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Lords Chamber

Volume 700: debated on Wednesday 26 March 2008

House of Lords

Wednesday, 26 March 2008.

The House met at three o'clock: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Ripon and Leeds.


asked Her Majesty’s Government:

What assurances they will give that Berwick-upon-Tweed will remain in England.

My Lords, I am delighted to hear that and I thank the Minister for his very full reply. Would he be so good as to get his department to send an edict to members of the Scottish Executive to make certain that they try not to meddle in English affairs?

My Lords, I am sure that the noble Lord is well able to communicate with members of the Scottish Executive. My job is to say that the Government have no plans at all to take any of this forward. We believe strongly in the union and wish to do everything that we can to support, encourage and develop it.

My Lords, I am pleased to hear my noble friend’s Answer. I assume that the Government have ignored the poll that was recently held in Berwick that, unsurprisingly, found that people there wanted to be Scottish. People in London, Manchester and elsewhere in England would also like to be Scottish if they could have the same benefits. Will my noble friend clarify the Government’s position? Last week in the House of Commons, the Secretary of State for Scotland categorically denied that the Government had any plans to review a particular formula that is a cause of the problem, whereas today the Daily Telegraph, which has got it wrong previously, reported equally categorically that the Prime Minister has agreed that the new Scottish commission should review the formula. What is the Government’s position?

My Lords, is my noble friend referring to the Barnett formula? I disagree with most of the propositions that he has put to your Lordships’ House today. We have made it clear that there are no current plans to change the formula. As we have said, the Chancellor has been asked to produce a factual paper on the funding mechanism to inform the debate. The commission that was announced yesterday has the following terms of reference:

“To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to better serve the people of Scotland, that would improve the financial accountability of the Scottish Parliament and that would continue to secure the position of Scotland within the United Kingdom”.

My Lords, I declare an interest as a Berwick borough councillor and as the wife of the MP for Berwick-upon-Tweed. In that capacity, I have welcomed the publicity for Berwick; many people in this Chamber will have seen beautiful Berwick on their TV screens. However, does the Minister realise that, being so close to the Scottish border, Berwick residents are only too aware of the higher spending per capita on public services across it? They ask why we cannot have a better and fairer settlement in north-east Northumberland to pay for our public services. We have the next-to-lowest average wage in Britain. Will he help me to answer those questions from people who live in Berwick-upon-Tweed?

My Lords, I acknowledge the beauty of the borough of Berwick-upon-Tweed. The noble Baroness may know that the right honourable Member for Berwick-upon-Tweed has already eloquently explained the significant practical difficulties inherent in any change, not least the differences in legal systems, which would need to be carefully thought through in the light of this rather strange poll. She will also know that polls undertaken by local newspapers came to very different conclusions. She referred to the funding situation. While expenditure in Scotland in some areas can be seen to be greater than expenditure elsewhere, similar differences exist between the regions within England. Overall, the Barnett formula and the settlement that arises from it have served the United Kingdom well. We should stick with it.

My Lords, living some 15 miles south of Berwick-upon-Tweed and being a council tax payer at present to Berwick-upon-Tweed Borough Council, may I ask the Minister whether he is aware that the poll to which the noble Lord, Lord Barnett, referred concluded that 60 per cent of people living in Berwick-upon-Tweed would prefer Scottish funding—for instance, for the care of the elderly—but that 70 per cent wanted not to be part of Scotland and to remain part of Northumberland? In the interest of the future of this important English town, will the Government now embark on the long-awaited programme of dualling the A1 between Newcastle and Berwick-upon-Tweed?

My Lords, I am sure that we will give every consideration to the noble Lord’s request to dual the road that he mentioned. He is right: the poll that has been referred to contained very much a leading question, which is why the polls in the local newspapers have as much relevance.

My Lords, I live in Carlisle, north of Hadrian’s Wall but very firmly in England. What can the Government do to make it clear that they will resolve the West Lothian question so that all of us who live in England feel that we benefit from remaining part of the union, which we on this side of the House all want to remain part of?

My Lords, we will not do that, as various representatives of the party opposite have suggested, by moving to the ludicrous position of English votes for English MPs, which would be sure to be the start of breaking up the union. We are not going down that route.

My Lords, my noble friend has rightly expressed his support for the development and encouragement of the union, but does he believe that it is conducive to that approach to allow English citizens to have fewer benefits than Scottish or Welsh citizens?

My Lords, it is not as simple as that. Of course you can refer to certain provisions of services, which may seem more advantageous in one country or another. That is the whole beauty and benefit of the devolution settlement. Just as my noble friend can refer to, for instance, areas of higher expenditure in Wales in certain services, so there are examples of higher expenditure in England in other services. One has to look at the balanced picture.

My Lords, I am very sorry, but we are in the ninth minute, which means that other people may not be able to get in their Questions. I know that the noble and learned Lord, Lord Lloyd, has wanted to get in. If the House really wants it, we will allow him to, but it will mean that we have fewer minutes for three important Questions.

Asylum and Immigration: Detainees

asked Her Majesty’s Government:

Whether they will provide an independent review system for immigration and asylum detainees who have been held for three months or more.

My Lords, we have no plans to introduce an independent review system. The detention of individuals under Immigration Act powers is kept under regular review at successively higher levels in the Border and Immigration Agency. We have no interest in detaining individuals for longer than is strictly necessary or in prolonging their detention unduly.

My Lords, I thank the Minister for his reply, which I have heard a good many times before. In view of the present situation, will the Government abolish the detained fast track? Will they ensure that legal advice is available to all detainees? Will they undertake not to detain former convicted criminals with innocent asylum seekers and others?

My Lords, as the noble Lord will be aware, people in detention centres have access to legal advice for which they do not have to pay. I will take away the thought whether those who have committed crimes and are then being removed from the country should not be kept in the same immigration centres as other asylum seekers. In practical terms it would be extremely difficult, but I will see whether there is any possibility of it.

My Lords, will the Minister undertake not to return cancer victims to die in their countries of origin, which happened recently and was a disgrace to this country?

My Lords, I do not think I can give such a commitment. I have visited Tinsley House. It is worth remembering that all these cases are individual tragedies because, for a number of reasons, these people are desperate to be in this country. As the noble Lord, Lord Hylton, said, some of them have committed crimes here and are on their way out. I am afraid that we cannot offer healthcare to individuals with no legal right to remain in the United Kingdom. That is clearly covered in EU and our own law. However, we make absolutely certain that they are able to get treatment back in their own country. It might not be as good as it is here, but we cannot open our doors and say that anyone who comes here and says that he cannot get the same treatment in his own country should be allowed to stay. That is not a sensible policy.

My Lords, my noble friend will be aware of the concern that has been expressed about the detention of children. How many children are now detained under these powers?

My Lords, my noble friend raises an important point. We do not put any children who are on their own into detention centres. The only ones who ever go there are with families, and normally it is just before the point of removal. As of today, 19 families with children, and 30 children in total, are detained.

My Lords, at the end of December 2007, 15 children had been in detention for more than a month. Does Mr Byrne spend half an hour on each of them and, if so, can we really be led to believe that he has seven and a half hours spare in his programme to review the detention of these children? With regard to the adults, has the noble Lord read the report of the chief inspector on Dover IRC, where 30 people have been detained for more than six months and serious errors have been made in presenting their cases to the court? Does he really think that the process of internal authorisation is satisfactory?

My Lords, the noble Lord raises a number of points. As I say, we would prefer not to detain families with children at all. Indeed, we are conducting a pilot to see whether families with children might be placed in a hostel down in Ashford, Kent. I hope that will work. As I say, each case is an individual tragedy. These people do not want to leave the country. I visited Tinsley House and was impressed by the quality of our people—the caseworkers and the people looking after the detainees—who are trying to expedite these matters with the fastest possible speed to maintain a policy that is correct for this country.

My Lords, it has been said that the Prime Minister and the President of France are likely to announce an agreement to provide joint charter flights for illegal immigrants back to their home countries. How might that be arranged?

My Lords, I am not aware of that proposal. If I may, I will take it away and respond to the noble Baroness in writing.

My Lords, will the Minister review the system to see whether 22,000 Gurkhas, who have demonstrated that they are our country’s bravest and most faithful friends, should be allowed to remain here and claim the right of British citizenship?

My Lords, I have huge admiration for the Gurkhas. I first served alongside them some 35 years ago, and I fought alongside them in the Falklands some 25 years ago. I am sure that we will look at this issue, and I hope that it might come to a conclusion, but I cannot make any promises.

My Lords, further to the question of the noble Earl, Lord Onslow, with whom I by no means always agree, surely a stage of illness from cancer comes when the Government would not send people back.

My Lords, all I can say is what I said before. This was looked at very closely, and these things are looked at sympathetically. A very high level of assurance has to be reached in both EU law and our own law, and we are not going against any ECHR regulations or anything like that. We have to be very careful. We have to have a policy and, although sometimes it will look difficult for individual cases, it makes sense; we need a policy that makes sense and stands up. To let individual cases go would allow the rest to go by default.

My Lords, I am being increasingly made aware of the deep psychological needs of many asylum seekers, both in detention and in the community. What special provision can the Government make to bring to a conclusion cases where asylum seekers have serious psychological problems?

My Lords, the right reverend Prelate raises an important issue. Such problems influence the outcome of individual consideration of the claim and the handling of the claim at times. We have made sure that the guidance and operation instructions make clear that a history of mental and physical illness is a factor that must be taken into account when considering whether detention is appropriate. Each case is considered on its own merits, but we cannot absolutely rule out detention.

Energy: Efficiency

asked Her Majesty’s Government:

Why they propose to repeal the Home Energy Conservation Act 1995, which requires local authorities to report annually on progress towards improving energy efficiency in all homes in their area by 30 per cent over 15 years.

My Lords, a public consultation on a review of the Home Energy Conservation Act, as implemented in England, ended in January. The review had concluded that, although the Act had raised the profile of energy efficiency, success had been inconsistent. Four options for the future of the legislation were identified, including repeal. Officials are currently analysing the consultation responses, and a summary will be published as soon as possible. Only once that is complete will the Government be in a position to decide on the next steps.

My Lords, I am grateful to my noble friend for that Answer. Does he agree that the inconsistency in those responses is due in part to Defra’s not following up with local authorities their statutory obligation to employ someone responsible for energy efficiency and to report annually? Does he agree that when one council—I believe it is Southend-on-Sea—has not reported in all the 11 years that the Act has been in force, it is due to a problem of enforcement by Defra, rather than having to repeal this very important Act?

My Lords, the easy thing to do these days is to blame Defra for things, and I am going to plead not guilty on this one. The legislation had quite a narrow remit but that—as at least one Member of this House will testify—is the only way to get a Private Member’s Bill through the other place, by keeping it fairly narrow. Over a period of time, however, other legislation has been passed and other action taken to involve local government in energy efficiency programmes. That is why it was right to review this legislation.

My Lords, the programme is none the less way behind its target of a 30 per cent improvement in home energy efficiency in the 15 years leading up to 2010; the figure currently stands at 20 per cent. What measures has the Minister in mind to put the programme back on track? I regret to ask whether it is another casualty of Defra’s budget crisis.

Not guilty, my Lords—honestly. This is a purely local authority matter. Local authorities employ the people to do this. It was their responsibility to check the energy efficiency of all domestic properties within the whole of the authority and not just the properties they owned. Since then, we have had Warm Front and the other energy efficiency programmes which have come along in the past 15 years. Notwithstanding the fact that this House is currently considering the Climate Change Bill, which will involve local authorities in other issues, that legislation had no standard methodology so that one authority could not be compared with another. Nothing was written into that legislation on how to do the calculations, and it was right to review it. We have not made a decision; the responses are being analysed.

My Lords, the results of the pilot home information packs have now been published, and they show that less than a third of households intend to implement even one of the energy-saving measures recommended in the packs. What will the Government do to ensure that these rather expensive documents provide some practical value for householders?

My Lords, I have no intention of answering that question. As the Minister who introduced the home information packs legislation in this House—I blew hot and cold as it went through this House—I am keeping my mouth shut on that one. Naturally, however, I will refer the question to the Department for Communities and Local Government.

My Lords, the 1995 Act none the less required annual reports and they were not made on a massive scale. If it is not the Government’s job to see that local authorities keep to the law, whose job is it?

My Lords, it is a matter for local authorities and it is their professional duty. I do not know whether it was specific. The reporting requirements were considered onerous, but removing them would not prevent the need for local authorities to have a strategy. That is one of the options in the current review. It has probably been overtaken; I do not know. It may be that the Act will be retained.

My Lords, I declare an interest as the sponsor of the said Act when I was in another place. Does the Minister recognise that there was a problem with reporting because the Government did not have a standard reporting method? If they had had one, reporting would have been much easier for local authorities. Admittedly, computers and so on have now improved and the situation is probably better. Does the Minister also recognise that the Act spawned HECA officers, the champions in their local authorities for this area of energy efficiency? They have produced tremendous results since the Act came into operation, often despite lack of support from government. I hope that we do not lose them. They are an important part of what the Act has achieved.

My Lords, I pay tribute to the noble Baroness. This was not the most popular issue of the day in 1995, but time has caught up with it and it is now a central policy plank for all the parties. The issue is not HECA officers being made redundant but other matters. As I say, there are other programmes now—the energy efficient, the carbon reduction programme, the Warm Front. There is a huge range of programmes on the energy efficiency of dwellings and other buildings. Those were not remotely on the agenda in 1995.

My Lords, further to that answer, while I accept that new systems and projects have come into being, can the Minister give us any information on why there was no reporting before they came into being? My understanding is that quite a few of those are recent initiatives.

My Lords, there was no reporting because of a failure of local government. That would be the answer to that.

Royal Navy: Aircraft Carriers

asked Her Majesty’s Government:

When they expect to sign the main contract for new aircraft carriers.

My Lords, we will sign the main manufacture contract for the aircraft carriers when we have achieved the best alignment of planned annual expenditure, work schedule and commercial arrangements. In the interim, we continue to place supporting contracts such as those placed earlier this month for more than £70 million worth of material and equipment to maintain the in-service dates which we have previously announced.

My Lords, it has been 10 long years since SDR, so what is still holding up the final signature? There will be severe industrial consequences if the decision is not made very soon. Given the completely unacceptable defence capability gap that will arise, will it be possible to keep HMS “Ark Royal” and HMS “Illustrious” in service until the new carriers arrive?

My Lords, the delay is not 10 years; the Government announced the programme on 25 July last year, as part of the Comprehensive Spending Review. We are currently trying to ensure that we get the right profile of spending while maintaining the in-service date. It is worth paying some attention to try to get that right and to work through the incentivised contract that we have on this important project. On our existing capabilities, the noble Lord will be aware that HMS “Illustrious” had a major refit recently and is due to be in service until at least 2015. Under current plans, HMS “Ark Royal” will come out of service in 2012. Those dates are obviously kept under review.

My Lords, can the Minister please confirm that the in-service dates are still to be 2014 and 2016—although it is difficult to see how they will be held to if the contract continues to be delayed? Has the training pipeline to deliver the right, qualified crew by those in-service dates been held up as a result of the contract delay? It is very important that that is maintained, especially for specialised aircrew.

My Lords, the noble and gallant Lord makes a significant point about training; we give that direct attention—we need to ensure that everything works and is going in the right direction. The Secretary of State for Defence in the other place recently made it clear that there had been no change in in-service dates.

My Lords, I am sure that the whole House will welcome the prospect of greater military co-operation between this country and France. Will the Prime Minister be raising with President Sarkozy the prospect of greater French involvement in the carrier programme?

My Lords, the French have been involved in this project for a significant period. They have already paid £70 million towards the development costs of the project. French people are working in Abbey Wood as part of the integrated project team. If the French decide to go ahead with their own carrier, they will pay another £45 million into the project. Our understanding is that they are not yet in a position to announce their intentions. It may well be that this comes up in discussions because defence is high on the agenda at this summit but I should be very surprised if we got an announcement from the French president while he is here in Britain about his intentions towards an aircraft carrier.

My Lords, what is the position of the aircraft to be shipped on the new carriers? That is an American programme; is it on track?

My Lords, in terms of capabilities, the intention is to use the Joint Strike Fighter—we are in a joint project with the Americans on that. It has never been the case that that would be ready for the in-service dates that we have announced. The Harrier will be used in the interim; that has virtually always been the case.

My Lords, can the Minister confirm that, should the two aircraft carriers be built, they are due to be put together at the bottom of the Prime Minister’s garden?

My Lords, I am not sure that that will actually be done at the bottom of the Prime Minister’s garden but the construction work will involve a very large number of people and provide a very large number of British jobs from the south coast to the Clyde and Rosyth, which is very close to the Prime Minister’s constituency.

My Lords, my noble friend Lord Astor of Hever is usually pretty careful in what he says. He suggested that the programme had started 10 years ago; the noble Baroness said that it started last year. Can she please do something that is satisfactory to all to reconcile the two statements?

