sentencing for the original offence, to impose a youth rehabilitation order with intensive supervision and surveillance, or custody if the young offender is already on a youth rehabilitation order with intensive supervision and surveillance and has wilfully and persistently breached their order. The provisions apply even where the original offence would not have warranted such a sentence.

The amendment would mean that if a young person wilfully and persistently breached the terms of the youth rehabilitation order, they could be re-sentenced only to a further youth rehabilitation order, even if there were multiple breaches. The Bill makes it clear that the measures that we are discussing come into play only for wilful and persistent breach. I assure the noble Baroness that they would not do so for a minor infringement. That is why courts need to be able to raise the bar and use the youth rehabilitation order with intensive supervision and surveillance, or, ultimately, custody.

Of course, we want to look carefully at the powers that the court has to deal with those young people who have breached the order when they have not committed an imprisonable offence. When that is the case, custody is available in the following circumstances alone. There must have been a wilful and persistent breach of the first youth rehabilitation order. The court can then impose a youth rehabilitation order with intensive supervision and surveillance for that persistent and wilful breach. Custody is not available at that point, if the original offence was not imprisonable. The young offender then has to again wilfully and persistently breach the youth rehabilitation order with intensive supervision and surveillance imposed in the first place because of his wilful and persistent breach of the original order. Custody is then available to the court, which is then allowed to make a detention and training order for up to four months—the minimum period of such an order.

I emphasise to the noble Baroness that this provision really is to deal with wilful and persistent breaches and is not a charter for locking young people up for spurious reasons. The Government have absolutely no interest in wishing to do that. We are talking about what I hope will be a very low number of the worst cases in which, for the sake of the integrity of the whole system, it is important that the courts have that discretion.

The noble Baroness, Lady Linklater, mentioned the case of a 13 year-old in a child prison, on breach, who was going to continue to breach whatever happened because he wanted to stay at home with his sick mother. This was a child that the noble Baroness met, so we can assume that it is a real child. Is the Minister satisfied in that case that the breaching system and the enforcement—I am not going to say “robust” enforcement; just enforcement—was working as he would like to see it work? If not, what does he think went wrong in that case that we could put right through this Bill?

I am not going to answer directly—and the noble Baroness would not really expect me to be able to comment on those particular circumstances. What is the guarantee within the Bill that in a similar case a person does not inappropriately end up in wilful breach and then in custody? I refer the noble Baroness to page 168 of the Bill. First, the responsible officer has to use his or her own discretion in making judgments. On page 168, at paragraph 3(1) of Schedule 2, the Bill says:

“If the responsible officer is of the opinion that the offender has failed without reasonable excuse”.

We start from that point.

We have already discussed the discretion that is available to the responsible officer within the guidelines that will be set down. Then there is the discretion given to the courts. In our previous debate, I referred to the court’s ability to substitute one rehabilitation order for another. It could well be that in the circumstances that the noble Baroness raised, one option would be to substitute the RO that the young person was on for another, which would enable that young person to attend to his sick mother. Those are the guarantees.

I thank the Minister for his interesting reply. I had exactly the same thought in my head as the noble Baroness, Lady Stern. I wonder whether it would not have made quite a considerable difference if the child’s age and circumstances had been taken into account. He was, indeed, a wilful breacher—under very particular circumstances.

I am sure, as the noble Earl, Lord Onslow, has already indicated, that we will return to this whole issue. I hope that then, instead of keeping this separate, all the amendments will be grouped together and we will consider them as a whole because, although my amendment went slightly further, as the Minister pointed out, the core issues are exactly the same. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 to 41 not moved.]

42: Schedule 2, page 183, line 26, after “area” insert “or (as the case may be) to a provider of probation services operating in that area”

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 3 agreed to.

Schedule 3 agreed to.

Clause 4 [Meaning of “the responsible officer”]:

42A: Clause 4, page 3, line 24, at end insert “or (as the case may be) an officer of a provider of probation services acting in the local justice area for the time being so specified”

On Question, amendment agreed to.

43: Clause 4, page 3, line 25, leave out subsection (3)

The noble Lord said: In moving Amendment No. 43, I will also speak to Amendments Nos. 44 and 46. These amendments are about a Henry VIII power in the Bill. The Secretary of State is being given power to amend other criminal justice primary legislation and, in particular, the Criminal Justice Act 2003.

The Criminal Justice Act 2003, as the Committee is well aware, is an extremely large Act. As my noble friend Lord Henley said so tellingly, when speaking to the first amendment to this Bill yesterday, much of that Act has not yet been implemented. This Bill already amends it hugely, so why are the Government not using powers already at their disposal to make further amendments?

However, the Delegated Powers and Regulatory Reform Committee did not find this clause inappropriate. That is sad, but not surprising. Distressingly, clauses such as this have become a permanent part of our political landscape and the Delegated Powers and Regulatory Reform Committee has, however reluctantly, accepted it. In those circumstances, once this amendment has been moved, I intend to beg leave to withdraw it. That is unless one or more Members of the Committee are prepared to be more robust than I have been. I beg to move.

I have a long speech and I was going to give forth, but the noble Lord has given the game away: he is not intending to press these amendments. As the noble Lord said, the Delegated Powers and Regulatory Reform Committee made no comment about this and we think that these order-making powers are appropriate in the circumstances. I have nothing to argue against.

On reflection, I am extremely sad that the Committee has been deprived of the noble Lord’s wisdom. Perhaps I spoke too soon. However, I will keep my promise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

Clause 4, as amended, agreed to.

Clause 5 [Responsible officer and offender: duties in relation to the other]:

45: Clause 5, page 4, line 4, after “offender’s” insert “, or his immediate family’s,”

The noble Lord said: I am not sure whether the noble Lord was in his place, though he may well have been, during the recent debate on the amendment tabled by the noble Earl, Lord Onslow. The amendment suggested that a specific criterion should be taken account of by a magistrate when considering a breach. This amendment raises a similar general point to the one made by the noble Earl and other Members of the Committee. It may, of course, invite a similar reply from the Government.

We are not seeking to have this amendment included in the Bill. We wish to draw it to noble Lords’ attention simply because there was a substantive debate on this issue in Committee in another place, which was, uncharacteristically, rather confused. The point here is very straightforward. I hope the Minister will agree that, for children who depend on their parents for the satisfactory fulfilment of their community disposition—transport is the most obvious, but not the only, example—the absence of parental support for religious reasons should be a complete answer to an alleged breach. The point is as straightforward as that. I beg to move.

I am grateful to the noble Lord for moving this more fully than he did his earlier amendment. I have a copy of the Commons debate on this. I suppose the noble Lord is right to say that there was some confusion in the debate. Certainly, on the face of it, this seems a not unreasonable amendment, except in its effect, which could be very confusing. This issue of immediate family, in particular, could cause considerable difficulty. I am not quite sure how one accurately defines “immediate family.” It is not clear to me from looking at the detail of the debate in another place. I certainly appreciate the sentiment behind the amendment, even though it is not something that we can agree with. It would not be practical to extend the consideration as the amendment does, in the terms that it does, because of the difficulties of definition.

We should properly be concerned about the duty of the responsible officer to the young person. When sentencing, the court has to take into account the young person’s family circumstances, as well as the offender’s religious beliefs as stated, before making a youth rehabilitation order. In practice, we would expect that the youth offending team would have regard to the young person’s family circumstances in so far as that is practicable. However, taking account of his or her family’s religious beliefs should not be a mandatory requirement imposed in the legislation. No doubt that is an issue that could be picked up in the round, and no doubt it is something that would be considered.

