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Criminal Justice and Immigration Bill

Volume 700: debated on Wednesday 2 April 2008

My Lords, I beg to move that the Bill be now further considered on Report.

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

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

36: Clause 9, page 7, leave out lines 1 to 9 and insert—

“(2) The court must have regard to—

(a) the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37(1) of the Crime and Disorder Act 1998),(b) in accordance with section 44 of the Children and Young Persons Act 1933, the welfare of the offender, and(c) the purposes of sentencing mentioned in subsection (4) (so far as it is not required to do so by paragraph (a)).”

The noble Lord said: My Lords, we have had substantial and helpful debate, both in this House and in another place, on Clause 9, which sets out the purposes of sentencing for under-18s. The debate on Clause 9 has encapsulated much of our informed debate about the purpose and outcome of the youth justice system as a whole. Clause 9 is designed to clarify the current law and to remove a potential source of confusion for sentencers. It has been strongly welcomed by the Youth Justice Board and the Magistrates’ Association. It will, of course, underpin and inform the new community sentencing structure with its emphasis on rehabilitation and tailored interventions. It is very important that we get this clause right.

As drafted, the Bill states that when sentencing a young person the court must have regard primarily to the principal aim of the youth justice system, which is to prevent offending or reoffending by persons under the age of 18. The court should also have regard to the purposes of sentencing, as set out in subsection (4), and to the welfare of the offender in accordance with Section 44 of the Children and Young Persons Act 1933. Many noble Lords took the opportunity to speak to this clause in Committee and some expressed concerns that a hierarchy was built into it. Many felt that the welfare of the child was subordinate in the clause, a point that the Joint Committee on Human Rights made explicitly.

We have listened carefully to noble Lords; the group of amendments that I have tabled reflects that fact. We believe that our amendments are compatible with our international obligations under Article 3 of the United Nations Convention on the Rights of the Child. The amendments will, I hope, remove any argument about a hierarchy within the purposes of sentencing. Essentially, the court will have to have equal regard to the principal aim of the youth justice system, the welfare of the young person and the purposes of sentencing. I believe that the amendments clarify the position. I hope that they will reassure noble Lords that we do not believe that the welfare of the child should be a subordinate consideration. I am happy to make it clear that the welfare of the offender is a primary consideration and must be considered by the court as such. I beg to move.

My Lords, Amendment No. 47 is grouped with these government amendments. I thank the Minister for listening to the various submissions made on this matter in Committee and for taking some steps towards removing the hierarchy to which he referred. However, in the classic terms of old Liberal assemblies, it does not go far enough. Consequently we are taking this opportunity in Amendment No. 47 to amend the principles of the youth justice system as set out in Section 37 of the Crime and Disorder Act 1998.

Your Lordships will observe that government Amendment No. 36 refers to,

“the principal aim of the youth justice system”,

as set out in Section 37(1) of the Crime and Disorder Act 1998. However, we urge your Lordships to consider that that Act was passed in 1998 and that matters in relation to youth offenders have moved on considerably since then.

Article 3 of the United Nations Convention on the Rights of the Child states that,

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

In domestic law, the Children Act 1989 establishes that decisions taken by the family court, dealing with a whole range of children’s issues, must be taken in the child’s best interests through the use of the welfare checklist. The 1998 Act was something of an exception. Not only did it address solely children who offend, but it stressed that the primary aim, to which I referred, is the prevention of offending above all other considerations.

There is an American film called “Parenthood”, which I urge all those interested in youth justice to see. It contains a sentence that I always regard with some affection. When a child is born and the new baby is presented to the mother and father, the father, Steve Martin, looks at the mother and says: “What a wonderful gift this child is, and so far we have done nothing to harm it”. That encapsulates in my mind where an awful lot of the problems that bring young people before the courts start. Maltreatment leads to offending behaviour. Children who offend grow up in an environment of poor parental supervision with a lack of discipline or with harsh and erratic parenting.