My Lords, people in the MoD—some of whom are not far from me at the moment—have been pressing for this programme for a very long time, but the announcement that it would go ahead was made on 25 July last year in another place.

My Lords, did I understand the Minister to say that the Joint Strike Fighter, which is an essential element of this new carrier force, will not be available in 2014 and 2016, when the two ships are due to be available? Bearing in mind that the Sea Harrier was withdrawn in 2006, that seems an unconscionably long time to have no aircraft at sea.

My Lords, as I understand it, it has always been the case that there would be a transition from the Sea Harrier to the Joint Strike Fighter and that that would be a carefully managed programme. I do not think that there has been any significant change in that intention. As I understand it, that was the case from the moment that the project was announced last July.

My Lords, perhaps I may trespass on the time of the House again. In earlier answers, the noble Baroness has assured me that there will be no interval in which there is no fixed-wing cover for fleets far at sea. Can she reconcile that with what she has just said? Will there be an overlap or not?

My Lords, as I said to the House some moments ago, we will ensure that the transition from the Sea Harrier to the Joint Strike Fighter is carefully managed. As I understand it, that has been the plan since the start of the JSF programme.

My Lords, some very worrying reports are coming out of the United States on weight problems in relation to the JSF programme—particularly the STOVL version, which is due to go on carriers. Are Her Majesty’s Government giving some attention to a fallback position? It seems rather idiotic that there are reports of converting the Eurofighter when there is a perfectly decent French aircraft built to fly off carriers that might be viable for this purpose.

My Lords, I know that there are those who think that a marinised Typhoon would be a suitable alternative, but our judgment remains that the JSF is still the optimum solution to this country’s requirements.

Business of the House: Standing Order 41

My Lords, I beg to move the Motion standing in my name on the Order Paper. In doing so, I wish the Lord Speaker a very happy birthday.

Hear, hear.

Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with tomorrow to allow the Motion standing in the name of Baroness Andrews to be taken before the Motion standing in the name of Lord Harries of Pentregarth.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Crown Agents Holding and Realisation Board (Prescribed Day) Order 2008

My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lady Crawley.

Moved, That the draft order laid before the House on 4 February be approved. 10th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.—(Baroness Thornton.)

On Question, Motion agreed to.

Proceeds of Crime Act 2002 (Investigations in England, Wales and Northern Ireland, Code of Practice) Order 2008

Proceeds of Crime Act 2002 (Cash Searches, Code of Practice) Order 2008

Serious Crime Act 2007 (Amendment of the Proceeds of Crime Act 2002) Order 2008

Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2008

My Lords, I beg to move the four Motions standing in my name on the Order Paper.

Moved, That the draft orders laid before the House on 19, 20 and 27 February be approved. 12th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.—(Lord West of Spithead.)

On Question, Motions agreed to.

Rail Vehicle Accessibility (B2007 Vehicles) Exemption Order 2008

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 31 January be approved. 10th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 18 February be approved. 11th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.—(Baroness Thornton.)

On Question, Motion agreed to.

Companies Act 2006 (Consequential Amendments etc.) Order 2008

Companies Act 2006 (Consequential Amendments) (Taxes and National Insurance) Order 2008

My Lords, with the leave of the House, I beg to move the two Motions standing on the Order Paper in the name of my noble friend Lady Vadera.

Moved. That the draft orders laid before the House on 20 and 27 February be approved. 12th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.—(Lord Bach.)

On Question, Motions agreed to.

Pension Protection Fund (Pension Compensation Cap) Order 2008

Occupational Pension Schemes (Levies) (Amendment) Regulations 2008

Occupational Pension Schemes (Levy Ceiling) Order 2008

My Lords, with the leave of the House, I beg to move the three Motions on the Order Paper standing in the name of my noble friend Lord McKenzie of Luton.

Moved, That the draft orders and regulations laid before the House on 7 and 27 February be approved. 11th and 12th reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.—(Baroness Thornton.)

On Question, Motions agreed to.

Offender Management Act 2007 (Consequential Amendments) Order 2008

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 6 February be approved. 10th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008

My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lord Adonis.

Moved, That the draft regulations laid before the House on 5 March be approved. 13th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.—(Baroness Royall of Blaisdon.)

On Question, Motion agreed to.

My Lords, I beg to move that the House do adjourn during pleasure until 5.30 pm.

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

[The Sitting was suspended from 3.40 to 5.30 pm.]

Criminal Justice and Immigration Bill

Report received.

Clause 1 [Youth rehabilitation orders]:

1: Clause 1, page 2, line 14, after “Schedule),” insert—

“( ) a reparation requirement (see paragraph 24A of that Schedule),”

The noble Lord said: My Lords, this amendment is in identical terms to the one tabled in Committee on 5 February and debated between cols. 978 and 981. I have no intention of repeating my opening remarks, but I shall summarise them. The youth rehabilitation order embraces a number of previous low, medium and high-effect orders in a single unit. I expressed my bewilderment at the Government’s decision to keep reparation orders out of the hierarchy and, in reply, the noble Lord, Lord Bach, drew my attention to paragraph 8(2) of Schedule 1, which provides that as part of an activity requirement a specified activity,

“may consist of … an activity whose purpose is that of reparation, such as an activity involving contact between an offender and persons affected”.

I accept that, within the framework of a youth rehabilitation order, it is possible, inter alia, to require reparation. However, I say with great respect to the Minister that that is not the point of my amendment. The point of my amendment is to ensure that all possible dispositions open to the court should be within the framework of the youth rehabilitation order; yet the legislation clearly provides that a reparation order can be made in its own right. I think that the noble Lord, Lord Bach, justified that by saying that the reparation order was a low-level sentence and that the courts ought to have the option of making a low-level order without engaging the mechanisms of a youth rehabilitation order.

If that is so for a reparation order, surely it should also be so for other low-level orders, such as a limited attendance centre requirement or a limited activity requirement. What is it about reparation orders that distinguishes them from other low-level orders and entitles them to have a classification that is quite distinct from that contained in a youth rehabilitation order? I am a great supporter of the youth rehabilitation order and the amendment is in no way intended to undermine that excellent initiative. However, I believe that, having made that initiative, the Government should have the courage to include all the dispositions within its framework. I beg to move.

My Lords, we return to the issue of reparation and this amendment, which was debated in Committee. I note that the noble Lord was “dismayed” by the response that I gave during the debate on the amendment. I am a little confused about what could have prompted such a strong reaction because I believe that our position is straightforward. This amendment is not needed. As I attempted to make clear last time and as was made clear by my honourable friend in Committee in the Commons, provision is already made for reparation to be part of a youth rehabilitation order. Apart from that, reparation is also available as a separate order where a youth rehabilitation order is not imposed.

The value of reparation within the youth justice system is well known; indeed, it was alluded to in Committee. We all agree that young people who have offended should accept responsibility for their actions. As part of that, the offender may be required as part of the activity requirement of the youth rehabilitation order to do something practical—ideally, something that will benefit the victim or the community as a whole. Examples were given of things that offenders could be required to do, such as graffiti cleaning, repairing community facilities or conservation work.

As the noble Lord said in moving his amendment, we have made provision for reparation in the requirements of the youth rehabilitation order. Paragraph 8(2)(b) of Schedule 1 to the Bill—at page 115 of Volume II—provides that an activity requirement,

“may consist of or include an activity whose purpose is that of reparation”.

If what is needed is for the young offender to take part in a specified activity such as attendance on a Prince’s Trust programme and the court would also like to include a reparation element, the court can achieve that by imposing a youth rehabilitation order with an activity requirement. Under paragraph 8(2) of Schedule 1, that may include an activity whose purpose is reparation. The court may also use the activity requirement solely for the purpose of reparation while including another requirement, such as a curfew order, in the youth rehabilitation order. The amendment would achieve nothing more than that.

Reparation can also form part of other requirements attached to the youth rehabilitation order. First, an activity requirement will always form part of the youth rehabilitation order when it is linked with intensive supervision and surveillance. It could also form part of a programme requirement or, in the broader sense, take the form of an unpaid work requirement. In addition, I repeat that we propose to retain the reparation order as a separate sentence beneath the youth rehabilitation order. That will provide the courts with flexibility so that they do not have to resort to a youth rehabilitation order simply to ensure that reparation is made. The reparation order represents a proportionate response to a low-level offence—of minor criminal damage, for example—where the more serious sentence of a youth rehabilitation order would be excessive. That ensures that there is still a hierarchy of community disposals and retains the emphasis for sentencers that the youth rehabilitation order is the highest community sentence. During oral evidence to the Commons committee, both the Youth Justice Board and the Children’s Society strongly supported retaining the reparation order as a separate sentence.

As drafted, the new reparation requirement in the amendments would duplicate the provisions for reparation already built into the youth rehabilitation order. They are not necessary and do not go as far as the provisions already in the Bill. It was never intended that all court dispositions should come within the YRO. We are combining all the previous youth community orders, such as the supervision order and the activity order, into one community sentence. Other dispositions remain outside the YRO, such as referral orders, financial compensation orders and fines. Our position is logical and maintains reparative activity as a key theme within the youth justice system. For that reason, we invite the noble Lord to withdraw his amendment.

My Lords, I am sorry that my noble friend Lady Linklater is unable to be with us, which is, as the House will know, for health reasons. Will rejecting the amendment mean that the position of reparation orders in the hierarchy as the Minister has explained it has less bite in relation to funding? One of the difficulties of supervising reparation orders is that there is just not the funding for supervisors. In a scheme fairly local to me, the young offenders were engaged in almost exactly the sort of activity that the Minister described: cleaning up a wall. The person who had initiated the activity ended up having to do some of the basic things himself, such as providing lunch. Will the Minister comment on the funding of reparation orders? Is he satisfied that there is sufficient funding in place for them to be a practical provision?

My Lords, as I understand it—I have no specific advice on the important point that the noble Baroness raises—there are, in general, no funding problems with such orders. If the noble Baroness does not object, however, I will take away her question and send her a letter, with a copy to the Library and any other noble Lord who is interested.

My Lords, I thank the Minister for his full reply. He has striven hard to convince me of the error of my ways and I at least appreciate the effort that he has put into it. However, I remain totally confused as to why the Government should have picked out one low-level requirement—reparation —rather than a number of others, such as, as I said, limited attendance centre requirements or limited activity requirements, and given it a status on its own, independently of the YRO.

I had understood the Government to be marketing the YRO as a new beginning: a generic order that effectively embraced all the disparate orders that applied to young people in one provision, where the justices and the judges could specifically select a menu for the offender before them. I accept that, because of paragraph 8(2) of Schedule 1, one item in that menu, via the activity order, would be a reparation order. Under the YRO, you can indirectly make a reparation order. However, that reinforces my concern about why there should be, quite independently of the YRO, a separate, distinct provision for the reparation order.

I am aware that the various organisations that take an interest in this matter are not entirely of one mind about the desirability of the Government’s approach. For example, the Magistrates’ Association shares my view, but one or two other organisations take the Government’s point of view. Given this division of view among real experts in the field, I am not inclined to press the amendment to a vote. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

3: After Clause 1, insert the following new Clause—

“Custody of children: conditions to be met

(1) A court must not pass a custodial sentence unless—

(a) the offender has already been the subject of a youth rehabilitation order, or orders, which falls within section 1(3), or(b) the offence, or the combination of the offence and one or more offences associated with it, and the risks the offender poses to the public are so serious that, notwithstanding the age of the offender, a youth rehabilitation order which falls within section 1(3) cannot be justified for the offence.(2) Where the court does pass a custodial sentence it shall set out in writing its reasons for doing so, both in general and with specific reference to the individual conditions set out in section 1.”

The noble Earl said: My Lords, we are back to the custody of children. I am afraid that noble Lords will not hear from me the eloquence we heard in the Royal Gallery. My French is certainly not as good as Monsieur Sarkozy’s, and I do not have the hard neck to try to charm the Government Front Bench in the way that he charmed us. I shall just bang on in my old-fashioned way to try to persuade the Government of the error of their ways.

The point of this amendment is that we should not be sending children to prison or giving them a custodial sentence unless it is absolutely unavoidable. This amendment attempts to introduce a threshold. We went over this matter in considerable detail in Committee, and in the Committee stage in the House of Commons there was an implication that something could be done about this. The Government have used Section 152 of the Act—I cannot remember which Act it is—and say that it is the guiding body behind how sentencing should be carried out. The youth justice people think that is not good enough, the JCHR thinks it is not good enough and I do not think it is good enough. The Government must have a much better reason for objecting to this amendment than the one they introduced in Committee.

There is one flawette—if that is the right word—in that subsection (2) is, I am told, probably unnecessary for the simple reason that all courts have everything they say recorded. Subsection (2) is otiose, but if we were to agree this amendment there would be no difficulty in taking it out at Third Reading. I beg to move.

My Lords, we support this amendment, as we did in Committee. As the noble Earl, Lord Onslow, pointed out, we went into considerable detail when we discussed it there, so I shall not repeat the arguments. I note that in their letter of 19 March, the Government’s explanations for their amendments that are grouped with this amendment go some way towards raising the custody threshold, which is what we sought in Committee. They place a requirement on the court when sentencing a young offender to custody to consider whether it could pass a sentence consisting of a YRO with intensive supervision and surveillance or with intensive fostering. The key to the amendment is that it also requires the court to set out the reasons why those alternative disposals cannot be used so custody becomes the default position. We believe that there is a difference between what the Government are trying to do and our amendment in that our amendment adds greater clarity to the circumstances in which custodial sentences are to be handed down. It particularly highlights the requirement to consider not just the offence committed but also the risks to the public. That seems entirely reasonable because, as we have said at length, a child should not be locked up just to mark what he has done if he does not pose a significant risk to the public. The risk test is a more relevant test of need for the very serious step of locking up a child—in other words, sending him into custody. If the court does choose custody, the fact that it will now have to set out its reasons, not just in general but also by reference to the specific tests set out in the new clause and to its assessment of the risk, would also add a great deal of clarity. On that basis, we argue that our amendment is superior to the Government’s amendment.

My Lords, the noble Earl deserves thanks for and congratulations on having brought this matter before the House again. He need not, in his most Francophile, chivalrous moments, apologise in any way for any lack of comparative eloquence. He put his case as strongly and effectively as possible. That case is meritorious. We have been told over and over again—the matter cannot be overemphasised—that in the incarceration of children, compared to the other countries of Western Europe, we are again at the head of that unmeritorious league. We incarcerate more children than Germany, France, Holland and Norway put together. The same is true of the incarceration of young people and adults, so there is a damnable consistency, if I may say so, in our attitude to incarceration and loss of liberty in general.

That is a wider point. I concede that the Powers of Criminal Courts (Sentencing) Act 2000, to which I think that the noble Earl, was referring, and the Criminal Justice Act 2003 between them contain very considerable restrictions on the incarceration of children—and of young people, for that matter—but they are not working. That is the strength of the noble Earl's amendment. Anything that brings home to the mind of a sentencer the necessity of using incarceration —by that, I mean the loss of liberty in general—more effectively than at present will be very much to the benefit of the community.

I urge the Minister to consider that this matter deserves further consideration. After all, all that has really been asked for is that practically the same wording as is contained in many criminal statutes passed over the past 15 to 20 years in respect of adults is applied to children. The exact words of those statutes seem to have been incorporated in the amendment.

My Lords, I put my name to the amendment for the exact reason that the noble Lord, Lord Elystan-Morgan, has just given. I was very grateful for a meeting with the Minister last night in which he explained that the provision to have reasons put in writing was irrelevant, as the noble Earl, Lord Onslow, said.

In fact, of interest to me, very much following on what the noble Lord, Lord Elystan-Morgan, said, is a remark made earlier by the noble Lord, Lord Bach, in reply to the noble Baroness, Lady Miller. It concerned resources. One thing that has always concerned me, underpinning the sentences awarded to young people, is whether the resources are there to do what is in the mind of the sentencer when the sentencer decides that that is appropriate. The amendment therefore goes rather wider in its ramifications than the mere wording. In order to make the youth justice system as effective as the public deserve, there ought to be more coming together between those responsible for the sentencing, those responsible for administering the sentence and those responsible for providing the resources. There is a serious disconnect at the moment, which is undermining the ability of the youth justice system to do what is required of it.

My Lords, I, too, support the amendment. I also had the benefit of attending the very helpful meeting with the noble Lord, Lord Hunt, last night and I, too, took on board the point that it is not essential to provide for the recording of what has been going on in a juvenile court, because that is done automatically and is done anyhow in an adult court.

However, I take the points made by my noble friend Lord Elystan-Morgan, apart from the graphic opening description of the noble Earl, Lord Onslow, of why this is back on our agenda. These points are absolutely crucial. We lock up a number of youngsters rather than seek again and again to give them time to develop and to change their ways. With that very much in mind, I hope that the Minister will see that there is a point in putting this into the Bill on Report.