The Bill’s approach is consistent with similar provisions in Section 217 of the Criminal Justice Act 2003, which relates to the adult community order. I should add that interpreting so wide a duty could be fraught with problems of definition. I referred to one such problem in the concept of immediate family. Moreover, a situation could develop where there were conflicting demands or needs—where, for instance, parents are separated and have a different religious belief from the offender’s, or where parents as a couple have a different religious belief from the offender’s. That said, I hope that the noble Lord will withdraw his amendment.

I hope the noble Lord will forgive me if I say that I found his response somewhat suffocating. The point is really very simple. Let us suppose that the definition of “immediate family” is father or mother. I am not seeking to have this provision in the Bill; I would simply like to have a statement from the government Bench in relation to the religious beliefs of the child’s father and mother. If, for plain religious reasons, the father or mother is unable to transport the child to undertake a disposition, would the Government agree that that is a complete answer to any allegation of breach? The Minister looks perplexed.

I am not sure that it is; that is why I am perplexed. I am not sure that would be the case. It is an answer, but there may be surrounding circumstances that one might need to take into consideration. Let us reflect on this one. I do not want to have an elongated argument about it, because I think that the noble Lord is trying to make a reasonable point in his amendment. He has said that he will not press the amendment, and we will think about it.

I was about to say that I was moving from suffocating to suffocated, but just in time the Minister came with a suitable cylinder of oxygen to save me. I am most grateful for the Minister saying that he will come back on this point and, in those circumstances, I gratefully beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

47: Clause 5, page 4, line 12, at end insert “written”

The noble Lord said: I think I can make this point very briefly, but it has gained added importance since our various discussions this afternoon about the consequences of breach. I know that it is normal practice that instructions are given in writing, but now it seems to me to be crucial that they are. Of course, it is always useful to have proper records of what the offender has been asked to do, but now it is vital. Harsher breach consequences will demand much greater clarity about what the child was or was not asked or required to do. In any case, it seems, if the Government are going to get their way in this Bill on the general question of breach, then the audit trail of what is going on in the world of community orders must be as precise and full as possible. Those are the ideas that have lain behind the amendment. I beg to move.

I ought to say at the outset that I understand the noble Lord’s point perfectly well, and given the line of argument that we have listened to before, I can see why noble Lords opposite might feel that this is a sensible and practical amendment. I realise that it has been aired in another place and I have read that debate. I was interested and intrigued that Mr Garnier was anxious to avoid, as he described it, over-legislating and over-bureaucratising the system. The allegation is often made that the Government are seeking to do that by legislating in the style and manner we do.

Our contention is that these matters are already dealt with satisfactorily in guidance. The amendments are therefore not necessary. As many noble Lords will attest, the Youth Justice Board’s national standards set out what the responsible officer is required to do in respect of instructions to young offenders made subject to orders. Those standards state that an agreement must be produced with the offender and that it should be in writing and signed. It should specifically include acceptable and unacceptable absence criteria, setting the terms under which a breach might follow. The standards include a right to be treated fairly and with respect, something that we would all endorse. There is also a requirement to behave acceptably, which goes to the core of why such orders will be in place in any event, and the importance of time-keeping is dealt with. As will be appreciated, the last point is important because of the young offenders’ sometimes chaotic lifestyles.

As for the young offender notifying his responsible officer of a change of address, a matter addressed in part in the proposal, immediacy of notification must be the priority. It will be essential for the information to be got to the responsible officer as soon as possible. It could be done by telephone but, in this day and age, it will most probably be by mobile phone or even text message. A requirement to notify a change of address in writing could present difficulties for young people with literacy or learning deficiencies, a feature which we acknowledge is present with many of those who are caught up in the criminal justice system at a younger age.

I do not believe that it is either necessary or right for the Bill to specify that a responsible officer needs to keep written records of the instructions. This is, after all, basic case management. As we have already outlined, the Youth Justice Board’s national standards require instructions to be put in writing and provided to the young offender. All responsible officers must keep valid and accurate records as these may be required subsequently in court. If a young person wants to see details from their case record, they may apply under existing data protection procedures. In our view, it is not appropriate to repeat those in the Bill.

The amendment is not necessary. The instructions are already clearly set out in national standards. We would fall foul of Mr Garnier’s proscription if we were to accede to this amendment.

I am always reluctant to fall foul of my honourable and learned friend in another place. If the Government are going to take the approach to breach that they have said they have, how can they not require in every case the details of the breach to be before the magistrate or judge in writing? The Minister says that national standards require it; but national standards are not always followed. Indeed, there is no legal obligation to follow them. We seek to make it a legal obligation. A person against whom an allegation of breach is made in the court would be perfectly within their rights to say that there was no record of it and that no written instruction was sent to them. That undermines the case for breach. Is this not then in line with what the Government are seeking to do? I am actually trying to help the Government here. Is it not in line with the philosophy on breach outlined earlier today that, correspondingly, the Government ought to have obligations that instructions, and records on the failure to respond to those instructions, are in writing?

I appreciate that the noble Lord is trying to be helpful, but I think that the level of detail that he is attempting to argue should be placed in the Bill is inappropriate. That detail is best left to instructions. The point is very clear and the standards are very clearly set out. In my description, I made that very obvious. I also made the point that responsible officers must keep valid and accurate records as they may be required in court. The noble Lord seemed to suggest that there was no requirement to keep a record. The instructions to responsible officers are very clear: these records must be kept in terms.

If we were to detail in the Bill this instruction in a particular way and if at some later stage it was felt that that was not the most appropriate form in which it should be set out, we would have to come back to reargue the legislation and use a legislative slot to make that simple change. I do not think that that is an intelligent use of the legislative process. That is one of the reasons why these kinds of matters, important as they are, which I acknowledge, are best kept in the form of guidance which is clear and well understood. That guidance can be consulted on and, from time to time, changed when it suits and when it is right to change. For those reasons, I do not think that the amendment is necessary, nor do I think it is required in the terms set out by the noble Lord.

I find the Minister's reply unusually unconvincing. If national standards are as effective as the noble Lord suggests, in 90 per cent of the cases, what I am asking for will be done anyway; it is the 10 per cent of cases that worry me. In those circumstances a magistrate will be placed in a very different position from the other 90 per cent. I see that the noble Lord is immovable on this matter. I shall reflect on whether I want to pursue it on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 48 and 49 not moved.]

Clause 5 agreed to.

Clause 6 agreed to.

Schedule 4 [Youth rehabilitation orders: consequential and related amendments]:

I understand that Amendments Nos. 50 to 62 and 63A and 64A have already been debated although they are not shown as such on the groupings list. Unless any noble Lord objects, I believe they can be moved formally.

50: Schedule 4, page 196, line 15, after “2000” insert “or (as the case may be) a provider of probation services operating in that area”

51: Schedule 4, page 196, line 21, leave out from “appoint” to “who” in line 22 and insert “a person”

52: Schedule 4, page 196, line 25, at end insert—

“(5) The person appointed under sub-paragraph (4)(b) must be—

(a) where the appointment is made by a local probation board, an officer of that board;(b) where the appointment is made by a provider of probation services, an officer of that provider;(c) where the appointment is made by a youth offending team, a member of that team.”