At earlier stages of the Bill, we talked about the role models that lead children to go astray. Children who offend have an increased likelihood of living in poor housing and experiencing family conflict. Their role models are their parents and grandparents but these families have a history of anti-social behaviour.

In young offender institutions within the prison system, children are treated as prisoners. They are confined. The staff are generally trained as though they were prison officers. Although it is suggested that courses should be offered, the atmosphere is that of a prison and not of a place where children can be persuaded to change their offending behaviour and to discuss problems or difficulties that they may have with safe and trusted adults.

In its recent report on the use of restraint in secure training centres, the Joint Committee on Human Rights said about the treatment of children in custody:

“The United Nations Convention on the Rights of the Child 1989 … ratified by the UK in 1991, emphasizes a recognition of the dignity and worth of children. In the context of detained children and young people, this principle is vital to the rehabilitation of the child and to his or her ability to be an effective citizen when released. However, law and practice in the UK relating to children and young people in detention calls into question the Government's commitment to that principle”.

Two government departments are particularly concerned with young people in trouble: that for children, schools and young people—I forget the precise name of the department, but it is something like that.

My Lords, I am much obliged. That government department deals with young people in trouble, as does the Home Office. In December 2007, a few months ago—

My Lords, in his interesting speech, the noble Lord has missed out my own department, the Ministry of Justice.

My Lords, these government changes happen with such frequency, not to mention the personnel involved, that it is difficult to keep up.

The Children’s Plan, published in December 2007 by the Department for Children, Schools and Families, acknowledges that the current system is in need of fundamental reform. This is the Government’s own paper. It states that,

“more effective action is called for by children’s services and youth justice agencies to reduce youth crime through a reformed approach to youth justice that has a stronger emphasis on prevention, rehabilitation and action to stop repeat offences by young people”.

We want a complete change in youth justice policy so that we do not treat children in the same way as we treat adults; that is, by locking them up to prevent offending and reoffending. We want the recommendations in the Children’s Plan to be followed. We submit that the signal given by our amendment is important—that the principal aim of the youth justice system is to promote the welfare of children and in so doing to have particular regard to the need to prevent offending, including reoffending. In other words, we wish to shift the balance and the emphasis from punishment to rehabilitation—to putting children on the correct road.

While we welcome the steps that the Government have taken in their amendment and we are grateful to the Minister for listening, we believe that we have to go further. This is not the end by any means. In due course, I shall move Amendment No. 47 in place of the government amendment.

My Lords, I congratulate the Government on a considerable move forward in their Amendment No. 36. The amendment of the Liberal Democrats, Amendment No. 47, would be even better; none the less, I recognise the great improvement in Amendment No. 36. I refer to one element of it. Proposed subsection (2)(b) refers to the Children and Young Persons Act 1933 and uses the word “welfare”. It is about time that “welfare” was updated to be relevant to 2008. Section 1(1) of the Children Act 1989 specifies that the welfare of the child is paramount, as the noble Lord, Lord Thomas of Gresford, said, but it is interesting that Section 1(3) also provides a checklist on the way in which “welfare” is to be understood by judges and magistrates in the family courts. I am not suggesting that every item on that checklist would be appropriate for young offenders, but some would be. One of them is, for example,

“his physical, emotional and educational needs”.

The Government should, not necessarily in primary legislation—and I appreciate that I have not put down an amendment—but somewhere, provide something similar to the checklist in the Children Act to guide magistrates, in particular, and judges on how they should interpret “welfare”, whether that is done under Amendment No. 36 or Amendment No. 47. We would then know what welfare really means and give it the prominence and significance that it should have. It must not just be a word, but have real meaning. Somewhere that meaning should be elucidated, so that judges and magistrates can use and rely on it when considering sentencing.