My Lords, will the Minister say when he replies to what extent the formula in the amendment would inexpediently fetter the discretion of a sentencing court?

My Lords, I shall add a little to what has been said in support of the amendment, which we discussed at some length in Committee. It is quite difficult to discuss custody being used as a last resort, because “last resort” is a relative term. Obviously the last resort is very different in Finland, where five boys under 18 and no girls are in custody, from the last resort here, where I think around 2,800 juveniles are currently in custody. It might be helpful if we could all agree on some idea of a last resort.

In Committee, I said that custody was probably being used as a last resort only when it was justified on the grounds of extreme seriousness and the danger of real risk or real harm being presented by the child. Subsequently, I had a very helpful letter of about 12 pages from the Minister, for which I am extremely grateful. I appreciate the hard work that went into it. However, it challenged the use that I made in Committee of the statistics that I felt established clearly that we were not using custody as a last resort. The Minister’s letter said that I was incorrect in that respect, so I felt that it would be helpful to put a little of that discussion on the record.

The Minister and some of us here disagree as to whether the children currently locked up have really committed offences that could be described as serious and dangerous. His letter tells us that the children currently in custody have been convicted of offences that could have been serious. It states:

“For instance, robbery is essentially stealing with the use or threat of force and can attract a maximum penalty of life imprisonment”.

That is so, but I understand that robbery is also the charge used for stealing a pencil case from another child in the playground, with the threat of force or some minimal force of the sort that one can see in many playgrounds at many times of the day.

Although the Minister quite rightly says that many of those currently in custody have committed offences that come under the heading of “violent”, the Standing Committee for Youth Justice says that,

“while violent offences can of course be very serious when you look at an analysis of the disposals for such offences you will discover that the majority are towards the lower end of the scale for seriousness. Almost 70% of such matters result in a reprimand or final warning”.

We still have a long way to go in ensuring that we use custody as a last resort, and I agree with what noble Lords have said before me: if this is on the statute book, courts are in a position to have no doubt that they are right to look as hard as possible for some other disposal and to try as hard as they can to keep children under 18 out of custody. I am therefore very happy to support the amendment.

My Lords, I welcome the amendment tabled by the noble Earl, Lord Onslow, which gives an opportunity to debate these important matters. As ever, he spoke eloquently and with charm. This goes to the heart of our debates about the youth custody system. Again, noble Lords have expressed their concerns about the number of young people in custody and have made comparisons with other countries. While one needs to be a little cautious about international comparisons, I have already made it clear that the Government share the aim of all noble Lords who have spoken in our debates that custody should be the last resort.

I also acknowledge the comments made by the noble Lord, Lord Ramsbotham, about the need for an integrated approach between the Youth Justice Board, the work of YOTs at local level and the contribution that local authorities should make. The noble Lord will know that the youth crime action plan is being developed. He will also be aware of the new arrangements for accountability and the role of the Department for Children, Schools and Families alongside my department in terms of the relationship with the Youth Justice Board.

I would also refer the noble Lord, Lord Ramsbotham, to the new approach to local area agreements with local government, which gives local authorities much more ownership of those agreements and will have the benefit of focusing local authorities much more on the group of young people with whom we are all concerned. While I do not believe that anyone has a magic wand that can produce the resources needed or the quality of service required, I believe that we are facing in the right direction. We clearly need to build and enhance that. The whole purpose of the YRO structure we are debating is to produce a much more rational, co-ordinated approach in which it is clear from the intent that custody is the last resort.

Before responding to the noble Earl, Lord Onslow, in particular, I shall speak first to my amendments, which I hope show that the Government have listened carefully to what noble Lords have said on this matter. Section 174 of the Criminal Justice Act 2003 already places a duty on a court to make a statement giving its reasons for and explaining the effect of a sentence. In particular, where custody is imposed, it must say in accordance with Section 152(2) of that Act, that,

“it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence”.

So the court has to explain why it is of that opinion.

The government amendments would supplement this provision to require the court, when sentencing a young person aged under 18 to custody, to include a statement that it is of the opinion that a youth rehabilitation order with intensive supervision and surveillance or intensive fostering cannot be justified for the offence and to explain why it is of that opinion. That goes a long way to providing the safeguard that noble Lords require. The noble Lord, Lord Elystan-Morgan, referred to existing legislation. He said that it is not so much the legislation; it is the practice of sentencers. In our debates on the Bill, we have been to and fro between discretion and direction to sentencers. I hope that my amendment gets the balance right. It does not seek to fetter the discretion of sentencers, but gives the sentencers another point to consider. A statement on why the YRO with intensive supervision and surveillance or intensive fostering cannot be justified would have to be made. In that sense, a custodial sentence is justified.

Noble Lords are saying that I do not go far enough, and I am grateful for the conversations that I have had with noble Lords on this matter in the past 24 hours or so. I think that we have agreed on the requirement that a statement should be in writing. My understanding is that that is already a requirement of the law. If the magistrates’ court imposes custody, its reasons must be set out in the warrant of commitment and a transcript of Crown Court proceedings will always be made as there may be an appeal to the Court of Appeal. The noble Earl, Lord Onslow, has already acknowledged that point.

I turn now to the noble Earl’s amendment and its potential to raise the custody threshold, which is our concern. We are concerned that asking the court not just to look at the seriousness of the offence, but also to assess the risk the offender may pose to the public in the future, raises the threshold unnecessarily. I know that noble Lords have argued that if an offender commits an offence they ought not necessarily to have to face custody unless they also pose a future risk to the public, but one has to think about the consequences of that. If an offender could commit a really serious violent offence, as the law stands they could be found guilty perhaps of grievous bodily harm with intent. My understanding of the amendment is that, in that situation, the courts could not impose a custodial sentence unless the prosecution could also prove that the offender is a risk to the public.

It might be argued that if someone commits such an offence, it is axiomatic that they must pose a risk to the public. I understand that argument. But the problem that I have, and the advice that I have received on this, is that similar provisions are already on the statute book in the dangerousness provisions of the Criminal Justice Act 2003. My understanding is that very few offenders are assessed as dangerous—according to the Youth Justice Board, there were only 24 in 2005-06. But the sentencing statistics for 2006, to which I referred in my very long letter of 10 March to the noble Baroness, Lady Stern, show that more than 1,000 young offenders were sentenced to custody for serious violent offences alone. So we have a real concern that if we were to accept the amendment, it perhaps would have the unintended consequence of ensuring that even young people who had committed a very serious offence—where it would not be possible to prove the risk to the public—would not be given a custodial sentence.

I understand why noble Lords are concerned about the number of young people in custody and I accept that this is a genuine concern that many of us have, which is why we want to make custody a last resort. But custody sometimes will be a necessary condition and we would be concerned about the unintended consequences of the amendment proposed by the noble Earl, Lord Onslow. The Government have listened very carefully to the arguments put forward in Committee and I hope that noble Lords, on consideration, will consider that my amendment at least meets noble Lords somewhat more than half way. It reflects a shared concern about ensuring that sentencers understand the importance of custody being the last resort.

My Lords, I apologise for omitting to thank the Minister for allowing me to barge in on his meeting yesterday. I thank him very much indeed. He was very forthcoming and it was helpful, but I think we are now coming to the crunch on agreements.

The Minister said that custody must be necessary. If it is necessary, it should follow that it is the last resort. He said that 24 people had been assessed by the courts as dangerous and that 1,000 people had been locked up. That indicates to me that at least some of those 1,000 should not have been locked up because they were not assessed as dangerous. We should try to keep people out of prison. We know—it has been established by research after research—that prison is, on the whole, not curative. It is rather like being sent to Eton and Oxford to learn how to do crime. I know that the Conservative Party has an old Etonian as its new leader but we do not, I hope, as a country, have to follow him in the Prison Service as well.

We must try very hard to keep people out of prison. Subsection (1)(b) of the proposed new clause, which refers to,

“the risks the offender poses to the public are so serious that, notwithstanding”,

covers the issue. I should like to test the opinion of the House.

Schedule 1 [Further provisions about youth rehabilitation orders]:

4: Schedule 1, page 118, line 9, leave out “or”

The noble Lord said: My Lords, with government Amendment No. 4 I will speak also to Amendments Nos. 5, 15, 24, 25, 31, 34, 116 and 117. Amendments Nos. 4 and 5 are technical; they amend references to probation boards to take into account changes made in the Offender Management Act 2007. The amendments ensure that the reference is consistent with the new legislation.

Amendment No. 15 is a technical amendment that changes the minimum time limit for the completion of a youth rehabilitation order with intensive supervision and surveillance. At present, paragraph 32 of Schedule 1 provides that a youth rehabilitation order with intensive supervision and surveillance must specify a date, not earlier than 12 months after the date on which the order takes effect, by which all the requirements must have been complied with. The amendment will change that minimum period from 12 months to six months.

The youth rehabilitation order with intensive supervision and surveillance is based on the Youth Justice Board’s current intensive supervision and surveillance programme. It is the most robust community sentence available to the courts, which is why, when replacing it with the youth rehabilitation order, we have placed statutory restrictions on its use so it is reserved as a direct alternative to custody. Currently, the intensive supervision and surveillance programme most often lasts for six months. We think that the youth rehabilitation order with intensive supervision and surveillance should reflect that current practice.

Amendments Nos. 24 and 25 add the intoxicating substance treatment requirement to paragraph 9 of Schedule 2 so that a reasonable refusal of treatment will not lead to breach action by the courts. That is already the case with a reasonable refusal of treatment under the drug treatment and mental health treatment requirements, and it is appropriate that we bring the intoxicating substance treatment requirement into line.

Amendments Nos. 31, 34, 116 and 117 are minor and technical. Section 161 of the Criminal Justice Act 2003 currently provides for the court to order pre-sentence drug testing where a person aged 14 or over is convicted of an offence and consideration is being given by the court to imposing a community sentence or a suspended sentence. Amendment No. 31 removes the lower age limit of 14 for that pre-sentence drug testing. That reflects what has already been done for the drug testing requirement in the Bill, which may be imposed as part of a youth rehabilitation order by the court as part of its sentence. The other amendments are consequential to that change; they update dependent parts of the legislation and remove redundant delegated powers that relate to the provision in the Criminal Justice Act 2003 that we are removing. I commend these amendments to the House, and I beg to move.

On Question, amendment agreed to.

5: Schedule 1, page 118, line 10, at end insert “, or

(c) an officer of a provider of probation services.”

On Question, amendment agreed to.

6: Schedule 1, page 121, line 2, leave out “include a local authority residence requirement” and insert “make”

The noble Earl said: Here we are, my Lords, back at legal representation for minors. The noble Lord, Lord Hunt, sent me an immensely long letter that was well drafted by the Civil Service. I had quite a lot of trouble understanding it because, as with all of these things, I accept that it was designed as much to spread paper as to spread knowledge and light. However, after a bit of digging out it appears that although we said in Committee that it would cost £800,000 to fill this gap, the situation is much worse than was originally thought. In the calendar year 2006, there were 126,000 cases of under-18s being charged. Of those, one-quarter did not apply for, or get, legal aid.

As the Minister said in his letter, if all under-18s applied for legal aid, it is estimated that the additional cost to the Legal Aid Fund would be £17 million. Let us assume for the sake of argument—and I quite concede that this is an assumption off the top of my head—that half of the children who could have applied for legal aid, if they had done so or indeed if they had known about it, would have been given it. That would mean an extra £8 million, not the £800,000 that we were talking about earlier. The Government cannot say that that would cost extra money; that money should have been voted on the assumption that most people who were being charged would require legal aid. The money is theoretically there. If everyone said, “I want legal aid”, and the Legal Aid Board awarded it on the interests of justice test, the Government would be landed with a bill of, let us say, half—which is probably being quite conservative.

This has ceased to be a money argument. The Minister said to me in his meeting, “It would cost 17 million quid and I haven’t got 17 million quid”—I am sure he does not, and I understand the point he is making—but it is there if people want it and apply for it. They are entitled to it, so he would have to find the £17 million. That is the difficulty.

One of the people at yesterday’s meeting said, “This is a means-tested benefit that is not taken up in the way it should be”. I am certain, because this is the way of the world, that the people at the bottom of the heap, the people who are probably in care, disturbed and all those sorts of things, are less likely to apply because they are not canny. Surely it is the duty of us all to look after the most underprivileged, not only for their benefit but for ours. I do not how often I have to go on saying it, but if we catch, treat and help them early enough, there is a chance that some of them might go straight. I do not deny that some of them are quite disgusting—you can picture them: spotty, surly, baseball cap on backwards, with the occasional grunt coming out. One would want either to lock them up or to cover their feet with concrete and dump them overboard; I quite understand all that. But they are the most underprivileged people and we have to look after them.

It is on those grounds that I again raise legal representation. I thank the Minister for his informative letter. I am not sure that my amendment is the right way to do it, but the letter has brought to the public’s notice something that we did not previously know or quite understand. I beg to move.

My Lords, there is a mistake in the Marshalled List. The amendment should read as follows:

“Page 121, line 2, leave out from “not” to “a” in line 3 and insert “make””.

My Lords, I support the noble Earl and congratulate him on his perseverance in this matter. His point—that we are dealing with some of the least articulate and most disadvantaged children in our society—is crucial. Whatever they have done, we have to remember that. His amendment speaks of what is necessary for justice. In these days of the predominance of the market, I may be very old fashioned. I am not against the market as a principle, but I think that it needs to be seen in perspective. I therefore cannot accept the argument that a cost that might result from the amendment should make it unacceptable. It is justice that we are concerned about, and justice sometimes costs money. If that can be ensured only by proper representation, so be it. I urge the Minister to take the amendment very seriously indeed.

My Lords, I, too, strongly support the amendment, and I should like to explore a few of the circumstances around it.

Like the noble Lord, Lord Judd, I deplore any suggestion that funds are not available to give the people we are discussing what is their right as citizens. Tomorrow, the Independent Asylum Commission, of which I am a commissioner, will launch a report in which one of our findings is exactly the same; that is, that a lack of provision of legal aid is affecting a number of asylum seekers. I see a parallel in young offenders and the number of complaints that they make. People say that they do not make complaints, but that is not so. As one finds when talking to them, they are not guided, aided and enabled to make complaints, or put in the way of making them. The numbers that the noble Earl read out suggest that hidden among the quarter of young people being charged who are not applying is a large number who should and would qualify if the means were made available to them.

I wonder whether the numbers are known and, if not, why not. Surely we should have a better understanding of what it means in financial as well as legal terms. Should it be the responsibility of the Youth Justice Board to find out? I do not know. I am concerned that the Youth Justice Board appears slightly to have lost its way by failing to provide leadership on a large number of issues connected with youth justice, of which this may be one. There may be a legal way of doing it—I am not an expert on this and do not know—but it is important to establish the facts so that we know what is involved. We should then look at the procedures to make certain that as many qualified young people as possible are put in the way of getting the help they require. Surely that will have an impact on the justice they receive, and therefore on the outcome—which, as so many have said, is aimed at protecting the public.

My Lords, I, too, support the amendment. It is worrying that something like a quarter of the under-18s being charged may not be applying and are not really aware of their rights. As we are all aware, the people most likely to be in that group are the most deprived and the most difficult to reach, perhaps because of their family circumstances. It is doubly worrying when one thinks that this is the group of young people that the Prime Minister is targeting as the most vulnerable. As the noble Earl said, it is for our sake as well as theirs that they get the help that they require, because they will ultimately cost society so much more if their situation is allowed to continue. Their contribution to the nation, which could be positively unleashed, would be lost.

I support also the remarks of the noble Lord, Lord Judd, who is always so eloquent on these matters. Prevention is crucial. As has been said, we need to ensure that as much independent advice as possible is provided to young people who are in this position and to their families.

I am a little worried that court services are allowing the numbers of young people mentioned to go without legal aid. I agree with my noble friend Lord Ramsbotham that research is needed in this area. I hope that it will again be thought hard about.

My Lords, I support the sentiments expressed by all noble Lords who have spoken on this matter. The case is unanswerable. There are few cases more meritorious than people who are inarticulate and unable even to understand their position, and who are so much in need of legal advice and a voice to speak for them. Denial of that voice and that advice is undoubtedly a denial of justice.

It is clear that many thousands of young people fail to take up the opportunity of applying for legal aid in circumstances where it would probably have been granted to them. That means, in financial terms, that the Government are thereby profiting from the failure, which I know is neither their intention nor their desire. It also means that some of the £17 million to which we have referred should not be there at all, in so far as it is in reserve and unspent. Further, I have no doubt that there could be a cost-benefit factor here that is not irrelevant.

Perhaps I may make one practical suggestion. It would assist take-up if the obligation of drawing to the defendant’s attention his rights to legal aid were placed on the desk sergeant, who is responsible for dealing with the procedures when a person is arrested. One extra little box should be added to that ample document that is the custody memorandum. If anything is going to work, that would be it.