53: Schedule 4, page 199, line 39, after “reside” insert “or (as the case may be) a provider of probation services operating in the local justice area in which he resides or will reside”

54: Schedule 4, page 200, line 2, after “force” insert “or (as the case may be) an officer of a provider of probation services acting in the local justice area in which the offender resides or will then be residing”

55: Schedule 4, page 200, line 39, leave out paragraph (b) and insert—

“(b) for “(2) above” substitute “(2) or (2A) (as the case may be)”, and(c) in paragraph (b) for the words from “of the” to “board” substitute “of—(i) the offender, or(ii) the officer of a local probation board, officer of a provider of probation services or member of a youth offending team (as the case may be),”.”

56: Schedule 4, page 202, line 44, leave out from “(3)(b)” to “conferred” and insert “—

“(a) after “the board” insert “or (as the case may be) require a provider of probation services to appoint an officer of the provider,”, (b) after “the order” insert “—(a) ”, and(c) at the end insert “; or(b) the functions”

57: Schedule 4, page 202, line 47, at end insert—

“as the case may be.”

58: Schedule 4, page 209, line 25, after “board” insert “or an officer of a provider of probation services”

59: Schedule 4, page 209, line 29, after “board” insert “or an officer of a provider of probation services”

60: Schedule 4, page 209, line 32, after “board” insert “or an officer of a provider of probation services”

61: Schedule 4, page 209, line 34, after “board” insert “or an officer of a provider of probation services”

62: Schedule 4, page 209, line 36, after “board” insert “or an officer of a provider of probation services”

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Clause 7 [Youth rehabilitation orders: interpretation]:

[Amendment No. 63 not moved.]

63A: Clause 7, page 4, leave out line 42

On Question, amendment agreed to.

[Amendment No. 64 not moved.]

64A: Clause 7, page 5, line 50, leave out from beginning to end of line 4 on page 6

On Question, amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Purposes etc. of sentencing: offenders aged under 18]:

65: Clause 9, page 7, line 5, leave out subsection (1) and insert—

“(1) After section 142 of the Criminal Justice Act 2003 (c. 44) (purposes of sentencing) there is inserted—

“142 Purposes etc. of sentencing: offenders aged under 18

(1) This section applies where a court is dealing with an offender aged under 18 in respect of an offence.

(2) The court must ensure a proportionate response to offending behaviour.

(3) The court must have regard primarily to the welfare and well-being of the offender, in accordance with its duties under section 44 of the Children and Young Persons Act 1933 as amended.

(4) The court shall have regard in particular to—

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);(b) his physical, emotional and educational needs;(c) the likely effect on him of any change in his circumstances;(d) his age, sex, background and any characteristics of his which the court considers relevant;(e) any harm which he has suffered or is at risk of suffering;(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;(g) the range of powers available to the court under this Act in the proceedings in question.(5) The court must also—

(a) have regard to the purposes of sentencing mentioned in subsection (6), in so far as it is not required to do so by subsection (2), and(b) in accordance with section 37 of the Crime and Disorder Act 1998, have regard to the principal aim of the youth justice system, namely to prevent offending (including re-offending) by children and young persons.(6) The purposes of sentencing are—

(a) the reform and rehabilitation of offenders,(b) the protection of the public, and(c) the making of reparation by offenders to persons affected by their offences.(7) This section does not apply—

(a) to an offence the sentence for which is fixed by law,(b) in relation to the making of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction under Part 3 of the Mental Health Act 1983.(8) In respect of a proportionate response, as stated in subsection (3), this shall be considered to mean a variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care, in a manner proportionate both to their circumstances and the offence.””

The noble Lord said: We move now to Part 2 and we enter into another phase of the Bill dealing with the general sentencing provisions. Clause 9 seeks to amend the Criminal Justice Act 2003 by inserting purposes of sentencing of offenders under the age of 18. In particular, the court has to have regard to the purposes of sentencing mentioned in subsection (4). Those purposes set out in paragraphs (a), (b), (c) and (d) are what the Government have in mind. The primary purpose of sentencing is said here to be “the punishment of offenders”. Our amendment is directed to that aspect of the clause.

The amendment seeks to ensure that in the sentencing of children, the child’s welfare is a primary concern. We argue that sentencing authorities should have the same duties as family courts in having regard to the welfare of the child as defined in Section 1 of the Children Act 1989. No one with experience of the criminal courts as I have can view, without something approaching despair, the problems that defendants have faced during their lives, particularly defendants under the age of 18. There are certain estates in London and in other large conurbations, not to mention in county towns, where it is extremely difficult for a child to break out of a cycle of crime and offending that exists within a family. If we are to be constructive in this Bill, we have to look for ways of breaking that cycle. One of the ways of breaking it is to take away the primary purpose as punishment and to look at other ways of dealing with young offenders. That is why this amendment sets out different priorities.

In this amendment, which also seeks to amend Section 142 of the Criminal Justice Act, we suggest in subsection (2) that the court must ensure a proportionate response to offending behaviour. It is not so long ago since the Lord Chancellor sent out an edict that children who are convicted of stealing mobile phones should be dealt with in a particularly harsh way. I have experience of a young man who, at the age of 14, was sent to detention for three and a half years as a result of a series of robberies involving mobile phones within a two or three-week period; 42 months is hardly a proportionate way of dealing with that offence. They were serious offences but three and a half years at the age of 14 is quite an extraordinary punishment.

In subsection (3) we have put forward a direction to the court that it,

“must have regard primarily to the welfare and well-being of the offender”.

In subsection (4) we suggest that there should be a checklist that the court has to address when sentencing. It includes,

“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

“(b) his physical, emotional and educational needs;

“(c) the likely effect on him of any change in his circumstances;

“(d) his age, sex, background and any characteristics of his which the court considers relevant;

“(e) any harm which he has suffered …

“(f) how capable each of his parents … is …

“(g) the range of powers available to the court”.

We feel that that is a suitable checklist that any sentencer should have before him when sentencing someone. We have amended the purposes of sentencing in order to remove punishment as the primary purpose and to put, for youngsters under the age of 18,

“(a) the reform and rehabilitation of offenders;

“(b) the protection of the public, and

“(c) the making of reparation”.

We think this is a much more constructive way of breaking that cycle that exists, to which I have already referred.

We argue that that conforms with children’s rights standards; first, the United Nations standards for juvenile justice—the so-called Beijing rules. Rule 5.1 states:

“The juvenile justice system shall emphasise the well-being of the juvenile”.

Article 3 of the United Nations Convention on the Rights of the Child, which I am sure has been quoted already in Committee, requires that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law”—

and so on—

“the best interests of the child shall be a primary consideration”.

Under Article 40.4 of the convention, there is a requirement that,

“a variety of dispositions, such as care, guidance and supervision orders; counselling”—

and so on—

“shall be available … to ensure that children are dealt with in a manner appropriate”.

The Government have moved considerably in many ways in improving what used to be the provision for youngsters under 18. Putting punishment first is going against the conventions to which we are a party. They are instruments requiring that the promotion of welfare and well-being should be the primary consideration in proceedings for children.

Sentencers will listen if this positive agenda is put before them. They will, we hopes, follow our check list, which may mean that some of the youth orders, such as the youth reparation order that we have been discussing, will be used in circumstances when otherwise prison would be the only alternative. This is a way of ameliorating some of the defects in the criminal justice system affecting young children. It is in accordance with the conventions to which we are a party. I beg to move.

The amendment is grouped with one of ours. I have been given a signal of two fingers from the other side of the Committee, implying that there are two amendments. The noble Baroness is quite right.