My Lords, I associate myself wholeheartedly with everything said so clearly and so powerfully by the noble and learned Baroness, Lady Butler-Sloss. I suppose that the Children and Young Persons Act 1933, rather than the Children and Young Persons Act 1969 or the Children Act 1989, was selected because what is left of the 1933 Act is essentially criminal statute. The submission of the noble and learned Baroness is extremely powerful. The concept of the welfare of a child is indivisible. There is nothing wrong in taking a term out of what is essentially a civil statute—the 1989 Act. For those reasons, very respectfully, I completely support what has been said.

My Lords, I, too, am grateful to the Minister for tabling his amendment. I, too, feel that it does not go far enough and I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, for her contribution. Her contribution to all our discussions, given her background in the Family Court, has been invaluable and has given us an insight into how far the criminal justice part of dealing with children has moved away from the mainstream.

I want to speak, in particular, to Amendments Nos. 37 and 40 in my name and those of the noble Earl, Lord Onslow, and others, and I am grateful to them for adding their names. The noble Earl, Lord Onslow, and I tabled these amendments as a result of the study of the Bill by the Joint Committee on Human Rights, of which we are both members. In his absence, I shall briefly try to do justice to our argument once more.

The UN Convention on the Rights of the Child, to which we are party, says that in all measures imposed on children, the best interests of the child shall be paramount. The point of stating that in the convention is that children are different from adults. They are vulnerable, are not yet developmentally formed and are growing up, so we protect them. They are not allowed to marry until a certain age, go to war or drink. In its simplest form, that article in the convention applies also to the way in which we deal with those who have broken the law, are deemed to have broken the law or have done damage and harm to others. Nothing whatever anywhere in the convention suggests that a child puts him or herself beyond its terms by having been charged with a criminal offence, and in no country in the world does anyone claim that.

Therefore, the system for dealing with under-18s should be different because it should be shaped by those ideas. One way in which it should be different is by imposing measures that look to solutions to the problem—solutions that aid the development of the child to grow up into a law-abiding adult.

I am very grateful to the Minister for the Answer that he gave me yesterday to a Written Question. I must admit that I was astonished by the Answer. I was astonished, first, by the information in it and then I was astonished—and, indeed, ashamed—that I was not already aware of that information. I asked the Minister how many people under 18 were serving indeterminate sentences for public protection and the age of those people. Noble Lords may, or may not, be as surprised as I was to hear that 48 people under the age of 18 are serving indeterminate sentences for public protection and that, of these, 17 are aged 15.

Since the sentence has been available, of those under 18 sentenced to an indeterminate sentence for public protection, five have had a tariff of one year or less and 56 have had a tariff of one to two years. Therefore, I make the assumption—I hope, rightly—that their offences were not murder, rape and so on or offences that threatened life, as there are other provisions in the law under which they would have been sentenced for such crimes.

As of 31 January this year, not one of those 48 children had been released. That seems to be a very good example of why there must be a system of youth justice that puts the welfare of the child as the first priority. If we had such a system, I think that serious questions would be asked about the appropriateness of indeterminate sentences for public protection for 15 year-olds.

I want to end with an example. This morning, I chaired a meeting organised by INQUEST to launch a publication about women who die in prison. One of the speakers was Kirsty Blanksby. Kirsty was one of two sisters who came from a troubled background and caused a lot of trouble when she was a child. She got into the mental health system, went to a therapeutic community and there she was, sitting on the podium in Committee Room 9 this morning, addressing a meeting in the Houses of Parliament—a very fine, articulate young woman. Her sister Petra, in the same situation, got into the justice system. Kirsty is living a normal, full life; Petra is dead. She killed herself in New Hall prison just as she reached the age of 19.

I use that example to make the point again that putting the welfare of the child first is also putting the welfare of society first. Solving Kirsty’s problems was worth it for her and for us. I support the amendments.

My Lords, I agree with everything that has been said so far. I want to pick up on what the noble Baroness, Lady Stern, was saying. The figures for youth suicide in this country are an absolute scandal. The number of young people who commit suicide every year is equivalent to the numbers in a secondary school.