My Lords, I hope the Minister will clarify what is emerging from our discussion and from his letter to the noble Earl, Lord Onslow, which I have not had an opportunity to read—that the cost is not a cost. It would be a case simply of people who have an entitlement taking it up, rather than not taking it up so that the money was left in the budget to be spent on something else or else returned to the Treasury. I would be grateful for clarification that this understanding is right.

Amendment No. 86, which is on the issue, is in the group. Proposed new sub-paragraph (3A) states that:

“The grant of a right to representation shall be presumed to be in the interests of justice where the individual is under the age of 18 at the commencement of the proceedings”.

If you are talking about someone under the age of 18 it would be hard to argue against that, with the problems of understanding and of vulnerability. Perhaps the Minister will say whether he is in favour of that. If not, perhaps he will say how he justifies not being when we are talking about people under 18.

My Lords, peering through the smoke and gloom of 11 years of new Labour government, increasingly authoritarian as it is, there is a shining beacon—a light—and it was the passing of the Human Rights Act and the incorporation of the European Convention on Human Rights into English law. There is no point in having rights unless there is a means of enforcing them. Similarly, the Government have ratified the United Nations Convention on the Rights of the Child—rights that are given to young people under the age of 18. That is useless unless the child has available the ability to enforce those rights. That is what the amendment is about. It is about making available the provision of legal aid and legal representation, which will be of assistance not just to the person before the court but to the court itself, because the magistrate or judge who is dealing with a young person wants to do the best for that young person, and wants to ensure that the sentence passed is the most constructive and the least negative one that can be achieved. That is done through informed argument and discussion by those who know something about it.

To be complacent about the fact that a quarter of those entitled to legal aid do not claim it is, quite honestly, an ignominious retreat from the principles under which the Human Rights Act was made law in this country. We on these Benches wholeheartedly support the amendments.

Amendments Nos. 6 to 10 are confined to the making of a YRO. That is a serious step in itself; it is not the beginning of the process of children appearing before the court. Amendment No. 86 addresses a wider issue—the right of a child to have legal aid in any criminal proceedings. Amendment No. 86 is very carefully put together. It creates a presumption that a person under 18 should have legal aid; it also envisages circumstances whereby that presumption can be rebutted in the appropriate case. Surely that is the right balance—that the young person should have a presumption in his or her favour to have proper legal representation, and only in certain circumstances, the onus of proving which lies on the other side, could that right be taken away. Hand in hand with rights granted by this Government is the need to enforce those rights. That is what these amendments maintain.

My Lords, I also particularly support Amendment No. 86 and the principle behind it. I respectfully endorse everything that the noble Lord, Lord Thomas of Gresford, has just said. It is important to bear in mind that under new sub-paragraph (3B) proposed by the noble Earl, Lord Onslow, and the noble Lord, Lord Ramsbotham, there will be cases where it is not necessary to have legal aid. There will be a large number of road traffic offences—even for those well under the age of 17—and criminal damage offences, particularly graffiti, and there may be other minor offences for which children will find themselves before the youth court.

We are really looking at the disadvantaged minority that the noble Lord, Lord Judd, and, indeed, the noble Earl, Lord Onslow, were dealing with, who are probably facing the more serious offences whereby he or she—particularly he—is likely to be seriously disadvantaged if there is no one to speak for them. I particularly have in mind children in care.

A large number of children who appear in the youth court are also going through care proceedings. They do not have parents to look after them. They will almost certainly be excluded from school. They have a succession of social workers, who may be short-term. They do not have advisers, although under the children Bill, which recently had its Third Reading, there will be advisers; they may or may not be in place at the moment. They may not have a single person who matters to them to whom they can go. But the one thing they are entitled to is representation in court in those sorts of cases which matter. The noble Lord, Lord Thomas of Gresford, has reminded us that the Human Rights Act makes that a right. That is the sort of child about whom the noble Earl, Lord Onslow, was really talking in moving the amendment. We should particularly look at Amendment No. 86.

My Lords, this has been an extremely interesting debate. I congratulate the noble Earl once again on raising the matter. We have shone a light into an area which has not been discussed recently, and we have identified some areas, as he reflected, which probably need further research to discover whether people who ought to get legal representation are not getting it. The evidence for that is very slim indeed. My department has received no representations from organisations involved in the criminal justice sector to suggest that this is a genuine problem—and I will come back to the question of whether further research needs to be undertaken.

I also congratulate all noble Lords on their approach to monetary matters and what I can only describe as inspired accountancy. I will come back to the point about where the £17 million now is. My noble friend quite rightly said that justice costs resource. Of course it does. The current budget for legal aid in this country is £2 billion. We have the most generous legal aid system in the world. The kind of expenditure is, I think, £38 per head compared to about £3 or £4 in France and Germany. In countries with systems that seem akin to ours, such as Ireland or New Zealand, I think the figures are about £7 or £8 per head. I know that noble Lords will point to areas where they think more legal aid resource should be spent. That is fair enough, but we start with a basis of a huge amount spent in this country on legal aid. We spend as much on legal aid as we do on the direct cost of the Prison Service. I will come on to the question of resource in a moment.

We think that the current arrangements give sufficient and proper protection to young defendants. That case rests on the Access to Justice Act 1999, which says that all defendants must satisfy the interests of justice test to qualify for publicly funded representation. In applying the test, the court takes into account a range of factors. This includes whether the defendant is of a young age and whether they can understand the proceedings or state their own case.

There have been some changes. Since October 2006, defendants appearing before the magistrates’ court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation. However, that was changed in November 2007. From that point, all defendants under the age of 18 have been passported through the means test, so this has become a universal benefit if the interests of justice test has been met, as the noble Earl, Lord Onslow, suggested. That change was warmly welcomed by the legal profession, the judiciary and the Law Society, and I do not always look to the Law Society for support on legal aid matters.

My understanding is that in practice it would be extremely rare for a young person applying for legal aid not to pass the interests of justice test. As I said in Committee, this arises only in less than 2 per cent of applications. In many cases, the test is passed because court staff take the view that the young person may well not understand proceedings and so would be unable to state their own case. Therefore, in the overwhelming majority of cases, young people applying for legal representation will qualify.

It is important to stress, however, that we know that approximately one-quarter of the 126,000 youths who appeared in court in 2006 did not apply for a representation order. As the noble and learned Baroness, Lady Butler-Sloss, said, many of those cases involve the more minor summary offences, particularly those related to motoring offences, public order offences and criminal damage cases. It is probably entirely appropriate that legal representation is not required in those cases. However, I have no evidence to suggest that in the serious cases that noble Lords mentioned legal aid was not applied for, and that when applied for it was not given. I accept that we lack evidence in this area but, as I say, I have no hard evidence to suggest that there is a major problem in those circumstances.

The noble Lord, Lord Elystan-Morgan, made an interesting suggestion about the advice that might be given to desk sergeants in custody suites. I shall reflect on that important consideration. When a young person is arrested, cautioned and taken to the police station to be interviewed, she or he should be informed of access to free and independent legal advice and offered the services of the duty solicitor. That young person may well have taken up the services of the duty solicitor. That suggests that if the system is working well, there is no reason why a young person should not be represented if they ought to be.

On resources, your Lordships felt that the figure I quoted in Committee of £800,000 sounded a very small sum. It was based on the 1.7 per cent who failed the interests of justice test. The problem I have is that if all the people brought before the courts applied for and were granted legal aid through the interests of justice test, there could be a considerable increase in the legal aid budget. That is a risk that I do not feel I am in a position to take. I know noble Lords think that I have £17 million which I am saving for a rainy day or some other purpose. Alas, it is not like that. I have a cash-limited budget of £2 billion, which is set for the next three years.

My Lords, if, peradventure, another 20 per cent of these people apply for legal aid and 10 per cent of that 20 per cent are granted it, the Minister will have to find it, will he not, because they are claiming a right to which they are statutorily entitled? I think that is right, so he still has to find the £17 million, or whatever the sum is.

Yes, my Lords, but I have to find it from the legal aid budget. There is nowhere I can go to suddenly produce an extra £17 million. It would have to come from other parts of the legal aid expenditure. That is why I feel that as a government Minister I would need to have much more information about the consequences before I could support the proposal of the noble Earl, Lord Onslow.

Amendment No. 86 concerns a rebuttable presumption that all youths under 18 years would satisfy the interests of justice test. My view is that the interests of justice test already addresses this by asking whether the defendant is capable of understanding the proceedings. Equally, it might be argued that the presumption could be rebutted by taking into account the seriousness of the alleged crime. But again, this would be adequately covered by the interests of justice criteria regarding the likely loss of liberty in the event of conviction. Therefore, we see this amendment as essentially operating much as the existing interests of justice arrangements do. The figures seem to indicate that the system works well in that so few young people are refused legal aid representation when the interests of justice test is applied.

This has been a very genuine debate. While I cannot on behalf of the Government support the noble Earl’s amendments, I accept that—as he, the noble Lord, Lord Ramsbotham, and other noble Lords said—we clearly need a better understanding of how this is working. I will ask my department to contact the Law Society, the Justices’ Clerks’ Society and the Magistrates’ Association to verify whether they have real concerns in this area. As I say, we have received no representations at all from those bodies on these matters. I will also ask my officials to explore with the Legal Services Commission and Her Majesty’s Courts Service whether everything is being done to inform youth defendants of the arrangements for entitlement to legal aid. I will add to that the suggestion of the noble Lord, Lord Elystan-Morgan, as regards information to be given to desk sergeants in custody suites, to see whether that can be done. I shall ensure that the results of my inquiries are published in a report and placed in the Library. If problems come to light as a result of those inquiries, I can consider introducing changes via secondary legislation under the Access to Justice Act 1999 if I am persuaded that a genuine problem has been unearthed.

I hope noble Lords will consider that a constructive response, given the constraints within which I am operating. I again thank the noble Earl, Lord Onslow, for raising the matter.

My Lords, before my noble friend sits down, let me say that I am sure that I am not alone in the House in greatly appreciating the way in which he has tried yet again to meet a real anxiety that has been expressed. In his future discussions and representations, will he bear these points in mind? Budgets are not set in stone. Behind everything else, there is the basic question of how much in a decent society, of which justice is an important part, we prefer to rely on private affluence, although that is a much wider debate. Can he please make the point that there is a special need here, because we are dealing with the young? So often in our deliberations, we have talked about the paramount importance of rehabilitation in getting things right for the future because of all the cost that lies ahead if we do not get it right; there is a false economy. Therefore, if justice demands that there should be more financial provision, it should be made available. It is great that my noble friend can say that we are more generous than any other nation in the world; I, for one, am extremely proud of that. Let us follow through the logic of the course that we have set.

My Lords, we are on Report, so I will briefly respond to my noble friend. I thank him for his kind remarks. Of course budgets are not set in stone, but there is a cash-limited budget for legal aid for the next three years and, frankly, if we increase expenditure under one heading, it has to come from somewhere else. That is the practicality of public finance. On that basis, I need to be assured that there is a special need, but so far there is no evidence to suggest it. That is why the best course of action is what I have suggested, which is to contact the organisations that should know best. If they identify a real and genuine problem, of course I shall give further consideration to this.

My Lords, I am not stopping the noble Baroness, but I am grateful to her for giving way. I remind her that we are on Report. Only the mover of an amendment or the Lord in charge of the Bill may speak after the Minister on Report, except for short questions for elucidation to the Minister, or where the Minister speaks early to assist the House in debate, which was not the case for this amendment. Will the noble Baroness ask a short question for elucidation, as I am sure she was intending to do?

My Lords, I am most grateful. Am I right in thinking that everyone over 18 who is arrested on a charge is automatically offered the chance to apply for legal aid? I am unclear why that right is not also available to children under 18.

My Lords, the general point is that the interests of justice test applies to adults as well. Eligibility for legal aid is rather a complex question. I think that I need to write to the noble Baroness on the general point, because it is not something that can be answered quickly. The general point is that the interests of justice test is applicable to much wider situations than with the young people whom we are talking about.

My Lords, I thank the noble Lord for his answer, in which he has gone a very small way down the road of reassurance. A way forward that would make me quite happy, and I hope that would appeal to those noble Lords who have spoken in my favour, is to ask the noble Lord whether he can make his inquiries before Third Reading. I will table an amendment for Third Reading to cover the same point, by when he will have had time to make some inquiries. It is obvious that the Minister does not know where the 25 per cent goes. I am not in any way blaming him for that; it is a problem that has come up. We have discussed it and none of us really knows the exact nature of the problem. The noble Lord has said that he will try to find that out, so the best thing for me to do now is to withdraw the amendment and table another on Third Reading—

My Lords, may I ask the noble Earl a short question for elucidation? Is he reserving his position on Amendment No. 86 until we reach it in due course during consideration of the Bill, which I think will be some weeks hence?

My Lords, frankly, I was hoping that no one was going to ask me that. Although Amendment No. 86 is grouped with this amendment, I am tempted to speak to it later. I notice the noble Baroness, Lady Stern, smiling and nodding on the other side of the Chamber; if that is not going to encourage me to speak to Amendment No. 86 later, I do not know what is. What with that and the comment of the noble Lord, Lord Thomas, I will reserve my position and speak to Amendment No. 86 later, because it goes slightly broader and wider. I thank the noble Lord for his attitude on this and for his genuine desire to help. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 to 10 not moved.]

11: Schedule 1, page 124, line 39, after “specified” insert “and designated by the Secretary of State on the advice of the President of the Royal College of Physicians as”

The noble Lord said: My Lords, at the end of a useful debate that we had something like two months ago at the beginning of Committee stage, I said that we would return to the question of facilities for the treatment of young people with a dependency on or a propensity to misuse alcohol. We all agree that it is right to have separate arrangements for this purpose. It is the first time that we have done so in legislation as far as I am aware, in spite of the fact that alcohol misuse leads to far more crime than drug misuse. We now have it in the Bill, for which we are grateful. We were addressing the question whether the arrangements in the Bill were proportionate to the problem and would enable the courts to apply the requirement with confidence that the necessary facilities actually existed. If they do not exist, or if they are seen to be ineffective, those young people who commit offences because of alcohol misuse will continue to be given custodial sentences to dry them out temporarily, without addressing the problem that causes them to commit the offences in the first place.

Following that debate, the Minister wrote a helpful letter clarifying the powers of the court. Effectively, he said that with alcohol and other intoxicating substances, and with mental illness as well, the requirement is limited to attending the place where the treatment is to be delivered and does not extend to the actual treatment itself. That is because the requirements have to be subject to the Department of Health’s general guidance on consent and to the provisions of the convention on human rights. Compulsory treatment is not absolutely prohibited by Article 5 on the right to liberty or by Article 8 on respect for private life, both of which are subject to reservations, but the Government obviously take the view that, rather than taking the risk of litigation on these matters, they will make the orders and the treatments that depend on them “voluntary”. I put that word in inverted commas, because presumably the YRO and the treatments to be offered to the defendant are as an alternative to a custodial sentence that would have been imposed if the person had not been prepared to accept the treatment requirement.

In his letter of 4 March, the Minister said that in 2006-07 more than 25,000 young offenders were assessed by the youth offending teams and received early intervention and treatment for substance misuse voluntarily under DTTOs, now rechristened DRRs. He does not say how many of those cases related to alcohol or, of the ones that did relate to alcohol, how many were successful in terms of compliance. That is essential information that your Lordships ought to have if there is to be confidence in the YRO and the associated alcohol treatment requirement.

I accept that the National Treatment Agency is the main repository of expertise in this matter. The Minister endorsed my comments on the report Review of the Effectiveness of Treatment for Alcohol Problems. Incidentally, the report emphasised the cost-effectiveness of brief interventions, which would be delivered at a much earlier stage than we are talking about here. I hope that there will be provision for brief interventions in the criminal justice system, too, as they have proved effective in the health system and are being piloted in a number of hospital accident and emergency departments. They follow the great success of the Paddington alcohol test, pioneered by Dr Robin Touquet, which has resulted in a reduction of something like 50 per cent in the number of young people coming back to A&E departments within two years following the treatment.

The noble Lord said in the letter that the treatment services are indeed to be provided through the National Treatment Agency, which approves the deliverers of treatment, although it is a matter for the youth offending teams to make arrangements locally for access to the services by the young offenders who are their responsibility. Will the NTA provide guidance to local authorities and PCTs on the services that it will approve? If it does not, how can it ensure that best practice is achieved? What seems to be lacking, if I may say so, is any strategic mechanism through which the NTA can prescribe minimum standards or best practice, which it says is a must for all interventions to be effective.