The substantive point in our two amendments is that the interests of the child should be the first and main thing to be considered. The reasoning behind this is that if the child’s interests are looked after properly, that child is more likely to be reformed and made good. That is in the interests of us all. It is in the interests of the sink estates, so ably described by the noble Lord, Lord Thomas, who moved the amendment. We are all conscious of them. As he rightly said, they are not only in big conurbations but appear in parts of leafy conservative country towns as well. That problem is not confined to inner cities and it is extremely difficult to get to grips with. It is not a very new problem but it will be one that my children, grandchildren and great-grandchildren will probably address in the future. We can only just struggle to make it better.

If we get our order of priorities right, which is to ensure that the interests of the child come first, and follow our international obligations, we shall inch a little way further to try to help some of these severely damaged children to the benefit of not only them but us all. I note that in the amendment moved by the noble Lord, Lord Thomas, there is a great list of things to which the court should have regard. I would hope that the courts would have regard to those things anyway.

I was slightly depressed to hear of the young man getting three and a half years, which is a quarter of his life, for nicking mobile telephones. I am sure that it is extremely irritating to have one’s mobile telephone nicked; I am not defending that offence, but it seems to be quite a harsh sentence. Whether its effect is productive or counterproductive is open to question. It seems to me that the proposals in the amendment should automatically be observed by any judge or magistrate involved in such cases, but I hope that we can concentrate on the important bit, which is the primacy of the child’s interests in the criminal justice system as a whole. I support the amendment.

I, too, shall speak to Amendments Nos. 66 and 69, so ably spoken to by the noble Earl, Lord Onslow, but I shall begin with a more general point. I confess that I am bemused by the meaning of,

“the principal aim of the youth justice system”.

I have read it a number of times, have reflected on it since yesterday, and I still ask myself what the court can think when told:

“The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent … reoffending … by persons aged under 18”.

Obviously, it would not help to achieve that aim to send someone into custody, as the evidence is clear that to do so is a recipe for reoffending. What else does it mean?

The court does not have the powers to take most of the measures needed to reduce reoffending, such as powers to commission a place in an adolescent mental health unit. I have learnt that the new youth justice legislation introduced in the Republic of Ireland gives the court the power to demand an appropriate mental health placement. The court does not have the powers to demand social work attention, a place in a special school, or any of those aspects of welfare provision that might help to reduce reoffending. The “principal aim” is an extraordinary and inflated view of what a criminal justice system can achieve or what is proper for a justice system to seek to do. This inflated idea of what the system can achieve has landed the Government in substantial difficulty.

I want to move on to the detail of the amendments spoken to by the noble Earl, Lord Onslow. The Joint Committee on Human Rights was surprised to see the provision that in sentencing a child under 18 the,

“court must have regard primarily to the principal aim of the youth justice system … to prevent offending (or re-offending)”.

The Explanatory Notes state:

“Article 3 CRC provides that in all actions concerning children their best interests are to be a primary consideration”.

The Explanatory Notes accept that the duty in the Children and Young Persons Act 1933, which requires the court to have regard to the welfare of the child, applies, but this is subordinate to the principal aim of the youth justice system.

The Joint Committee on Human Rights wrote to the Government and asked how they reconciled their position with their obligation under Article 3 of the Convention on the Rights of the Child. The Government’s reply is worth quoting, although it is not that short:

“We believe it is right that welfare should not be the primary purpose of sentencing and Article 3 of the CRC does not require that it should be. It requires that the best interests of the child shall be a primary consideration. It is. That is why the welfare of the child is specifically mentioned in clause 9 as something the courts must have regard to when sentencing”.

It goes on:

“A justice system exists to tackle crime. Then it must also consider the needs and interests of victims and the wider community which is why punishment must remain a purpose of sentencing.”

The Joint Committee on Human Rights, unsurprisingly, was not convinced by that reply. The committee therefore concluded that the effect of Clause 9 is to subordinate the child’s best interests to the status of the secondary consideration below the primary consideration of crime prevention. The committee therefore recommended that the provision subordinating the duty to have regard to the welfare of the child to the principal aim of the system should be deleted. It also recommended that the Bill should be amended to make it explicit that the welfare of the child should be a primary consideration. These two amendments seek to implement those recommendations. I am glad to support the noble Earl, Lord Onslow.

I entirely support the amendment spoken to by the noble Earl, Lord Onslow. I consider it important that we should start at some stage to make the welfare of the child, even the child offender, a primary consideration. I am not certain whether it should be the primary consideration.

Perhaps I may interrupt the noble and learned Baroness briefly. With the greatest respect, it is slightly tautological to have three primary considerations. Primus inter pares is possible, but there can be only one primary.

Of course, I bow to the noble Earl’s English. He is absolutely right, but it leads me to the point that I am concerned about in the amendment of the noble Lord, Lord Thomas of Gresford. Two points worry me. Perhaps the more important is that it omits punishment of the offender. I believe that sentencing has to take into account that, where appropriate, children have to be punished. We are not in a world where the child’s welfare forbids punishment where it is due. Children, like adults, have to be punished on occasions. Not all children have to be punished for all offences. As I wish to say in respect of a later amendment to the Bill, I hope, as indeed the Government choose, to have diversion of children from the offending court where offences have to be dealt with. But to ignore that punishment must be part of the duty of sentencing is to ignore a basic importance for the protection of the public.

I have not put in a further amendment, but I would like to see something to the effect of the punishment of offenders “where appropriate”, which would provide the ability to punish or not to punish as might be appropriate for the child. The other perhaps rather more minor point that I would take issue with in the amendment of the noble Lord, Lord Thomas of Gresford, is that I have the impression that he has taken Section 1(3) of the Children Act word for word into the amendment. I am not in disagreement with paragraphs (b) to (g), although I am not certain that (g) is appropriate. I am concerned about (a). I am not sure how far,

“the ascertainable wishes and feelings of the child”,

which are entirely appropriate in children proceedings, are equally appropriate in criminal proceedings. Of course the child as a defendant and the child whose welfare is to be considered have to be consulted. I am not certain that that needs to be put into primary legislation. That is something that the court would have to do in any event.

My preference is to support the amendment of the noble Earl, Lord Onslow, which probably covers all that is necessary, although I have no objection to the majority of what is said by the noble Lord, Lord Thomas, apart from the two points. However, I feel strongly that one has to keep punishment in, even if it is punishment “where appropriate”, as I would prefer.

If a child has no conception that it has done wrong; if a child cannot comprehend, then punishment cannot be appropriate. If the child nicks a Mars bar, it has to know that it should not have nicked the Mars bar. Then punishment is legitimate. If the child does not know what it has done wrong, then one has to leave punishment out and go to reformism. Am I wrong?

I certainly would not see a child who did not have the understanding of the allegation made against him. He is not someone whom one should be punishing in the sense that I was looking at punishment. However, there are children who offend who need to be told that this is unacceptable behaviour and that they have to answer for the consequences of what they have done. We cannot take all children out of the criminal justice system, but there are out there many children who offend as a response to their appalling upbringing and dreadful background. Those children probably need help rather than punishment.

I support the amendment with the qualification that most of my reasons for wanting to support it were expressed in my remarks on Amendment No. 1 yesterday, and it would be taking a liberty to repeat those arguments all over again. Whatever I think of my noble friend from time to time, most of the time he is a decent chap trying to field a difficult wicket. Having said that, he is literate and he knows very well what we said to Amendment No. 1. It applies equally strongly today. I want to take up warmly the point made by the noble Earl. We are in a muddle conceptually about what we are doing. If a child is not aware that he has transgressed, then punishment is wrong.