I prefer Amendment No. 47 to the earlier amendment as it shifts the balance towards responding to the many problems encountered by young people in our society which derive, one way or another, from a lack of love in childhood. That is the root of the problem, and the chaos in family life these days in our society feeds that. We see that from the news this morning about Shannon in Yorkshire and the family circumstances from which she has come. Also, the prevalence of child pornography in the news this morning illustrates the underlying culture that we face. As a bishop, I visit youth offending institutions and it is often chilling to see the way in which they operate. Young people are regularly sworn at—I could give more details. We need a change of culture in our approach to youth justice. I am grateful to the Minister for the move that he has indicated in his introduction to this government amendment, but I believe that Amendment No. 47 points us in a better direction.

My Lords, it would be unfortunate if my noble friend were to feel that he was being congratulated only by those on other Benches rather than from his own. I congratulate him very warmly on having introduced the amendment and I qualify my warm congratulations only by saying that the glass of enlightenment still is far from full—it seems slowly, drip by drip, to be filling rather than emptying—as my noble friend and his colleagues come to grips with some of the problems that we have discussed on this amendment and similar amendments.

I have two observations to make about the text of the amendment. There have been various references to the UN convention, our obligations to children and the importance of recognising that in our legislation. The amendment is significant because it talks not about “children” but about the “offender”. That is immensely significant because it leads on to suggest that we must move towards tailor-made systems that really examine the predicament and situation of the individual child caught up in what has happened and what he has caused to happen. We must see what will enable a child to become a rehabilitated, positive and creatively participating member of society, taking a responsible role in society.

Whenever we talk about welfare we need to expand that to spell out what we really mean because welfare could be a matter of protecting a child. I believe that the convention and any enlightened approach to these matters suggest that we must have a policy which is far more imaginative than simply looking at welfare. We need to look at the rehabilitation of the individual concerned.

I hope that my noble friend will forgive me for making those points, but within the context I thank him for having brought the amendments, because they help us to create a dynamic for moving forward. As we move forward, I wonder whether we shall more frequently look at what is happening north of the border in Scotland. I am impressed that, for 40 years, they have had working rather successfully in Scotland the panel hearing system, which looks not only at the particular individual offence of which the child is accused, but the whole situation of the child, of which the offence is a part, and what will be appropriate for helping to put things right.

It is true that that has so far operated only for children up to 16, but as I understand it, active consideration in Scotland is being given to the possibility of extending it to 18. I hope that, as we all consider the future, we are not too proud south of the border to learn from those who seem to be having some success in these respects north of it.

My Lords, I, too, thank the Minister for bringing forward the amendment, but, like other noble Lords, I have some reservations about its wording. I was interested to hear him mention the aim of the youth justice system. As a former soldier, I was brought up to believe that an aim must be absolutely clear and unequivocal, and give clear direction to all those who have to follow it. Unfortunately, the aim here is not clear, because it confuses preventing “offending” with preventing “reoffending”, which are not the same thing.

Given that the Act from which the provision was taken dates from 1998 reminded me of the anticipation with which we awaited the arrival of this Government following the statement of Mr Blair that he was going to be tough on crime and tough on the causes of crime. Appreciating that the causes of crime were in society, we hoped that that would mean a bringing of society into the resolution of the causes and therefore the prevention of crime. Soon after that, the new Government realised that the criminal justice system—the police, the courts, prisons and probation—were in a mess; they were not a united system; they represented rather more four warring tribes competing with each other for ever-diminishing resources rather than realising that their efforts, if aggregated, could produce a better solution that was much more geared to protecting the public than if they continued separately. So, very wisely, the Government gave them a uniting aim, which was to protect the public by preventing crime. I have no argument with this sentiment, but the word “prevent” is wrong in this context, because the criminal justice system does not click in until after a crime has been committed. That is not to say that there are not certain activities of the police which are geared towards crime prevention, but the criminal justice system, the investigation of the crime by the police, the sentencing and then the administration of the sentence by the prison and probation services are all about preventing reoffending, which is not the same thing at all. I notice that this aim for the youth justice system was given to it at exactly the same time. All that one has done is cross out the word “criminal justice system” and put “youth justice system” and given it the same aim: preventing reoffending.