I was particularly concerned by the Minister’s comments in his letter that only a small number of young offenders who had failed previously to engage with YOT treatment services would need the further coercion and support that we are discussing and that, because those offenders would be clients of services that are already provided, no additional funding would be needed. Therefore, we are passing this provision in the knowledge that there is no money behind it. That is pathetic and short-sighted, given that as many as 1.1 million dependent drinkers may benefit from more intensive treatment given by specialist workers and given that we know that for every £1 spent on treatment £9.50 is saved in crime and health costs. Those figures come from NOMS.

The failure to allocate more resources to the treatment of young offenders with alcohol problems, who are likely to cost far more than the average dependent drinker, is a grave omission. The 2006-07 British Crime Survey recorded 1,087,000 violent offences in which the offender was thought to be under the influence of alcohol; nearly half those were young people aged between 16 and 24.

Last week my honourable friend the Member for Hornsey and Wood Green was told in an Answer that 14,500 people under the age of 18 were prosecuted in Greater London alone for drink-related offences in 2006—much the same figure as in the previous two years. That was the tip of the iceberg, because in 73 per cent of reported crimes the offender was not caught and half the cases where there is an arrest do not lead to prosecution. This and other evidence lead me to believe that we are putting insufficient effort into identifying young people whose offending behaviour is related to alcohol and into addressing the problems that they suffer when they come before the courts.

I acknowledge that the crux of the problem, which is highlighted by the small number of people who have been subject to DTTOs, is that the overwhelming majority of young offenders with alcohol problems who come before the courts are not identified as needing treatment. This is not addressed by the treatment requirement, nor, I confess, by these amendments, but the expected frugal use of these powers by the courts is a sad reflection of the low priority that has always been given to alcohol, compared with other drugs, by the Government. I hope that this debate may do something to redress the imbalance. I beg to move.

My Lords, I am grateful to the noble Lord, Lord Bach, for copying to me the letter that he sent to the noble Lord, Lord Avebury. I have to say that the point that caused me most concern was that this alcohol-related treatment, along with the other drug and mental health treatment requirements, is subject to general Department of Health guidance on consent. This concerns me, because at the heart of the youth justice system and the carrying out of detention and training orders, for example, by youth offending teams is the working out of what should happen to a young offender during their sentence, based on an assessment of need. That is allied to an assessment of the time available and the priority of need, which is judged according to the various aspects that have prevented someone from living a useful and law-abiding life.

It is a matter of some concern that Department of Health guidance should be preventing the Ministry of Justice, the Department for Children, Schools and Families and others who have to work out what should be done with young people from enabling those young people to embark on a course of treatment to tackle what seems to be at the heart of many of their problems. I must ask whether, in the spirit of the amendment, it is not possible to go back to the Department of Health and revisit the guidance to see whether it can be made more in tune with the need of young offenders and, therefore, the protection of the public, which the Government say means so much.

My Lords, I wonder whether the noble Lord, Lord Ramsbotham, is really objecting to the use of the word “consent”. It seems that the difficulty is that children of a certain age have rights as to whether or not they should have to undergo medical treatment. One might consider putting treatment for drink or drug problems within the remit of treatment for mental health problems. There might even be a physical problem regarding the way in which people will be treated. However, the courts have said over the years that relatively young children, certainly those under 16, have increasing rights. That goes back to what Lord Denning said years ago in the Gillick case regarding the rights of children, but it applies right across the board.

I would have thought that the Department of Health guidance, which applies to girls receiving advice on contraception, would equally apply to girls or boys being offered treatment for intoxication or drug problems. I do not think that the Department of Health would change that guidance, even though it might be extremely inconvenient if a youngster refused to take the treatment. This is a major problem, but I am sorry to say that it cannot be solved by suggesting that the Department of Health should change its guidance.

My Lords, I am grateful to the noble Lord, Lord Avebury, for raising again this important topic and for referring to my letter to him and other noble Lords in answer to our debate in Committee.

I shall deal with the point made by the noble Lord, Lord Ramsbotham, which, perhaps I may say, has been answered comprehensively by the noble and learned Baroness, Lady Butler-Sloss. This is not some Department of Health guidance that is out on its own somewhere and is not relevant to other matters. It relates to the whole problem of what may be required in terms of medical treatment of a young person. Unless that treatment is to be given under the powers of the Mental Health Act, there is very little that the court can force a young person to do. Under the new order, the court can and, I hope, will require them to attend the place that is providing treatment. That is within the court’s power, but unless the offender is subject to the Mental Health Act 1983, it is not within the court’s power to do much more.

There are two parts to the noble Lord’s amendment. I know that he wants a debate rather than for us to concentrate on the two parts of his amendment, but I will, if I may, talk about them briefly. On the first part of his amendment—that which mentions the Royal College of Physicians—we do not think that it is desirable or practical to restrict the direction of intoxicating substance treatment to individuals who have been approved by the Royal College of Physicians.

We have been advised by the Department of Health and the National Treatment Agency, and they are of the common view that dependency on intoxicating substances can be resolved in a treatment intervention where the main worker is not a medical practitioner. It could be that some of those providing treatment will have no formal qualifications—what matters is that they are effective. This provides the flexibility that is required in the provision of treatment.

As was said in Committee, there may be cases in which the treatment could be delivered by a person with the necessary experience, through previous experience of addiction. In reality, those who have had direct experience of substance addiction can be most effective in directing treatment. For young people, such personal experience can and does provide powerful testimony of the dangers of addiction to substances. It is probably common sense to say that such persons are unlikely to be approved by the Royal College of Physicians.

Moreover, as I set out in my letter, the National Treatment Agency is the provider of these services and it will approve who delivers treatment. This is right because it is the authorised national body. The current wording of the requirement emphasises that the treatment worker must have necessary qualifications or experience to direct treatment. It has been agreed by the National Treatment Agency and the Department of Health and offers sufficient safeguards to ensure that treatment is directed by someone who is suitable for the role. Importantly, it allows for the sort of flexibility that is vital in order to ensure that a young person receives the sort of treatment that is tailored to their individual needs and circumstances. This wording is consistent with the drug treatment requirement in the Bill—paragraph 22(1) of Schedule 1—and the adult drug rehabilitation requirement in the Criminal Justice Act 2003.

The second part of the amendment does not reflect how such treatment is either delivered or funded; I know that that is what the noble Lord is concerned about. Youth offending teams already refer young people to these services. Indeed, the majority of young offenders receiving treatment for substance misuse access these services without recourse to a formal court order. This means that they will be signposted to treatment provision via the normal youth offending team supervision process.

Earlier today, I asked my officials to provide me with a case history for my own benefit; I hope that it will not appear condescending to mention how it might work. It may be a bit simplistic but I hope that the House will bear with me; it raises quite an important point. The noble Lord was getting at how this might work in practice.

My offender is called Michael; he is neither spotty nor surly. He has been convicted of a theft offence and is awaiting sentence. When he was arrested—perhaps even before he went to court but certainly before his sentence—he was first assessed by the responsible YOT officer so that a pre-sentence report could be prepared for the court. It was identified that he had a problem with excessive alcohol consumption, which had contributed to his erratic behaviour—indeed, to his offending behaviour. The responsible officer speaks to Michael about his offending behaviour during one of his regular YOT appointments. They agree that alcohol misuse is playing its part. The responsible officer refers Michael to the YOT substance misuse worker and tells Michael that he feels that he may benefit from a referral to that worker and that he can use some of his YOT appointments for just that end. Michael is not compelled to undertake this course of action but it is strongly recommended. Michael considers this offer and feels that he could benefit from a referral to the substance treatment worker and agrees to it. Consequently, he meets the YOT substance misuse worker, who refers him for further targeted treatment, using the NTA substance treatment budget. That is the end of the tale.

The majority of young people who are subject to YOT supervision in whatever form it takes and who are in need of alcohol treatment will receive this treatment without recourse to a court order by informal referral to the dedicated substance misuse worker who is attached to the YOT. If they were to refuse to engage with this informal referral, the YOT may seek a court-ordered attendance for treatment, which, under the YRO, would be the intoxicating substance treatment requirement. In our case, Michael, before he was sentenced, may have refused point black to do any of that; that would be the sort of case in which, under the YRO that is given to him as his sentence, there would be an attendance for treatment order.

I hope that that makes things slightly clearer rather than more complicated. We consider the intoxicating substance treatment requirement to be the safety net that underpins the normal supervision process.

Funding and provision—the noble Lord was concerned about those—are devolved to local areas. Young people’s specialist substance misuse treatment services are currently funded via the National Treatment Agency. I hope that I will be able to give some figures in a moment about that funding. Provision is commissioned locally and youth offending teams are the largest commissioner of these services. It is the role of the local youth offending team to identify local facilities and providers and to establish whether the services provided are appropriate for the particular young person. Information about suitable treatment services and facilities for a young person will be provided to the court as part of the pre-sentence report, as I showed in my example. The court will therefore receive the necessary information about the facilities being recommended through this process. A centrally held list of facilities would not add much value. Indeed, such a list would be unworkable and difficult to maintain accurately. The treatment services are delivered locally with availability changing constantly. The maintenance of a central list might be overly bureaucratic and, more importantly, would be out of date pretty quickly.

On funding, the total YOT funding via the Youth Justice Board is some £8.5 million per year. That is for substance misuse workers to be employed. The NTA provides £24.7 million per year towards specialist substance misuse treatment. That is beyond the YOT funding for young people across England; of that sum, more than 40 per cent of referrals into treatment in the year 2006-07 were for young offenders.

My Lords, could the noble Lord break down those figures into those relating to drugs and alcohol respectively?

My Lords, I am afraid that I do not think that I can; I have a note to that effect. The Youth Justice Board does not break down the figures for substance misuse into separate substances, so there is no separate figure for alcohol because—I am not sure that this will be satisfactory to the noble Lord—the system is geared for substance misuse in the round. This still makes a distinction between illegal drugs and substance misuse, which includes alcohol and glue-sniffing, as defined in the Bill.

The crux question being raised in the amendments is whether that requirement will need further funding. We do not think so. All YOTs are funded to provide substance misuse workers to support screening, early intervention and referral on to specialist services. As I have just explained, young people’s substance misuse treatment services are funded via the National Treatment Agency’s pooled treatment budget. Local children’s and young people’s partnerships are expected to ensure that children and young people can access the full range of treatment as outlined in the guidance given by the NTA. In practice, young people subject to the requirement will also access services provided by this funding arrangement. Therefore, we do not believe that bringing into being these orders, which do not exist for substance misuse as defined in the Bill, will require further funding. I think that the noble Lord’s point is that there is not enough funding in the first place to deal with this social problem, and that is a matter that we must take back and consider carefully.

My Lords, I am extremely grateful to the Minister for his thorough reply, although he did not respond to the questions that I put to him when I spoke to the amendment. I shall repeat them so that he can consider whether a further letter would be of use.

I asked about the sanction behind this treatment order. If a young offender refused to accept it, would he be liable to receive a custodial sentence? In the hypothetical case that the noble Lord cited, Michael has been resistant to the voluntary efforts of the YOT, which then imposes an order under this section. The possibility of a custodial sentence would warn the offender that if he continued to refuse to attend, he might be brought back before the courts and suffer such a sentence. That would be the incentive for him to comply with the treatment requirement where he had been unwilling to do so voluntarily.

My Lords, the usual breach rules, which we will discuss later in government amendments, provide some answer in that, as I understand it, there needs to be a very serious breach before an offender can be brought back the first time—I am talking in shorthand now. The question was whether the offender should be brought back to court automatically after a third breach. After the dinner break, the Government will move amendments suggesting that if the YOT officer thought that the third breach was not sufficiently serious, although a reasonable excuse was lacking, it would be wrong to bring the offender back to court. Therefore, in exceptional circumstances, the YOT officer is able not to bring back the offender.

If the offender is brought back to court for a breach of a YRO—I think that that is the subject of a later amendment—as I understand it, the court is not bound to send him to custody; it has a choice. Therefore, it would not necessarily follow that someone who breached the order would go into custody. However, you cannot require someone to receive medical treatment. You can require a person to attend a hospital but you cannot require him to undergo medical treatment. I hope that that answers the noble Lord.

My Lords, that may well be the answer to the point raised by the noble Lord, Lord Ramsbotham. The person who is subject to the order at least runs the risk of being brought back before the court and receiving a custodial sentence if the court feels that that is the only way to deal with the matter. That would apply if Michael, having been through the voluntary system, failed to attend when he was obliged to do so under the YRO. Therefore, the element of compulsion may not be necessary if that possibility is hanging over the offender.

I also asked the noble Lord whether he could give us some idea of the effectiveness of the 25,000 voluntary attendances. Was the treatment effective in reducing the offending behaviour of the majority of young offenders who complied with the voluntary system—the Michaels at an earlier stage—and came out the other end, the treatment having been delivered? I think that the orders are likely to be much less effective for those who are compelled to attend than they are for those who attend voluntarily. For the latter, there is at least the spirit of compliance with treatment for their alcohol problems, whereas the ones that we are talking about now will have to be compelled to receive the treatment.

In conclusion, the informal approach is good but the noble Lord has underestimated the need for additional funding, which was, as he correctly inferred, my main reason for asking your Lordships to consider the matter again. I hope the noble Lord will agree that we can at least undertake some research on the effectiveness of YROs and look at the figures again later to see who is right—him or me—about the amount of funding that is provided for them. I continue to believe that we underestimate the influence of alcohol on offending behaviour generally and in young people in particular, and therefore I make no apology for having brought back this matter to the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 and 13 not moved.]

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that Report begin again not before 8.37 pm.

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

Education (Student Support) (Amendment) Regulations 2008

rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 7 February, be annulled (SI 2008/235).

The noble Lord said: My Lords, at first sight, removing the right to maintenance loans and grants for university courses for students who are in prison seems fair enough, but two aspects of these regulations give me great cause for concern. First, although they are only temporary regulations applying just to this academic year, the substance of them is repeated in next year’s regulations, which I think are already before the House. Secondly, the regulations have been put together with a degree of carelessness which is culpable.

Prison education is not an easy business. A lot of dedicated people, voluntary organisations, different departments of state, the Prison Service and so on work very hard to use education as a means of rehabilitating prisoners. Prisoners who take university degrees must surely be a sub-group who have a pretty good chance of rehabilitation after they leave prison. It is always hard to get employment after you leave prison, but having a decent degree would make a considerable difference. Therefore, we should treat that group of prisoners with great care. Before we bring forward measures such as these, we should understand their effects. However, these regulations have been brought forward without the Government having a clue as to their effects and without them even knowing how many prisoners will be affected by them.

As I said, the regulations apply only to this year. They have been brought forward in great haste to save very little money—and at what cost? When the Government brought them forward, they did not know how many prisoners’ education opportunities would be blighted by them. They did not care, and I find that disgraceful.

Although, as I said, taking away from prisoners the right to maintenance seems sensible, what will happen to a prisoner on remand? If a university student is accused of a serious crime and spends time, quite reasonably, in prison on remand, as I read these regulations, he would lose his maintenance grant for the rest of the year. The noble Baroness, Lady Sharp, may remember Earl Russell’s student who was accused of rape and, with the noble Earl’s help, was exonerated. Even under the regulations as proposed by the Government, but not yet brought forward, he would have lost his maintenance grant for the term. That might tip a student into considerable financial difficulty without any justification at all.

What about a student who goes too far and for some reason is given a six months’ sentence, for example, for driving while uninsured and spends three months in prison in the middle of a university year? He will have contracted his accommodation for the year so he will not pay less rent. What will be his financial situation when he comes out of prison? Where will he find the funds to pay the rent that he still owes? Will he have to give up his university career just because of the regulations? What will happen to longer-term prisoners who pursue a course in prison and when they come out wish to continue that course at university? Where will they look for support?

We are told in the replies kindly given by the Minister that such students may be released while the regulations are in force and find themselves without recourse to a maintenance grant to continue the studies that they had pursued in prison. Maintenance grants do not cover only accommodation; they also cover books and other essentials. Where will prisoners turn for that money to pay for the books and other resources which they need to pursue their courses? Prison libraries are notoriously not well endowed when it comes to university-level material. They have to be able to turn somewhere for that.

Such matters ought to have been considered in advance, but they were not even looked at in advance. The Government now promise that they will bring forward regulations some time before September to deal with some of these intricacies. However, they have been very sketchy about those regulations and I should like to know from the Minister whether they will be brought forward before we retire for the Summer Recess.

These people are important. Letting them down at that point in their education, when they are about to leave prison, risks them becoming a menace to society when they might have been contributors to society. That puts in jeopardy a great deal of work that has been done by other people; and for what? When I first saw the regulations I presumed that some nasty newspaper had stuck a pin into an unsuspecting Minister and that these regulations were just a yelp of surprise and reaction. I could understand that. Newspapers are not nice when they go on the war path and one can excuse the initial reaction. But I should have hoped that the Civil Service would have managed to stop this and would have enabled better counsels and more careful counsels to prevail.