The point is to help the child to understand how they have transgressed. It is a social educational point because society failed that child in one way or another. Even in the context of the family, the child has been failed. It does not have the sense of right and wrong that we all take for granted; not that we always live by it. Sooner or later one has to bare one’s chest: I believe that the concept of punishment has more to do with assuaging society’s emotional needs than with getting the situation right. It is often emphasised to appease the wilfully ignorant popular press. It seems that as one who will never give up on the fight for rehabilitation being the principal objective, because it makes so much sense—I have said it so often that I will not say again why it makes so much sense—of course the noble Baroness is right that there are some people who know perfectly well that they have done wrong and it needs to be pointed out to them that that is not acceptable in society.

I would be happier if we could get back to old-fashioned language in this context and talk more about corrective action to bring a deviant into society: to “come on board”. But I worry about the social and psychological implications of punishment and its real motivation, conscious or subconscious.

Briefly, I support both these amendments. The use of the word “punishment”, as applied to what you do as opposed to the act of sentencing, is where I part company with my noble and learned friend Lady Butler-Sloss. Of course, somebody who is too young and has a lack of understanding and all the other aspects referred to cannot possibly be subject to any form of punishment; correction, maybe. They should be shown a better way of life, and helped and guided not to reoffend.

Above all, we are back to the preventive side of all of this. This is where the effort must be, and where the Government and everybody who speaks on this wish to place emphasis. On this detailed list of additions to Part 2, they are very lengthy and a lot have come up in previous debates. Some could perhaps be cut back a little but, by and large, they underline the important aspects of what sentencers should be taking into account as they decide what to do in the best interests of the child and society. It is about time we faced up to this pretence that you will protect society by sounding fierce, and began to educate the public rather more that the best way to protect them is to ensure that we turn as many young people and their families on to a better understanding of how a better life can be achieved.

I, too, support these amendments. They refer directly back to the important debate we had at the start of Committee, where we tried to address the overarching principles which inform, or should inform, the Bill. They here move from those basic principles to the purposes of sentencing, how the principles are translated into the sort of outcomes we seek, and the practical realities of how they are to be achieved. We come back once again to the central principle and purpose of the overarching welfare of the child, and its best interests being the primary—as the noble Earl, Lord Onslow, reminded us—consideration.

Article 44 of the CRC requires that:

“A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence”.

That is the fuller quote of what I spoke to in the previous amendment. This articulates exactly the template—if you articulate templates—that we need to guide us through the outcomes we should be seeking for our children, which are, in turn, translated admirably into the amendment before us today. Ideally, I would prefer to swap subsections (2) and (3), putting “welfare” before “proportionate response”, but I will not quibble with that. I am sure that all Members of the Committee would heartily agree with the concluding purposes of reform, rehabilitation, public protection and reparation by offenders. However, I know that the Government’s position is that punishment should form part of the menu of purposes; not only have they, as the Minister has today, said so clearly, it is the first of the list of purposes in the Bill. However, it is excluded from the amendment.

I have listened carefully, and I am not surprised by what the distinguished noble and learned Baroness, Lady Butler-Sloss, has said about punishment, but I do not know that this is necessarily a forum for discussing something so huge and complex as what constitutes “punishment”, what we mean by it and where it comes in a whole range of circumstances, although we must somehow try to nail a little of it in the Bill.

The fact remains that it is largely because of the desire to deliver punishment, which could be characterised in this context as a frightening and unpleasant experience and how you “learn your lesson”, that the alarming rise in child custody has taken place against a fall in offending. We also discussed that at length last night. Children and society are being further damaged; I do not think that there will be dispute over that. The key principles have been departed from.

My experience of rigorous, systematic programmes of reparation and restoration are that they can be difficult, demanding and challenging for children, as well as unpleasant. However, they are also essentially constructive, which is perhaps the difference in this context between reparation, restoration and straight punishment. Punishment is essentially more negative. The punishment of prison is negative both in its application—by which I mean the rupturing of family, home, work or school—and the outcomes for reoffending, criminalising and so on.

I declare an interest as I chair the Rethinking Crime and Punishment initiative—a modest little title—which has been looking at the use of custody and its alternatives in general, theoretical and practical terms over the past five years. In practical terms, we have been doing this in the Thames Valley, Cheshire and, shortly, in London. We have been developing a deeper level of engagement between judges and magistrates, and the programmes and community-based providers of alternatives in the community, including the offenders themselves. We have also been bringing local members of communities concerned into the choice and delivery of the sort of community reparation and restoration they would like to see. The results are very encouraging. We are developing, in certain ways, the Government’s community payback schemes but with the crucial difference that the sentencers—the people who actually make the decisions—are essentially part of the programme. The understanding we have seen develop has also led to some palpable changes in attitude to community penalties by both sentencers and communities.

The amendment therefore moves us on from a relatively simplistic, knee-jerk recourse to punishment, to something which is not only more appropriate to children’s needs but, crucially, involves making good the damage done. It is a positive response. I am sure that those are the lessons we want all our children to learn. I would argue that we bring up our own children along those principles—not just giving them a really hefty wallop; although I have certainly been known to do that from time to time. Anyway, that is what we want for our young offenders.

Finally, I firmly believe that the belief of politicians in particular, and also the press—whose views feed off each other with their mutual, essentially short-term, interests of holding on to a seat and selling tomorrow’s newspaper—do not represent the broad views of the public, which are far less retributive than they would have us believe. At RCP, we conducted our own poll through Mori which demonstrated that, and there has been a steady stream of similar polls in the past year or so. Most interestingly, last year, for the first time, there was a poll of the victims of crime. It was published by SmartJustice and showed, inter alia, that just under two-thirds did not believe that prison prevents offending and only 38 per cent supported the building of more prisons. What everybody wants above all is that the offender does not do it again—here I echo the noble Baroness, Lady Stern. We all know that prison cannot achieve that, most especially with children, but that community interventions can and do. However, the fact still remains, as we discussed at some length on our first day in Committee, that the current purposes of sentencing are failing to an enormous extent. This amendment represents an important building block in the changes that we need to see.

I support the amendment tabled by the noble Earl, Lord Onslow. I welcome the strong emphasis on the welfare of children. I recognise what my noble and learned friend Lady Butler-Sloss said about the need for sanctions, boundaries and punishment for children where appropriate. However, considering that there are more than 3,000 children in custody in this country, while France and Germany combined have only 1,300, we have to say that we are not getting the balance between welfare and punishment right. I particularly welcome this amendment because, despite the welcome efforts of this Government in the provision for foster care, social work, psychiatric units and residential care, we still have so much further to go in that. We still lack about 10,000 foster carers, and demand for social workers still exceeds supply. We put the most vulnerable children into children’s homes to be cared for by the least qualified staff. A survey looking at residential childcare workers in this country and on the continent found that in this country 20 per cent had a degree-level qualification, but in Germany it was 50 per cent and in Denmark it was 90 per cent. We have so far to go in this area. I welcome the emphasis on considering the welfare interest of the child because it forces us to think that we are imprisoning—putting behind bars—many children. Of course we have to punish some, and we have to put some children in those settings, but we, as a society, have failed many children by failing to provide them with consistent, well supported carers, by failing to support our foster carers over a long period of time, and by failing to put what is necessary into children’s homes.