Yesterday, when I received the copy of the ministerial statement on this matter, it appeared that that was not the case. A Minister has just stumbled across this anomaly, said, “Whoopee, I can earn some Brownie points with the Chancellor by saving him £20,000”, and has valued that little bit of personal success over the consequences of this going ahead, without the research having been done and without knowing the effects, which is greatly distressing. At the heart of this, I am afraid, is a contemptible, petty, careless use of ministerial power. I greatly regret that this has been brought before the House. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 7 February, be annulled (SI 2008/235).—(Lord Lucas.)

My Lords, we on these Benches have some sympathy with the points made by the noble Lord, Lord Lucas. It is an anomaly. Since 1998, 154 prisoners have received rather more than £20,000. The total amounts to something close to £700,000.

Yes, my Lords. On average, such prisoners have had a loan of about £4,000, which they presumably will have had to repay, and a grant of about £1,000. The noble Lord made the point about not knowing the circumstances of the prisoners who were students; whether they were young men or women—I suspect they were probably young men rather than young women; whether they had to pay for their lodgings for the year when they had been put on remand; and for that matter whether the grants were being made in order to buy books, which is very necessary.

In all conscience, the problem of education in prisons is huge. We are in the middle of the Criminal Justice and Immigration Bill and the noble Lord, Lord Ramsbotham, has been extremely anxious to have a number of amendments considered which relate to prison education. Many of us have this issue on our conscience. A big problem is that when prisoners are released, they can no longer continue the courses that they started. It is vital that they are able to do so.

In that process, I have discovered a blog being pursued by a number of noble Lords. I notice that the noble Lord, Lord Lucas, contributed to that blog yesterday, saying that he was going to pray against the regulations today. He said:

“The point of prison is (in part) to rehabilitate prisoners—and a difficult and tortuous task it is too. Lots of agencies need to work harmoniously together. Prisoners taking university degrees must surely be among the best prospects for rehabilitation—so we ought to take particular care of them”.

I sympathise with those feelings. Equally, it is fairly clear, as the noble Lord said, that a Minister has discovered this anomaly and has thought that the hole should be plugged very quickly. The regulations have then been brought forward as a knee-jerk reaction and, yes, on average, £20,000 a year would be saved. Those who are detained at Her Majesty's pleasure already get maintenance from Her Majesty so you can understand the feeling that it is unnecessary to pay them twice. Another way to look at it is that they are a group of prisoners who have discovered a little loophole and have been able to profit from it and why should they? Looking on the more positive side, it seems to me that the noble Lord, Lord Lucas, has raised an interesting issue and I shall listen with interest to what the Minister has to say.

My Lords, my noble friend is clearly very committed to ensuring that prisoners are equipped with education and skills to assist them on their release from prison and I sympathise with many of the points that he has made. However, I am glad that the Government have now stopped the abuse of the student support system by prisoners. I want to ask the Minister how that quite unbelievable situation came about and why it was allowed to carry on for so long. According to the preliminary investigations by the Government—it has been widely reported in a number of newspapers today—more than 250 prisoners have received £250,000 in maintenance grants since 1998 and an additional £250,000 of loans have been paid out by the Student Loans Company over the past 10 years.

When will the Government provide a breakdown of the number of serving prisoners affected by the Education (Student Support) (Amendment) Regulations 2008? I strongly believe that prisoners should be encouraged to learn and train while serving their sentences, but not with grants designed to help students outside prison with their living costs. Students struggling with costs have a right to feel outraged.

We are all too aware that many prisoners who arrive in prison are unable to read and write and are often released back into the community in the same condition. The Government say that they are committed to rehabilitation. What is being done to provide a stronger role for the third sector providers who have the ability to link basic education and training in prison with realistic prospects for employment on release? Following on from that, if prisoners are released early, what is the department doing to ensure that they are able to continue the education and training that they undertook in prison to aid their rehabilitation successfully afterwards? I, too, will listen with great interest to what the Minister has to say.

My Lords, I would normally start a dinner break debate by thanking the noble Lord for precipitating the debate. Even though this is a Prayer against the regulations, it is helpful to have this debate and for me to have the opportunity to answer these questions. As a former member of the Merits Committee, I can now feel from the other side the benefits of its work. I pay tribute to its members and extremely able chairman.

I hope that I can reassure the noble Lord that we take very seriously his concerns and the concerns of the Merits Committee. We also take the need for the rehabilitation of offenders extremely seriously and are supportive of the role that higher education, further education and distance learning can play in contributing towards that important cause. However, if the regulations were annulled, that would reopen the loophole that has enabled prisoners who are maintained at public expense also to receive student support. I do not believe that that is right or an appropriate use of public funds.

It is right that prisoners, like other students, should be eligible for loans to cover the full tuition fees for higher education, and prisoners will continue to be eligible to take out such loans even with these regulations in place. But as the noble Baroness, Lady Sharp, pointed out, prisoners are already maintained at public expense. They have access to the learning materials that they need, such as books, through the higher education institution—many higher education institutions would, I am sure, advocate how brilliant their library facilities were—and, as the noble Lord, Lord Lucas, said, through the Prison Service, as well as support for travel and meals while they are away from the prison. It is therefore simply not appropriate for them to receive further financial support for maintenance.

This academic year, the review identified that 44 prisoners have received some form of maintenance payment while in prison. As noble Lords are aware, all further maintenance payments to these individuals have been stopped. Where appropriate, payment of tuition fees to higher education institutions has been reinstated. The Government are committed to improving the skills of offenders, helping them to move into gainful employment and to break the cycle of reoffending. I do not accept the noble Lord’s assertion that we do not care. We care very much indeed. Offenders are encouraged to study at all levels, not only in higher education.

The Government's commitment is illustrated by the significantly increased amount spent on courses in basic skills, further education and part-time higher education since 2001. In 2007-08, prisoners will undertake more than 1,500 Open University courses. I am sure that the noble Lord will welcome that.

A smaller number of prisoners attend full-time higher education courses. They are mainly from open prisons and nearing the end of their sentences. They attend through temporary release from the prison, which is approved by the governor. Thorough risk assessments are carried out by the Prison Service, as well as regular discussions with the higher education institution, to make sure that the prisoner is suitable for release and is making appropriate progress. Yes, we take care to ensure that they are progressing. Detailed scrutiny of cases found by searching for prison postcodes in the Student Loans Company database shows that, from 1998-99 to 2007-08, 154 prisoners received some form of maintenance payment while full-time students. In total, as we noted in this debate, those prisoners received around £570,000 in maintenance loans. We expect those loans to be repaid, and they are being. They also received £160,000 in maintenance grants, which is not an appropriate use of public funds.

In comparison, at the time of my right honourable friend John Denham's Statement on 7 February, preliminary investigations suggested that approximately 250 prisoners had received up to £250,000 in maintenance grants since 1998. We did have an idea about the numbers. We were concerned about individual cases and we appreciated the importance of understanding individual details, but we also felt that a Statement had to be made to Parliament, because Parliament needed to know. I do not wish to labour this point, but there is also evidence of maintenance payments made to prisoners between 1990 and 1998.

The noble Lord, Lord Lucas, suggested that insufficient care and attention has been paid to the effect of our amending regulations on prisoners who will be released this academic year. He is right to be concerned; I can fully understand the concerns about prisoners who are released and who need financial support to complete their courses. The number of cases is small; to date we are aware of 11 prisoners who were full-time students and have been released since the beginning of this academic year. A further 14 are eligible for release before August.

Prison governors wrote to all prisoners attending full-time higher education to inform them that they would not be eligible for any further maintenance payments when the amending regulations came into force, and the Student Loans Company has written to released prisoners, informing them of the reasons for their maintenance payments being stopped. However, we should remember that those students have received some maintenance payments in the current academic year on which they could draw. If they suffer financial hardship, universities can administer the Access to Learning Fund, provided by the Government, to assist such students. Released and serving prisoners have been informed about the Access to Learning Fund.

The amending regulations for 2007-08 are an interim measure. It was necessary for Ministers to act swiftly to prevent further maintenance support payments to prisoners undertaking higher education in the current academic year, as most will already have received more funding than we believe is right. From the academic year 2008-09, we are working to ensure that maintenance support for any student who has spent part of a year in prison is available on a pro-rata basis. Those regulations will be laid before the summer, as the noble Lord asked.

My right honourable friend John Denham also made it clear that he will be considering how best to manage financial support for offenders in higher education in the longer term, based on recommendations from DIUS and Ministry of Justice officials. I am sure that noble Lords will be concerned that these regulations are looked at very carefully, and I am sure that the Merits Committee will think about them too.

The noble Baroness, Lady Verma, asked about the role of the third sector. We are proud to work in partnership with the third sector, and I am pleased to pay tribute to the work that it does, particularly the Prisoners’ Education Trust, with which we work closely. We are committed to ensuring that we make the most not only of higher education opportunities, but also further education, the Open University and first-level skills.

The noble Baroness, Lady Sharp, talked about students entering prison. The concern is that the majority of students in higher education who are prisoners are long-serving prisoners rather than the other way around. Of course we must be aware of those concerns as well.

The noble Lord, Lord Lucas, has sharply highlighted his concerns over the welfare of prisoners and the need for them to be able to continue with their education. I hope that I have indicated that we have taken a great deal of trouble to understand the individual circumstances of prisoners directly affected by the withdrawal of maintenance payments. We are aware of the institutions they attend. We have ensured that they are aware of what support might be available, and have no reason to believe that any students have to date indicated that they would not be able to finish their courses. However, should that be the case, we have made efforts to ensure that they are aware of what additional financial support institutions—

My Lords, does the Minister have any information on what the money has been used for? The implication is that it has just been absorbed by the prisoners and perhaps passed on to their families, or has even been used to make life slightly more comfortable for them within their own environment. If many of these prisoners are in open prisons, there is some lee-way for them to do that.

My Lords, that is an interesting question. It is not easy for prisoners to spend money while they are in prison. I cannot give the noble Baroness a full answer but we have every reason to believe that, where prisoners have received maintenance payments, those payments should be available to them when they are released; I cannot see any reason why they would not.

I feel—optimistic is not the right word, because I would rather that I was not now in this position at all. However, I hope that we have taken all reasonable steps to ensure that taxpayers’ money is properly used and that the interests of the rehabilitation of offenders are properly balanced with that. I hope that the House understands that the Government support education and training for prisoners, but that taxpayers cannot be asked to support the maintenance of prisoners who are full-time students and already maintained at public expense. It was important that my right honourable friend John Denham took swift action to close this loophole of a long-standing and unjustifiable use of public funds and, in so doing, protected the taxpayers’ interests. I hope that, after my contribution, the noble Lord will consider withdrawing his Motion.

Well, yes, my Lords—protect taxpayers’ interests. However, the trouble is that the department’s view of taxpayers’ interests is excessively narrow and purely financial. I thought that one of the promises when this Government came into office was joined-up government. Looking after prisoners and their rehabilitation particularly requires joined-up government, care and thought. The noble Baroness has said that 25 prisoners who have been or will be released this year will receive no further maintenance payments.

My Lords, I actually said 11, and suggested that those prisoners had already received maintenance payments that they would not be able to use until their release. My assertion was that they should be able to draw on those funds that they had already received in this academic year.

My Lords, how does the noble Baroness know? She does not know the individual case histories and nor does her department. The department has not taken the right thing to do for these individuals into consideration in drawing up its regulations. It did not even know how many individuals there were: the noble Baroness was only able to tell me yesterday how many were involved, and has given me further information today.

In correcting what I think the whole House agrees is an anomaly that needed correcting, it is important that Ministers’ wishing to move fast does not involve trampling on the efforts of many others, in other departments and the voluntary sector, to try and make society better and save it larger amounts of money in other ways in the future. One of these young men, or whoever they are, going wrong in the future will cost a great deal more than £20,000. This is an area where doing things carefully and right can save a great deal of money. Hasty regulation is presumably only saving the summer term’s maintenance payments, because they will have already received the amount due for the spring by 28 February.

This is not a pattern of regulation-making that I would hope to see repeated. I asked a couple of questions. If the noble Baroness can write to me, I would be grateful. In looking at future plans, the Government have said that when a prisoner comes out, they intend that he should be entitled to maintenance payments for the time that he is out of prison, so that he can move into the university and find some accommodation, pay for books and be funded like an ordinary student when that happens. But what will be the effect of the intended regulations on prisoners already at university who spend time on remand, or who are in prison for a short sentence? Are they, as I suggested, going to find themselves saddled with a debt for accommodation which they have no way of avoiding and for which the Government will deny them maintenance payments? After all, if prisoners are on remand and go back to university, they have presumably not been charged or have been found innocent. People who have done nothing wrong will find a chunk of their maintenance charges shot away if the pattern outlined by the Government so far is taken forward. There is obviously no particular hurry, but I would like to know—when or before we see the next set of regulations—how these students’ interests will be looked after. For the moment, however, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

My Lords, I beg to move that the House do now adjourn during pleasure until 8.37 pm.

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

[The Sitting was suspended from 8.07 to 8.37 pm.]

Criminal Justice and Immigration Bill

Consideration of amendments on Report resumed on Schedule 1.

14: Schedule 1, page 128, line 6, at end insert—

“Emotional and intellectual maturity28A Before making a youth rehabilitation order, the court must obtain and consider information about the offender’s age and emotional and intellectual maturity.”

The noble Baroness said: My Lords, this amendment considers the issue of emotional and intellectual maturity. The Minister will recall that we moved similar amendments in Committee.

The amendment reflects the concern that further safeguards are needed in the YRO framework to ensure proportionality and prevent overloading of sentences. We fear that a court’s decision to address relevant welfare issues alongside reoffending ones in sentence conditions could even be the straw that breaks the back of the child or young person in terms of his capacity to comply. While we recognise the Government’s good intentions, we want a little more reassurance about the proportionality of YROs to the emotional and intellectual capacity of the young offender. This is another attempt to take the legislation further down the road of applicability to young people, recognising that we are essentially still operating in a criminal justice system that has been designed for adults and adapted to young people. That is why we have retabled this amendment and those grouped with it. I beg to move.

My Lords, I am very glad that the amendment has come back. In Committee, when we were discussing the subject of emotional maturity, we drew attention to a notorious case, which the world knows as the Venables and Thompson case, involving the murderers of young Jamie Bulger who, although aged 10 with developmental ages of four, were tried in what was virtually a High Court. That was a clear example where the maturity of the young offender had not been taken into account.

I realise that there is a borderline, which has already been mentioned this evening, between being too descriptive in legislation, putting too much down, and not putting enough, and whether we should put some things in the Bill or in legislation or regulations that go with it. I understand that a whole body of advice goes out to sentencers in a variety of ways instructing them to take those aspects into account. However, one finds a number of cases in young offender and other institutions of people suffering from serious mental health problems that have not been identified during the process until then, because there has not been a diversionary scheme in place.

In that regard, I welcome the inquiry being carried out by the noble Lord, Lord Bradley, to whom I have spoken and pointed out that, quite apart from the problems in arranging diversionary schemes for adults, that will be far more difficult for youngsters because of the shortfall in forensic psychiatric nurses and doctors in the system who will be able, first, to carry out the diversionary scheme and, secondly, to make certain that there is treatment to follow up whatever is assessed to be a need. I support the amendment because, in view of that, it is essential to make certain that those aspects of dealing with that very vulnerable group of young people are always put before people who have to make a decision—not to allow them to resort merely to referring to the offence and whether it is prevalent but to remind them that each one of those people is an individual whose needs have to be assessed.

My Lords, at yesterday's meeting, some people called CAMHS, of whom I had never heard before, floated into my vision. I am told that they are in the child and adolescent mental health services. I am also told that in some parts of the country, they are absolutely terrific; in other parts, they are practically nonexistent. I am also told that they come under the budget of the Department of Health. The noble Lord, Lord Hunt, having left the Department of Health, is in a situation rather like Churchill and the Home Secretary when they switched sides over dreadnoughts in 1908, when the hats change and a different voice says the same thing. We will put the noble Lord, Lord Hunt, as a Churchillian First Lord of the Admiralty, saying, “We want eight for dreadnoughts”—or, otherwise, CAMHS.

What happens is that the Department of Health budget goes up and the benefit goes to the Ministry of Justice, which finds that it is saving money by looking after people’s mental health properly rather than having to lock them up in prisons. The Minister would then have some money for his legal aid people, which he says he does not have—we will let him get away with that. There is a wonderful example here of the failure of one part of government to talk to another. I am in no way saying that this would not happen under a Conservative Government, because of course it has and it will; there is no doubt that these sorts of things are inherent in the structure of government.

My name is on Amendments Nos. 19 and 22 in the group, and I am very pleased that I put it on them, even though I can see what I think was called the Denman argument that if you include too many lists, it rather defaults from it and puts in some pecking order. We were, however, right to bring it up and to press it, and we are right to see whether we can get from the Minister a little picture of how CAMHS works. I rang the Minister’s office this morning, so he has had advance warning and I am sure he will thrill us with his answer.