The noble Lord, Lord Thomas of Gresford, referred to the mobile phone incident and the children who were given a three-and-a-half year sentence. At that time, a young man called Joseph Scholes was in a children’s home. When that response to the mobile thefts took place, he was newly there and went out with a group of his peers. One of the others stole a mobile phone and because of the strength of feeling about that at the time Joseph Scholes ended up with a custodial sentence—that very vulnerable young man. I cannot speak specifically about the children’s home, but I know that generally speaking staff in children’s homes need far more support than they get. If only the staff in that children’s home had had the support to engage that young man and stop him going out in the street. He ended up being sent into custody. It was recognised that he was highly vulnerable, but there was no place for him in an overcrowded system, and he ended up in a young offenders institution. He was put under watch, but it was not good enough, and he hanged himself. I think I am correct to say that there was a history of abuse in the family.

I welcome this amendment, and I look forward to the Minister’s response. This amendment implies that it is no longer acceptable to lock up children as frequently as we do—to put them behind bars as frequently as we do—because of the lack of a decent welfare alternative: foster carers, social workers and residential carers. I hope the Minister will welcome the spirit of this amendment.

I follow my noble friend from a rather different angle in supporting the amendment tabled by the noble Earl, Lord Onslow. When I retired from the public service some 20 years ago, I found myself, rather to my surprise, as chairman of the British branch of the United Nations Children's Fund. One of our first tasks in the years that followed was the negotiation of the Convention on the Rights of the Child, to which we made a considerable contribution that was not always well received by Governments in this country. Looking at the terms of Clause 9 in Part 2, which deals with sentencing, I can say that those of us who have operated in the field of international child welfare find it a strange reaction because it appears that we are still concentrating on sentencing rather than on the rights and needs of the child. From my background, that looks like a very odd approach.

The more I listen to this superb debate, the more I am coming to the conclusion that the right place for the amendment to Clause 1 tabled by the noble Baroness, Lady Stern, is in Clause 9. I shall go no further than to say that I am extremely sympathetic to the amendments tabled by my noble friend Lord Onslow and the noble Lord, Lord Thomas. However, I wonder whether we ought to reflect further on where we locate the excellent contribution that the noble Baroness made yesterday, because it might affect the way that we approach the question of the primary purpose of sentencing, particularly when details follow that are not consistent with what the noble Baroness wishes.

I shall not pursue that point any further because I want to address the conformity of the clause with our international obligations; a matter upon which I found the JCHR report especially impressive. As your Lordships are by now well aware, the Bill provides that,

“where a court is dealing with an offender aged under 18 in respect of an offence … The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent offending (or re-offending) by persons aged under 18 … The court must also … have regard to the purposes of sentencing”—

which are,

“the punishment of offenders … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation by offenders to persons affected by their offences”.

The court must also have regard to the welfare of the offender, as required by Section 44 of the Children and Young Persons Act 1933. That duty is expressly made subject to the new duty to have regard to the principal aim of the youth justice system. It is extraordinary to reflect that in 1933 an Act could take such an enlightened approach in what we regard, perhaps not entirely rightly, as being a less enlightened age.

The Explanatory Notes to the Bill state that:

“The Government does note that Article 3 of the Convention on the Rights of the Child provides that in all actions concerning children their best interests are to be a primary consideration. The duty under section 44 of the Children and Young Persons Act 1933, to have regard to the welfare of the particular child … will continue to apply”.

However, Clause 9 clarifies that where the court is sentencing a juvenile offender it must primarily have regard to the principal aim of the youth justice system.

Why do the Government consider that that provision is compatible with the obligation in Article 3 of the Convention on the Rights of the Child to ensure that the best interests of the child shall be a primary consideration in all actions concerning children? Their view, as I understand it, is that it is right that the courts should have regard primarily to the principal aim of the youth justice system when sentencing a young offender. The Government see no incompatibility with Article 3, apparently because that article only requires the welfare of the child to be “a” primary consideration in sentencing, not “the” primary consideration. The obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children.

However, the effect of Clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention; in other words, to treat the welfare of the child as a mere supporting factor. In our view, the Bill should be amended to delete the provision which subjects the duty to have regard to the welfare of the child to the primary duty to have regard to the principal aim of the youth justice system. We also believe that the Bill should state that the sentencing court is required to have regard to the welfare of the child as a primary consideration as required by the convention.

I have a second point about the consistency of the Bill with our international obligation. If your Lordships glance at proposed new Section 142A(4) in Clause 9, which they will have already done, they will see the statement about the purposes of sentencing, which are:

“the punishment of offenders … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation by offenders to persons affected by their offences”.

These purposes seem to me to be indistinguishable from the purposes set out for adult sentencing. How do these purposes differ from the purposes of adult sentencing?

As the Minister is well aware, we are signatories to more than one international convention which make it absolutely clear that the approach to sentencing children is entirely distinct from the approach to sentencing adults. I find none of this in the proposed new section in Clause 9, despite these obligations. So what has driven the Government in setting out a series of purposes, as they have done?

Like the noble Lord, Lord Kingsland, I think this has been a riveting debate and it has been a real privilege to have listened to the contributions of noble Lords. In one sense there was quite a profound disagreement; on the other hand, it is quite clear that all of us share the same aims. I will seek to reflect that in my response.

I am very sympathetic to the pressures on young people and to the many concerns that have been expressed about the condition of society in which many of them find themselves. Anyone who has been or is a parent will understand that. Call me old-fashioned but I think the great majority of people know the difference between right and wrong and that when someone has done something wrong, they should be punished for it. I do not think that is a knee-jerk reaction from the media.

The more we go on with this, the more I want to come back to what the noble Lord, Lord Ramsbotham, said about the child in the Bulger case having a mental age of four. Of course the knee-jerk reaction in a case like that, because one is so horrified by what has happened, is to tear the little brute to pieces and feed them to the cat, or whatever. That is what one’s immediate emotional reaction should be. But if the child has a mental age of four at the age of 10, that child cannot possibly understand the meaning of punishment. So the adult reaction of tearing it to pieces and throwing them to the wolves—I exaggerate a bit obviously—seems to me to be something which we have to restrain and hold back. Of course the noble Lord is right in that that is how people react, but should we not in legislation try to rise above that if we think there is a better way to go about it?

I am not going to comment on the Bulger case. Of course there will be situations in which a child cannot understand that what he or she has done is wrong. Clearly you need a system that will respond to that. I was just making the general point that most people understand and support the idea of punishment. In my early days as a councillor in Oxford, I represented—I am not going to call it a sink estate because that would be pejorative—a council estate that had many challenges. Notwithstanding the difficult circumstances in which some young people are brought up, it is striking how many of them manage to do the right thing. One has to bear that in mind when considering these matters.

This debate has taken place in the context of custody. The noble Earl, Lord Listowel, particularly focused on children who find themselves in custody. I hope I have made clear that this Government believe that custody is the last resort, that the construct of youth rehabilitation orders is to strengthen the whole community sentencing structure and that we see YROs and the general policy direction we wish to see embraced as one where punishment can be constructive.

I am grateful to the noble Lord for letting me intervene. I just wonder what he means by punishment. It is such a wide-ranging word and notion. In what he is saying at the moment, what does he mean by punishment?