My Lords, I add to what the noble Earl, Lord Onslow, said about CAMHS, as that has been mentioned. I endorse what he says. Indeed, I think I was the one who brought it up at the meeting with the Minister yesterday. CAMHS is an excellent institution. It provides an excellent service where it is sufficiently resourced and in the places where it is doing well, but it is, as far as I know, inadequate in certain areas. I know from my previous experience as a judge that there were areas where children and young people who needed help had to wait sometimes 12 to 15 months. No group of young people is more in need of help than those who are going through the criminal justice system and who can be diverted from a lifetime of crime if their very real mental health needs of a wide variety can be met early on. It will be very costly to the country and devastating to the young person if those needs are not met early enough to prevent years and years of criminal offending that starts with a mental health problem that has not been met.

I know that the Minister understands this, and that he knows from his previous experience at the Department of Health exactly what I am saying, but we on this Bill need the help of the Department of Health to push for the better resourcing of CAMHS so that there is far greater opportunity to access it much more quickly, because however much it is needed in the family field, it is needed in the criminal justice field even more.

My Lords, I too shall add a few words here. I was at the meeting last night and was impressed by the attention that the noble Lord, Lord Hunt, paid to this issue. I see the argument against putting everything into the Bill. It can be argued that this would push certain other areas of great importance if not out of sight then lower down the pecking order, but we have heard again and again—my noble friend Lady Butler-Sloss pointed this out earlier in our debates—that some 60 per cent of those in care who are in institutions are suffering from mental health problems. That is a pretty appalling figure. If there is some way in which this can be drawn to the attention of those with greater resources and made a higher priority for the National Health Service in its budgets, and if more research can be done into finding out exactly where these gaps are, that would be a great help and a step in the right direction, because this is something that we all want to tackle. It is pointless to treat children who have learning difficulties and mental health difficulties as though they were fully in command of their faculties, because quite clearly that is not justice.

My Lords, I am glad to support the amendment for the straightforward reason that it is about rehabilitation. It is as plain as a pikestaff that it is not possible to tackle the task of rehabilitation unless you have looked carefully at the person for whom the rehabilitation is being provided. The rehabilitation must meet the needs of that individual. Therefore, the maturity, the intellectual ability, the ability to learn and the rest of the youngster concerned are absolutely crucial and central to the task. While I agree with the noble Baroness, Lady Howe, that it is not possible to include everything, this seems to be essential. If one is talking about rehabilitation being in the Bill, one should be talking about this, because rehabilitation without this is a nonsense.

My Lords, I support these amendments, which get to the heart of one of our concerns about youth justice legislation. To a certain extent, that concern has been understood and answered by the Minister, but there is still some way to go. A number of times we have raised the point that in some cases we are punishing children for whom punishment is quite inappropriate because their lives until now have been nothing but punishment.

There is a large body of evidence on the strong link between the past abuse of children and their subsequent disturbed behaviour. The Minister may be aware of the history here. The Youth Justice Board commissioned a report on the past abuse histories of children in custody and then decided not to publish it for a considerable period, although that decision was later reversed. I am sure that the Minister had a hand in that in some way.

Recently, I attended a conference of people who were supposed to be, and seemed to be, the leading experts on the consequences of a childhood of growing up in a home where there is domestic violence and the children experience abuse, violence, sexual abuse and so on. It should not be concluded that all children from such backgrounds go on to behave violently. However, many children who behave violently come from a background of abuse, violence and suffering. At quite a large conference of youth justice workers, there was a feeling that past abuse does not figure enough in assessments and decision-making.

From that perspective I welcome these amendments. As other noble Lords have said, they attempt to look at each child as an individual, to take more account than we seem to have been able to of what has brought them to the position that they are in, and to consider, as the noble and learned Baroness, Lady Butler-Sloss, said, what is likely to get them to a point where they might be able to throw off their past experiences and to lead a law-abiding life. I support these amendments, which attempt to remind us that many of the young people whom we are dealing with are from such backgrounds.

My Lords, that was an interesting discussion. What might have been a rather technical debate has proved to be a debate of great substance. I am sure that, in relation to the practice of sentencers and the interrelationship between mental health services in general and children and adolescent mental health services in particular, the argument for the recognition of the importance of early access to high-quality CAMHS for these young people is wholly persuasive. I hope that I can convince noble Lords that the Government recognise that. Indeed, we are taking action to ensure that this happens.

I know that there is concern that the sentencing process may not sufficiently take into account what is described as the intellectual and emotional maturity of the young person, but we should recognise that we have embraced a lot of different factors within that term. We believe that, as far as the technical answer is concerned, a young person’s age and maturity are factors that are embedded in general sentencing practice. We also believe that the court should take into account factors such as age and emotional maturity when making any sentencing decisions. They are important factors, which a court always ought to take into account when deciding which interventions should be made and for how long, as the noble Baroness, Lady Stern, said. The courts will always consider the extent to which age and maturity may be a mitigating factor. More than this, they will often amount to mitigation. The Court of Appeal stated in the Queen against Howells in 1991 that youth and immaturity, while offering no defence, will often justify a less vigorous penalty than would be appropriate for an adult.

Youth offending teams, in courts up and down the country, will be key in ensuring that this is implemented effectively. As part of the assessment process, a youth offending team must look at the age and maturity of the individual to determine what their needs are and how those needs can best be met. This applies across the piece. It also ought to inform any breach action that may be taken.

I assure the noble Baroness, Lady Miller, that we will ask for factors of age, maturity and other matters of personal mitigation for a person aged under 18 to be addressed in the sentencing guidelines that will be provided to sentencers before the youth rehabilitation order is brought into effect. I know that the noble Baroness has, in general, welcomed the consideration that has led to the YRO being brought forward in this legislation; nevertheless, she has concerns about how this might impact in practice. Clearly getting the guidelines right will be important in ensuring that we get the benefits of the proposals without some of the perverse incentives that she and other noble Lords have referred to in our days of debate. We will ensure that the Sentencing Guidelines Council is asked to produce these guidelines, which will be subject to wide consultation before they are brought into effect.

The comments that noble Lords have made about diversion and the role of mental health services are crucial to the debate. The noble Lord, Lord Ramsbotham, referred to the review being undertaken by my noble friend Lord Bradley into diversion generally in mental health services. It is an important review, which I hope will help to deal with the long-standing problem of people within custodial settings being in the wrong place when they ought to be within appropriate NHS facilities. A great deal of progress has been made over the past few years, but clearly more needs to happen.

I agree with the noble Earl, Lord Onslow, on the budgetary points that he made. Unlike with his rather ambitious ideas for my legal aid budget, he is right that, if more money can be invested up front in appropriate mental health diversions, that must have a wholly beneficial impact on many of the people whom we are talking about and, it is to be hoped, on the resource position of my department. That is the very meat of the review that is being undertaken by my noble friend.

I am grateful to the noble Earl for giving me notice of this because I have been able to obtain some information for today’s debate. The performance indicator for youth offending teams is to ensure that all young people who are assessed as manifesting acute mental health difficulties are referred by youth offending teams to CAMHS for formal assessment, commencing within five days of receipt of their referral, and that non-acute mental health concerns are referred by the youth offending teams to the appropriate CAMH service, where assessment and engagement should commence within 15 working days of referral. The figures that I have show that, during 2006-07, 91.2 per cent of young people with both acute and non-acute diagnoses were referred to services within the target timeframe. Five hundred and twenty-three people were reported to be manifesting acute mental health difficulties, of whom 477 were referred within the required five working days.

My Lords, the Minister has said that there are very serious geographical differences. Have those been identified and what can we do about them?

My Lords, I do not think that I said “very serious”; I said that I thought that there was a patchy performance. It is clear from the figures that I have quoted that, in the main, the initial targets are being met, but within that there is a proportion of areas where they are not. That issue has to be confronted.

I was going to say that, in addition to the performance assessment, the Children’s Plan, published last December by the Department for Children, Schools and Families, contains a commitment to commission an externally led review of CAMHS. The commitment is to carry out a review of how it can be ensured that mainstream universal settings are meeting the educational care and support needs of children and young people at risk of, and experiencing, mental health problems, as well as meeting the needs of children and young people with severe and complex needs in a more integrated way. That is an excellent basis on which to take this forward.

The terms of reference of the review will be to take stock of progress to date and I have no doubt that the review will identify where there are areas of patchiness and which areas need to be improved. My understanding is that the final report will be submitted to the Secretary of State for Children, Schools and Families and the Secretary of State for Health by the summer of 2008. That will fit neatly with the timeframe of my noble friend Lord Bradley in terms of the more specific review that he has undertaken on diversion into mental health services.

We have here an appropriate process through which to evaluate how well we are doing, what the gaps are and what needs to happen in a collaborative way, involving the Department of Health, the Department for Children, Schools and Families and my department. While I would never underestimate the challenges that we face in our mental health services, this measure should give us a great deal of optimism for the future.

It is difficult to overestimate the huge improvement that has taken place in the past few years in healthcare in custodial settings since the National Health Service took over responsibility for it. Not only has the amount of money spent on health doubled, but the quality and professionalism have improved as people have been brought from outside into the custodial setting. I pay tribute to my former colleagues in the Department of Health and the NHS. They give me confidence that we have ways of dealing effectively with mental health services for young people. While this is not a matter that falls to be dealt with statutorily, I clearly recognise the issues, the problems and the improvements that have taken place. I also recognise that there is much more to be done in the future.

My Lords, before the Minister sits down, perhaps I may ask a brief question for elucidation. Is he satisfied that the assessment tools used by youth justice workers are designed in a way that enables them to report to the court on emotional and intellectual maturity and immaturity and on mental health needs? I was given to understand by a large number of youth justice workers that the assessment did not enable them to do so and was deficient in that regard.

My Lords, I am happy to consider that matter. If there are shortcomings that the noble Baroness can identify or point me in the direction of, I will be happy to look at them and see whether they can be played in to the work that I have mentioned. Where the assessment has taken place and a mental health need has been identified, it seems in most cases that a referral is able to take place and that the appropriate CAMHS team is able to undertake that assessment, which, one hopes, will lead to effective treatment. However, if there are specific concerns to which the noble Baroness can point me, I am happy to look at them.

My Lords, I am grateful to all noble Lords who have spoken, bringing to bear on this matter their greater expertise than mine. I am also grateful to the Minister for his full reply. We are lucky that he was in the Department of Health and then moved on to the Ministry of Justice, because that has left him well placed to comment expertly. As he rightly said, this is a work in progress.

The Minister spoke mostly to Amendment No. 14, because it addresses young people before they are sentenced. As he said, the sentencing guidelines will be brought to bear on that. Amendment No. 19 relates to a young person who is already in the system and is in breach of their order. His reply did not deal with that as fully. In some ways, the situation to which it relates is the more worrying, because the young person concerned, having been sentenced, is failing again.

However, as the Minister said, this is a work in progress. We will look forward to the Bradley report. I am sure that we will debate the issue further. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

15: Schedule 1, page 130, line 12, leave out “12” and insert “6”

On Question, amendment agreed to.

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

16: Schedule 2, page 134, line 31, at end insert—

“(1A) But sub-paragraph (1) does not apply if the responsible officer is of the opinion that there are exceptional circumstances which justify not causing an information to be so laid.”

The noble Lord said: My Lords, I shall speak also to government Amendments Nos. 17, 18 and 21. They relate to the breach process and we hope they find favour in this House.

We took away a clear message from our debate in Committee on this subject: that flexibility within the breach process is critical. It is right that the breach process should be in the legislation. We need to ensure that clear and consistent standards apply to the enforcement of a community order. Without effective enforcement, the whole system of community punishments may fall into disrepute, both with the courts and the public. However, as we made clear during the debate in Committee, by placing current national standards for youth justice for breach action into legislation we are not looking to change practice. That is why we have brought forward Amendments Nos. 16 and 17. They correct an unintended divergence from the current national standards.

Essentially, these amendments will re-instate the current additional flexibility that youth offending team managers have to stay breach proceedings in exceptional circumstances, even where there has been a third breach of a youth rehabilitation order, with no reasonable excuse, in a 12-month period.

Government Amendments Nos. 18 and 21 deal with the powers of the court when dealing with a young person for breach of their order. It is right that we should give credit where it is properly due. These amendments are identical to those tabled in Committee by the noble Lord, Lord Kingsland, and they reflect amendments tabled in another place.

As currently drafted, the Bill states that where a youth rehabilitation order is still in force, a court must deal with an offender for breach of a youth rehabilitation order in one of three ways: by imposing a fine, by amending the youth rehabilitation order, or by re-sentencing. Contributions in Committee from all sides—not least of course from the noble Lord, Lord Kingsland, himself—were both informed and persuasive. Parliament sets the legislative framework within which the courts must work. Within that framework, we should not unnecessarily fetter the discretion of the courts.

We accept the argument advanced by noble Lords that requiring the court to take one of the three forms of action I mentioned would have done this. That is why we have tabled the amendments. They remove the requirement for a court to take a specified action for breach where the youth rehabilitation order is still in force. In effect, these amendments will allow the court to give the offender a verbal warning, if appropriate, and allow the original order to continue, if that is considered to be the right thing to do.

We have listened carefully to the concerns expressed about how the Bill currently deals with breaches. We hope that the House will agree that these amendments fully address those concerns. We think that the breach process now offers the right level of flexibility, alongside the necessary need for robust enforcement. I commend the amendments to the House. I beg to move.

My Lords, I thank the Minister not only for the amendments but for the extremely generous way in which he introduced them. We are absolutely delighted that they are now in the Bill.

On Question, amendment agreed to.

17: Schedule 2, page 134, line 36, at end insert “(in a case not within sub-paragraph (1A))”

18: Schedule 2, page 135, line 36, leave out from “ways” to end of line 37

On Question, amendments agreed to.

[Amendment No. 19 not moved.]

20: Schedule 2, page 136, line 44, leave out sub-paragraphs (12) to (16)

The noble Baroness said: My Lords, with this amendment we return to the issue of the original offence not warranting custody or being non-imprisonable and whether the court should be precluded from imposing an intensive supervision and surveillance requirement for breach of the rehabilitation order. We appreciate that the Bill provides that in the event of a wilful and persistent failure to comply, the court has various options.

As the Minister will be aware, the Standing Committee for Youth Justice has concerns about these proposals. It points to the number of cases that have returned to court for breach in recent years. We would not have these provisions before us if the system was working perfectly. The Bill is supposed to improve the position but the Standing Committee for Youth Justice feels that it is likely to exacerbate the trend.

I am sure the Minister has the relevant figures but in 2005-06, 2,738 young people were returned to court for non-compliance with ISSPs, which was almost half of those commencing the intervention. Therefore, this issue gives rise to serious concern. The committee is also concerned that to allow the use of custody in cases where the original offence was not sufficiently serious to warrant it is not consistent with the purposes of sentencing in the Bill. I feel even more strongly about that issue following the debate we have had about the purposes of sentencing. Therefore, I would appreciate hearing whether the Minister feels that without this amendment the Bill sufficiently reflects the fact that the purpose of the sentence needs to read across into what happens if there is a breach. I beg to move.

My Lords, I am grateful to the noble Baroness and I welcome the opportunity to debate again the breach provisions, which we believe are necessary. One would hope that the YRO system is so successful that there are no breaches and that therefore it is not necessary to use the relevant provisions. However, we should not be naïve about that. Except in what we hope will be exceptional circumstances, officers will be able to use appropriate discretion when operating the breach system. Warning systems will be in place and are designed to ensure that a breach is dealt with at an early stage without the consequences that the noble Baroness mentioned. She is concerned that the measure will lead to a lot of breaches, which will result in more young people ending up eventually in custody. I understand those concerns. However, I have noticed in my visits around the country that on the other side of the fence, if you like, community sentences can be seen as a soft option. They have not been viewed as a vigorous option and some believed that breaches were not pursued as effectively as possible. That view is changing but it is very important to have effective breach mechanisms to ensure that what we are seeking to do retains its credibility. I am clear that the general thrust of youth justice in the Bill has received a lot of support from noble Lords. I am in no doubt about that whatever. The breach provisions ensure that there are appropriate sanctions if young people do not fulfil the terms of the orders.

My Lords, does the Minister consider it to be absolutely contrary to principle that you should have a more severe punishment for breach of a civil court order than for the offending conduct which caused that order to be made in the first place? Surely, we are concerned with a fundamental principle here. Breach of the civil order is being elevated way above the original offence. That must be contrary to Article 14 of the European Convention and, I am sure, to other articles in other conventions to which this country is party. I do not see how it can ever survive a challenge in the European Court.

My Lords, that is not the view of the Government. The context of YROs is that they are there to provide the courts with a community sentence, which includes, with a high intensity of requirements, viable alternatives to custody. It is critical that that has the confidence of sentencers and of the general public. That means that there must be adequate enforcement and appropriate sanctions for those young people who wilfully and persistently refuse to comply with the terms of an order. Having appropriate sanctions is critically important to the credibility of what we are seeking to do.