I mean that people have to face up to the consequences of what they have done through the various sanctions that are in place. But as part of that sanctioning process, there can be constructive programmes, hence the emphasis on the prevention of reoffending. I agree with what the noble Earl, Lord Listowel, said about some of the issues around social care and fostering. We took part in the Children (Leaving Care) Bill a number of years ago which reflected on some of the very poor outcomes of children in care. There is much that we need to do for those children who end up in custody but we should not run away from the fact that punishment is part of the framework we are dealing with.

Language is important. Sometimes the way in which we use language suggests that the differences are greater than they are between us. My noble friend suggested very good terminology himself a few moments ago, when he said that sanctions might be necessary. Let us consider a loving parent bringing up a young child who is being very difficult—I think of my grandchildren at the age of 4 or whatever. It is not punishment that is required; it is spelling out to them that, if they behave in an anti-social way, they will lose some of the things that they want because their behaviour will not be tolerated. It involves developing the power to reason, to understand and to take things into account. Sanction is a much better—and stronger—word than punishment.

I understand that, but there is always a danger that, because in this day and age we are sometimes so frightened to call a spade a spade, we are disingenuous and people do not understand exactly what we mean. There is a real debate to be had about—

I take up what the noble Baroness, Lady Linklater, said. In certain circumstances, punishment means retribution. We are not, I hope, talking about punishment as retribution. If we talk about punishment as education or help, we can happily talk about it. Punishment also should have an element of deterrence. In an article on capital punishment Lord Gardiner, when he was Lord Chancellor, said that retribution, deterrence and reformation were the three points of punishment. One cannot use the word “punishment” only as retribution, and I slightly got the impression that the Minister was doing that. I am trying to help the noble Baroness, Lady Linklater, as well as the Minister. I am even sometimes thinking my own thoughts out loud to get to the bottom of this complicated matter.

I do not disagree with what the noble Earl said. I hope that I did not give the impression that I saw punishment simply as retribution. I think that I said earlier that it could be part of a constructive approach to helping young people move away from the circumstances in which they commit crimes and helping them to rehabilitate and not to reoffend. On a technical point, I wish to make it clear that, although punishment is listed first, it is not a hierarchical list. The purposes of sentences have equal weight, but they are subject to the principal aim of the youth justice system.

One of the glories of these debates is that Members of the Committee read out my answers because they have already been placed on the record. I do not want to bore the Committee by repeating that. However, I shall speak a little on Clause 9, which is designed to clarify the current law in order to remove confusion and to bring sentencing into line with the rest of the youth justice system. It is interesting that this has been welcomed by a number of relevant organisations. The Magistrates’ Association welcomes the clarity that the clause will introduce for magistrates when they are sentencing youths in the court. The Youth Justice Board welcomes this clarity, which would further emphasise the principal aim of the youth justice system. Interestingly, the Nacro response, is that, in view of the principal aim of the youth justice system to prevent offending, as set out in the Crime and Disorder Act 1998, it is congruent to make this more clearly the purpose of sentencing. It is also interesting that, in December 2006, the Standing Committee for Youth Justice, said that it believed that the primary focus of the youth justice system should be the prevention and reduction of offending for those who are already in trouble. A number of organisations have commented in general in support of the way in which Clause 9 is constructed.

Members of the Committee have again referred to Article 3 of the UN Convention on the Rights of the Child and the need to ensure that in all actions undertaken in a court of law the best interests of the child are a primary consideration. The Government believe that, while of course that is the position, it should not be “the” primary consideration. I realise that there is a bit of problem of semantics between “a primary” and “the primary”. The noble Earl knows what I mean, even if he thinks that it is an incorrect use of English.

If we have got any sense, we cannot put into law something that is not crystal clear. All that does is give my learned friends larger pay cheques, and we surely do not need to do that.

We certainly do not want to do that if it will drain my legal aid budget.

I accept that clarity is very important, and we hope that the clause provides clarity. In the first instance, when sentencing a young offender, the court should have regard to and the primary consideration should be the prevention of reoffending. We have a justice system that exists to tackle crime and, at its heart, needs to address offending or reoffending behaviour. Of course, it is the duty of the court to take into account the needs and interests of victims and the wider community, as well as those of the offender. We remain convinced that work to prevent offending must be in the young person’s best interests. A young person’s welfare must be considered in the sentencing process, which is why the courts are required to have regard to the welfare of the young offender. The courts are required to do that at present, and they will continue to do that.

Much of the primary responsibility for the welfare of young people lies with the youth offending teams and service providers who have day-to-day responsibility for the child. In practice, it should be the responsibility of the youth offending teams to provide the court with the welfare background as part of the information provided in the pre-sentence report required before a community sentence may be made. The pre-sentence report is a key to effective working of the youth rehabilitation order, as it will act as a source document for the court’s decision-making process. The pre-sentence report needs to include all relevant details on the young person and put forward recommendations to the court on appropriate interventions.

On the youth rehabilitation order, the recommendations should cover which requirements are appropriate and what their duration should be on the basis of an assessment of the individual young person’s needs. While I accept that it is fundamental that a criminal court, when sentencing a child or a young person, should have regard, as one of the primary considerations, to the welfare of the child, we cannot accept that that should override other considerations that a criminal court must take into account.

I know that the noble Lord, Lord Kingsland, asked me about Clause 9. The advice that I have received is that new Section 142A(3)(b) in Clause 9 is not subordinate to the purpose of sentencing, the principal aim of which is to prevent offending. Having considered what the noble Lord said about our international treaties, we said to the JCHR—we believe that we were right—that we thought that we were compliant with our international obligations.

The Minister will forgive me for interrupting. In family cases and in others, the phrase “best interests” has very frequently been equated with welfare. It is a primary consideration under Article 3. Does the Minister really think that new Section 142A(3)(b), which refers to having,

“regard to the welfare of the offender”,

is the equivalent of a primary consideration? My interpretation is that it is coming a long way down the scale. I accept what the noble Earl, Lord Onslow, says, but it is certainly not up the scale, as a primary consideration would be.

There seems to be a considerable difference of opinion between the Minister’s understanding of Clause 9 and what is interpreted by many of us on different Benches. Does he intend to produce a code of practice that will give some substance to what he is saying, in terms of the interpretation of Clause 9 for sentences? If so, would it be possible to see a draft of such a document before Report?

There would be the intention of producing sentencing council guidelines, which would not be ready before Report, but I will certainly see whether I can provide further information to noble Lords in this area.

I take seriously the comments of the noble and learned Baroness, Lady Butler-Sloss. The advice I have received is that the construction of the clause meets the requirement. I will certainly have a look at it between now and Report to double check that that is so. I have to take her very seriously—

The noble Lord is being interrupted inordinately, but he did make a point about my construction of the convention. I disagree with the advice that the noble Lord has received about the CRC. The only way in which Clause 9 can possibly conform with the CRC is if new Section 142A(2) reads, “The court must have regard to the principle aims of the youth justice system, which are to prevent offending or re-offending by persons under 18, and have regard to the welfare of the offender”.

I understand what the noble Lord is getting at. It will be helpful if I reflect on this in the light of those comments and come back. The clear intent is that the welfare of the child, as enacted in the 1933 Act, has the effect that I have stated. Clearly, it would be helpful if I had a look at that.

Could the Minister say when, as a matter of course, as the YOTs are preparing these reports, a clinical psychologist is involved? That goes back to the earlier debate about the maturity of the child. That is the key professional, as I understand, who is turned to, to decide what level of development a child has reached. YOTs are well respected, but there is some concern that they do not have the welfare emphasis that they might have. It is welcome that the Minister is going to consider whether the welfare aspect of this could be reinforced in some way.