My Lords, is the Standing Committee for Youth Justice correct when it says that a more serious punishment cannot be inflicted on an adult offender for breach of a community order and this is confined to under 18s? That is ridiculous. Why should there be a distinction when you are dealing with children; that they can have a more serious punishment for this—can be sent to prison and can lose their liberty—when they could not be sent to prison for the original offence? If it is different with adults, as I am instructed it is, surely that must be wrong.

My Lords, I will help the noble Lord out by saying that the Government have form on this; it is called ASBOs. If you breach an ABSO, you can be sent to prison for breach of the ASBO on hearsay evidence of doing something that may not in the first place even have been a crime. If that is of any assistance to the Minister, it is a fairly poisoned chalice. But that is the track down which we are going; and it is going to come up with violent offender orders as well.

My Lords, the heart of the argument is that if we were to accept the amendment, in practice it would mean that if a young person wilfully and persistently breached the terms of a youth rehabilitation order, they could be re-sentenced only to a further youth rehabilitation order. So you have a potential revolving door, with the young people who persistently breach feeling that in the end there are no sanctions. That is why we need the provisions. Noble Lords are ignoring the fact that there has to be a wilful and persistent breach of the first—

My Lords, am I not right in thinking that a YRO is imposed where a criminal offence has been committed? If there is a breach, it should be open to the court to punish the person for the criminal offence that is the subject of the order. Am I wrong?

My Lords, let me explain. The noble Lord said that all you can do is impose another YRO. But you could go back to the original criminal offence and impose another penalty for that criminal offence.

My Lords, the court can deal with failure in any one of the following ways. As a result of government amendment, it has the discretion to order the offender to pay a fine, or amend,

“the terms of a youth rehabilitation order so as to impose any requirement which could have been included in the order when it was made … in addition to, or … in substitution for, any requirement or requirements already imposed by the order”.

It can also deal,

“with the offender, for the offence in respect of which the order was made, in any way in which the court could have dealt with the offender for that offence (had the offender been before that court to be dealt with for it)”.

That sets out very clearly the options that are laid before the court.

I do not see how that undermines the point that I am making; that we are surely all agreed that youth rehabilitation orders seem to be a very sensible way to deal with many young people. To make sure that the YR system works effectively, it is a very good idea if young people recognise that persistent breach has serious consequences. That is why the provisions for breach are there.

My Lords, this question is based on the briefing of the Standing Committee for Youth Justice. I am seeking clarification here—in case the noble Lord, Lord Bach, gets a bit worried about it. The briefing states that you cannot do this with an adult in relation to a community sentence. Why should you do it in relation to a child?

My Lords, my advice is that the standing committee is wrong on that. I am happy to set it out in more detail for the noble Lord, but that is the advice that I have received. I have also received advice that we consider that the provisions are, as he would expect, compatible with the ECHR. It is notable that the Joint Committee on Human Rights did not take issue with this aspect of the Bill. We think that we are covered in this regard. The point I was making was that for custody to happen, there has to be a wilful and persistent breach of the first youth rehabilitation order. The court can re-sentence and impose a youth rehabilitation order with intensive supervision and surveillance for that persistent and wilful breach. At that stage, custody is not available.

The young offender then has again wilfully and persistently to breach the order. This time the sentence is imposed for the original wilful and persistent breach of the youth rehabilitation order for intensive supervision and surveillance. Only then is custody available to the court. The court can then impose a detention and training order for a minimum period of up to four months, but it does not have to.

Perhaps I may refer in more detail to the comparison with adult community offenders. My understanding is that there is an equivalent provision on breach of adult community orders in Schedule 8 to the Criminal Justice Act 2003. Paragraphs 9 and 10 of the schedule provide the magistrates’ court and the Crown Court respectively with the power to impose a custodial sentence of up to six months on an adult who wilfully and persistently fails to comply with a community order imposed for a non-imprisonable offence. So similar provisions are available.

In all of this, the emphasis is on what is specifically described as a “wilful and persistent breach”. That phrase is critical and should reassure noble Lords that we are not proposing to penalise young people disproportionately for minor misdemeanours, which was one of the issues raised in our debate in Committee. We are talking about the worst cases where the young offender is clearly and repeatedly not responding to or engaging with their community sentence. Ultimately, the thrust of all our debates has been to ensure that custody is the last option. The YRO structure is designed to ensure that that is the position. That is why it is important to have a vigorous approach to breaches. It is the justification for this structure, particularly in relation to wilful and persistent breaches. On that basis, I invite the House to accept that the proposals are indeed proportionate and acceptable.

My Lords, there is unfortunately a parting of the ways and the philosophy here and we will not overcome it tonight. We still do not believe that custody will ever be the right answer, however wilful and persistent the breaches—for a series of what are still minor albeit highly irritating and antisocial offences. As the Minister will appreciate from previous debates, it has not been proven that custody solves anything in terms of causing reoffending rates to decline.

We also have not discussed what form that custody will take. We have not discussed, for example, Amendment No. 44, which will allow us to debate what sort of secure accommodation there should be. I do not think that we will get any closer in terms of the basic philosophy that is dividing us tonight, and I am sure that we will come back to it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

21: Schedule 2, page 138, line 9, leave out from “ways” to end of line 10

On Question, amendment agreed to.

[Amendments Nos. 22 and 23 not moved.]

24: Schedule 2, page 139, line 40, leave out “either” and insert “any”

25: Schedule 2, page 139, line 43, at end insert—

“(c) an intoxicating substance treatment requirement.”

On Question, amendments agreed to.

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

26: Clause 5, page 4, line 6, after “offender’s” insert “, or his immediate family’s,”

The noble Lord said: My Lords, I tabled this amendment in Committee and have brought it back on Report partly because the noble Lord, Lord Bassam of Brighton, said that he would go away and think about it. I have received a letter, for which I am extremely grateful, setting out the results of his cerebrations between Committee and Report.

As currently drafted, Clause 5 places a duty on the responsible officer to ensure that, in giving instructions in pursuance of the youth rehabilitation order, they should not, so far as is practicable, conflict with the offender’s religious beliefs. My amendment suggests that we should extend the requirement to cover the religious beliefs to the young offender’s immediate family.

My reasons for doing so are the following. You might find a situation in which a young offender could fulfil his or her community disposition only if there were transport facilities available to him, that they were provided by his parents, and that on certain days of the week—for religious reasons—his parents were unable to fulfil those obligations. I think that I said to the noble Lord, Lord Bassam, that I would be perfectly content with a statement from the Government Front Bench in lieu of a provision in the Bill.

The letter from the noble Lord, Lord Bassam, talks about the important role played by the responsible officer in dealing with an individual who is subject to a particular disposition. He wrote:

“The responsible officer will be able to take into account the full range of issues that may have contributed to an episode of non compliance. This can include issues which are beyond the young person’s control, such as hospitalisation and the actions of their parents”.

He goes on to suggest that the particular situation that I raised in Committee is one of the factors that the responsible officer would normally take into account. I am looking for the last piece of the jigsaw puzzle from the Government; if they told me that the religious beliefs of the parents would be a factor that would exonerate a young person in those circumstances, I would be quite content. I beg to move.

My Lords, I hope that by the time I finish speaking, the noble Lord, Lord Kingsland, will think that I have made the necessary statement. His amendment seeks to broaden the responsible officer’s duty to consider an offender’s religious needs to include those of the offender’s immediate family. He is again exploring whether a young person would be in breach of a youth rehabilitation order where he was prevented from meeting the terms of the order by issues which had arisen that were beyond his control. In that event, and if that was proved to the satisfaction of the relevant officer—I am not talking about formal proof—then there would be no breach. There can be a breach only if there is no reasonable excuse. If there is a reasonable excuse, as I understand it, it follows that there can be no breach.

The noble Lord went on to ask whether a young person would be in breach of an order if he was dependent on his family to fulfil the terms of the order—for example, for transport—and this was not forthcoming due to the religious beliefs of his family. The noble Lord kindly mentioned the letter that my noble friend Lord Bassam wrote to him. The letter emphasised, as we have tried to do consistently in debates on YROs, that the Bill assumes that local management discretion is essential if we are to deal fairly with issues surrounding breach.

We cannot say that in all cases where an offender claims that a breach of a requirement was a result of his family’s religious beliefs, the responsible officer will at once accept that as a complete answer. The responsible officer may well nearly always accept such an explanation, but there may be circumstances where it will not be appropriate to do so and the matter will have to be considered individually. It might not be acceptable where, for example, the offender and his parents have different religious beliefs or one parent has religious beliefs different from those of the other. I may be accused of being far-fetched but the far-fetched examples show that every claim cannot automatically be accepted by the responsible officer. In other words, he would have to manage such an issue.

We have ensured that the responsible officer has the flexibility to deal with the full range of issues that can arise when dealing with young people. The crux of the matter is that this includes the power to assess what constitutes a reasonable excuse for non-compliance. We have deliberately placed the responsible officer at the heart of the process. He knows the young person and his family and is able to exercise his professional judgment to take into account the full range of issues which may contribute to non-compliance. He can, and will, take into account those issues which may be beyond the control of the young person.

Moreover, the parents of a young person will be involved in making the arrangements for the interventions under the YRO. The responsible officer will have contacted the parents and gained their agreement where they are required to play a significant role.

Of course, it is right that the religious beliefs of the young person should be taken into account in the delivery of the requirements within the YRO. That is why the responsible officer must have regard to them when delivering those requirements. However, we do not believe that we should extend, in the statute, such a consideration to include the religious beliefs of the family of the offender.

It is common sense that the duty of the responsible officer is 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, before making a YRO. In practice, we would expect the youth offending team also to have regard to the young person’s family circumstances, in so far as that is practicable.

I hope that I have done enough to satisfy the noble Lord that, in practice, what he wants will happen, provided that the claim made by the offender who has not turned up—to use his example—is genuinely based on something such as his parents’ beliefs.

My Lords, I think every responsible officer should have a copy of the speech of the noble Lord, Lord Bach, in his knapsack. I am most grateful to the Minister and I promise that I shall not bring this matter back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

27: Clause 5, page 4, line 14, at end insert “written”

The noble Lord said: My Lords, this amendment was dealt with on 6 February in Committee at col. 1092. It concerns the obligation to have an audit trail for community orders. The government position in Committee was that it is not necessary to specify in the Bill what is basic case management and that the level of detail demanded by our amendment was inappropriate.

Of course, I know that it is normal practice for instructions to be given in writing. Given the importance of the consequences of breach in this new regime, surely it must be in the interests of the authorities to have a complete record in relation to every individual of the various stages that they have gone through in the process. I think the noble Lord, Lord Bassam, suggested that in about 90 per cent of cases the national standards elicited an appropriate written record. I did not think that percentage was satisfactory and it added weight to my desire to have in the Bill an obligation that the history of any individual case should be, as a matter of law, in writing. That is why I have brought this amendment back again.

Perhaps I can put the point another way. A person against whom an allegation of breach is made in court would be perfectly within his rights to say that there was no record of it and no written instruction was sent to him. The Government are acting against their own interests by resisting what I am proposing. I beg to move.

My Lords, I shall attempt to answer the noble Lord’s persuasive case—persuasive as far as the officers are concerned, not as regards the offender. I want to separate those two. It is not so persuasive that I shall take it away for consideration. It is persuasive in the sense that there must be a complete record, of course, and I understand why the noble Lord says that. The real issue is whether that needs to be in the Bill.

We believe that these matters are satisfactorily dealt with already in guidance. As I am sure was pointed out in Committee, I point out that the National Standards for Youth Justice Services set out what a responsible officer is required to do in respect of instructions to a young offender made subject to an order. Those instructions state that an agreement must be produced with the offender which should be in writing and signed and will include acceptable and unacceptable absence criteria, the right to be treated fairly and with respect, the requirement to behave acceptably, and time-keeping.

The noble Lord may come back to me and say that those standards are not legally binding if they do not appear in statute, and therefore may not be followed on all occasions. Of course, that point is taken, but we believe that properly monitored and enforced guidance offers both a robust and flexible approach to this issue. The Youth Justice Board will monitor and ensure compliance and, importantly, guidance can be changed or tweaked to allow for future variations. If an officer does not do that and the case goes pear-shaped—if I can use that expression in your Lordships' House—which has been known, it is not likely that that officer will ever do it again. He will have breached the national standards and I understand that officers are obliged to behave under national standards. We believe that proper case management procedures are in place and I hope that they will remain properly adhered to in the future.

On the matter of young offenders, the argument is different. Many noble Lords in Committee and on Report have suggested that the real problem with breaches and all these orders is with those who are underprivileged and have not had the opportunity of a full and successful education, among other things. They may well have literacy problems—that exists in a much wider range of defendants than we sometimes like to believe, as has been said by many noble Lords throughout the House. To make a young offender notify his responsible officer of a change of address “in writing” is asking too much. It must be done, but not necessarily in writing. It could be done by telephone, which is probably the most likely way that it would be done today—by mobile phone or text message. You could oblige every offender to notify changes in writing, but some might not be capable of that. That is why we do not accept the noble Lord's amendment on that.

Nor do we believe it appropriate to specify on the face of the Bill the need for a responsible officer to keep written records of their instructions. Not everything has to be in law for officials to comply with it. Responsible officers are required to keep case management records. If they fail to do so, there is a risk that any action for breach might fail—perhaps deservedly so. I repeat that they would have to face up to the consequences of failing to comply. All responsible officers must keep valid and accurate records, as they may be required in court. If a young person wants to see details from their case record, they may apply under existing data protection procedures and we do not believe that it is appropriate to repeat those in the Bill. I have attempted to dissuade the noble Lord from pressing his amendment.

My Lords, I am most grateful to the Minister for his reply, but I cannot disguise my dismay at hearing it—and my surprise. As I said, given the Government’s concern about breach and the likelihood of certain offenders coming back on several occasions to be confronted with the consequences of breach, in my submission the absence of a proper written record would undermine their individual cases, and if there were many examples it would undermine the system.

I am perfectly prepared to accept that my drafting may have been overbureaucratic and some things could be omitted; but I did not notice the Government suggesting that they themselves might lend a hand to find a version that would integrate seamlessly with their other legislative drafting. I shall go away and think about what the Minister said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 28 and 29 not moved.]

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

30: Schedule 4, page 173, line 27, leave out “(A1),”

The noble Lord said: My Lords, I also speak to government Amendments Nos. 49 to 51. These amendments tidy up the drafting of Clause 12 by removing duplication and an inconsistency. They make no changes to policy.

Clause 12 currently substantively restricts the availability of the community order as a sentence for imprisonable offences. It does this by inserting new Section 150A into the Criminal Justice Act 2003. That remains unchanged. Consequential to new Section 150A are minor changes to Section 151 of the same Act. This section allows a court to impose a community order where a persistent offender has previously received three or more fines. Section 151 is not new—it has been in the 2003 Act from the start.

These amendments tidy up the changes to Section 151 that are already in the Bill and make it operate consistently with the new restriction on the use of the community order. The amendments remove some duplicated wording in Section 151, as amended, and amend Section 151 so that it clearly states situations in which a court can give a community order to persistent offenders who have been previously fined. As I have said, they do not alter the policy introduced by Clause 12 or the policy set out in Section 151. The amendment to Schedule 4 is consequential upon these other changes. I beg to move.

On Question, amendment agreed to.

31: Schedule 4, page 174, line 21, at end insert—

“77A In section 161 (pre-sentence drug testing)—

(a) in subsection (1), omit “aged 14 or over”, and(b) omit subsection (7).”

32: Schedule 4, page 174, leave out line 31 and insert—

“79 (1) Section 174 (duty to give reasons for, and explain effect of, sentence) is amended as follows.

(2) In subsection (2)—”

33: Schedule 4, page 175, line 5, at end insert—

“(3) After subsection (4) insert—

“(4A) Subsection (4B) applies where—

(a) a court passes a custodial sentence in respect of an offence on an offender who is aged under 18, and(b) the circumstances are such that the court must, in complying with subsection (1)(a), make the statement referred to in subsection (2)(b).(4B) That statement must include—

(a) a statement by the court that it is of the opinion that a sentence consisting of or including a youth rehabilitation order with intensive supervision and surveillance or fostering cannot be justified for the offence, and(b) a statement by the court why it is of that opinion.””

34: Schedule 4, page 176, line 14, at end insert—

“93A In section 330(5)(a) (orders subject to the affirmative resolution procedure), omit the entry relating to section 161(7).”

On Question, amendments agreed to.

Clause 7 [Youth rehabilitation orders: interpretation]:

[Amendment No. 35 not moved.]

My Lords, I beg to move that consideration on Report be now adjourned.

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

House adjourned at 9.52 pm.