I did not say that. I said that, in view of the comments of the noble Lord, Lord Kingsland, and the noble and learned Baroness, Lady Butler-Sloss, I will double check to make sure that the clause meets the requirements on the Government in relation to the consideration that needs to be given to the welfare of the child, which is a primary consideration but not the primary consideration.

On the question of the availability of different professionals to youth offending teams, I cannot say that every YOT will always have access to a particular professional. If the noble Lord, Lord Ramsbotham, had intervened, he might have asked for a speech and language therapist as well. It is clear that it is right that YOTs should have access to proper advice, guidance and help. That is one of the aims that we seek to achieve.

I hear what the Minister says, and I am grateful for his response. I do not know if the noble and learned Baroness, Lady Butler-Sloss, would agree with me, but, if we are dealing with vulnerable children and are looking for good professionals, I would be grateful to hear a little bit more about the involvement of clinical psychologists in giving advice to the teams. The reports are clearly crucial to getting the right response. If there is not sufficient availability of this, it would concern me.

There was a second issue that I raised about the conformity of Clause 9 with our international obligations, and that related to new Section 142A (4), on the purposes of sentencing. As I recall it, I asked the noble Lord how those four categories differed from the purposes of adult sentencing. On the face of it, there is nothing here that is specific to children, despite the fact that we have accepted in a number of international conventions that the principles of sentencing for children are quite distinct from those for sentencing for adults. I would be most grateful if the Minister could respond on that matter.

Surely the response is in new Section 142A(3), on the regard that the court must have to the welfare of the offender. We have debated exactly what that means, but surely that is the distinction: it is contained there, and therefore it is a consideration?

Those are the principles, but these are the purposes of sentencing. It is quite a distinct matter from the previous clauses. What I am interested in is how these purposes differ from those for adult sentences.

The point that I am making is that the court must have regard to a number of matters. It has to have regard primarily to the aims of the youth justice system, so that that in itself is surely a distinguishing mark. Secondly, it must have regard to the purposes of sentencing mentioned in new Section 142A(4) and Section 44 of the Children and Young People Act. That is surely what gives it its distinction.

I am most grateful to all noble Lords who have taken part in this interesting and crucial debate.

I underline the fact that we are dealing with offenders under 18. I became a recorder in 1974. That is probably the lowest rung on the ladder of judicial preferment. When, in 2002, I received a letter from a civil servant in the Lord Chancellor’s Department, I was still standing on the same rung. During those 28 years, I had experience of the Crown Court as a sentencer, and I had experience of the problems of the people who were brought before the court—

Is the noble Lord just about to withdraw his amendment? If so, there is one thing that I would like to say before he does. A look of despair crosses the face of the noble Lord, for which I apologise.

A suggestion was put by my noble friend Lord Kingsland that the new first clause proposed by the noble Baroness, Lady Stern, should be amalgamated with this. I would just like to say that I think that is a totally excellent idea. A team of the noble Baroness, Lady Stern, the noble Lord, Lord Thomas of Gresford, the noble and learned Baroness, Lady Butler-Sloss, and I could produce a proper agreed amendment which we could be properly beastly over on Report, if the Government do not listen to what we are saying.

I am sorry to have interrupted the noble Lord, and I hope that that cloud can now vanish from his face.

I am most grateful to the noble Earl—at least we did not have Genghis Khan this time. The suggestion that we get together and consider whether the amendments can constructively form a new clause to put in place of the present Clause 9 is one that I shall follow.

I was reminiscing about my experiences as a recorder when the noble Earl intervened. I wanted to give noble Lords a feeling for the mindset of those who deal with offenders when they are young. The first object is to get that person to take a different course. One learns of the familial cycles—father, son, grandfather—where members of the same family constantly turn up in court. In my time, I have certainly dealt with two generations, if not three. Generally speaking, such a young person under the age of 18 has an ill developed or malformed sense of right and wrong. The Minister and others have said that most people know what is right and wrong. That is not true. In some deprived families, there is a moral climate in which dishonesty is a way of life. Getting the better of other people is what life is about, and violence is accepted. That applies not just to the members of the family itself but to the peers of the young person, the gangs that roam around and, for example, steal mobile phones.

What one finds with people under 18 is a lack of example from people who can show them that there is a better way of life. In sentencing young people, the first thought that comes into one’s mind is whether there is any way of turning this person from a life of crime. When a convicted offender comes before you, the barrister who is representing him will talk about what a terrible time he had as a child and will go into all those issues. By the time that person is 19, 20 or 21 and has been through all the processes—probation, what used to be borstal, youth offending or whatever—you have to say, “Tough. Society cannot deal with you in any other way except to lock you up, if the offence is serious enough, for its own protection. You have had your chances; you have not changed your ways; all sorts of interventions have been tried in an attempt to deal with you. We are sorry that you had a bad time as a child, but you have to take responsibility and face up to the consequences and disagreeable sanctions”. I think that that was the definition of punishment for which the noble Lord, Lord Hunt, was striving.

However, there is a stage before that. In dealing with someone who is under 18, we are hoping that we can reform and rehabilitate them and set the boundaries to which the noble and learned Baroness, Lady Butler-Sloss, referred. It is not punishment that will set boundaries for young people; it is encouragement, the teaching of values, the providing of leadership and of role models, so that the young person appreciates that they do not have to engage in crime. They do not have to follow their family or their peers.

For those reasons, I totally agree with the noble Lord, Lord Kingsland, when he poses the question to which we have really had no answer: how do the purposes set out in Clause 9 differ from the way in which the purposes of sentencing are applied to adults? There should be a difference. There is a possibility of reform and rehabilitation. It is not enough to say that everybody understands punishment and that society wreaks vengeance on those who offend against its tenets. The public have to be protected, but we know that, for young people, detention and prison are failing; punishment in that sense is not working. It is not working because detention and imprisonment—we have said this so many times, but it is worth saying it at every opportunity—do not provide the facilities, because of overcrowding, that teach people who are locked up about values and give them the leadership that they require. The noble and learned Baroness, Lady Butler-Sloss, also took issue, to a much lesser extent, with the proposal that the sentencing court should ascertain the wishes and feelings of the child. For many years, I have referred in the House to the children’s panels in Scotland as a much more constructive way of dealing with young people. You are involving, in a far less formal way, the children who are at risk and their parents and are trying to work out, with them, what their problems are and how they can best be addressed. The way in which we approach juvenile crime in this country, by a lower-level system of courts, is not good enough. We need much more of the children’s panel system which is that much more successful in Scotland. I say that not because of my Scottish connections or because my noble friend Lady Linklater is sitting next to me. It is because the statistics show that the system works better by preventing reoffending to a greater degree and permitting children to break out of that cycle.

The noble Lord, Lord Hunt, says that we have to have punishment because people understand the concept. What I am always looking for from a Government of any hue is leadership to educate the public that there is a better way of dealing with young people than locking them up. We should not be paying heed to the cries of the popular press; we should be educating, not following, public opinion in this most important area.

Does the noble Lord accept that this is not about locking people up? Although we have moved on to Part 2, most of our debate has been about Part 1 and youth rehabilitation orders, which are designed to reinforce the point that custody is a last resort and that we need to put much greater emphasis on—dare I say it?—rigorous community sentences.