At the same time, I was looking at the aim of the Prison Service, which is,

“to keep securely those committed by the courts, to treat them with humanity and to help them to lead useful and law-abiding lives".

Here my background as a soldier came into play and I realised that there was not one aim in that but three, and you cannot have three aims. Security is put first, which is why security seems to run everything. In fact, if we are talking about preventing reoffending, helping people to live useful and law-abiding lives should come first, with the qualification that they must not be allowed to escape and must be treated with humanity. My noble friend Lady Stern and the noble Lord, Lord Judd, made the point that what is missing from that aim is that it should be in the interests of the child. Saying that the aim of the youth justice system is to prevent offending, which it is not, is missing that the aim of the system is to help young people to live useful and law-abiding lives and to rehabilitate them using methods that are appropriate to them as children. I hoped that, after listening to us, the general spirit of making children count would have been reflected in revised aims and principles for the youth justice system that would be put in the Bill.

My Lords, we have just listened to a very profound contribution, and I cannot sensibly add to it. Alone among those who have contributed to the debate, I shall look in a little more detail at the new clause inserted by Amendment No. 47, which has been tabled by the noble Lord, Lord Thomas of Gresford. As I understand it at the moment, I do not share the general view that it would be better than government Amendment No. 36, which I welcome. I do not know how the court, seeking to follow the guidance that it gives, could be expected to understand what it is supposed to do. The new clause states:

“It shall be the principal aim of the youth justice system to promote the welfare of children and in so doing—

which seems to me to be a syntactical infelicity—

“have particular regard to the need to prevent offending (including reoffending).”.

What should the court gain from the word “particular”? Is it intentional that there is no reference to the reform and rehabilitation of offenders, the protection of the public or the making of reparation by offenders to persons affected by their offences? All those are to be found in Clause 9(4). The new clause proposed would be a source of confusion for a court, and I genuinely look forward to hearing what the noble Lord will say about that to dispel my confusion, if he winds up on his proposed new clause.

My Lords, I, too, thank the Minister for his well intentioned and well received attempts to meet the concerns expressed by a number of noble Lords. Despite what I heard from the noble and learned Lord, Lord Mayhew, I still feel that the phrasing of Amendment No. 47 better reflects what one would like to see happening than the amendment tabled by the Government. Taking the point made by the noble Lord, Lord Judd, we are still talking about children and young people. The main aim is that they are treated as such, whether we are thinking about prevention, paying back to society or whatever. They come from the most deprived backgrounds, whether they have been subjected to ill treatment or just to inadequate treatment and parenting. It was, above all, the comments made by my noble friend Lady Stern that made one concentrate on this issue.

The very fact that that huge number of children, some as young as 13 or 15, should be serving indeterminate sentences, which may be short in theory but are likely to continue for a considerable time, is horrifying. We also know from reports by the Chief Inspector of Prisons about growing concern about self-harming. In 2004-05, there were approximately 25 incidents per week of children self-harming. That is not sensible; it is not the right way to be dealing with children and young persons, so I hope that we can look at this again.

My Lords, I had not intended to intervene, but I support very strongly what my noble friend Lord Ramsbotham said about the confusion in the statement of aims contained in Amendment No. 36. The more one thinks about it, the more one realises how confused that statement is. I am sure that it could easily be put right, but it is of the greatest importance that we should know exactly the aim of the youth justice system and not confuse those two very different things: offending and reoffending.

My Lords, perhaps I may add just a note to what has been said. I was very moved by the contribution of the noble Baroness, Lady Stern, and the story that she told of the two sisters, and by the reference of the right reverend Prelate to the lack of love. Rehabilitation and help for children should be the dominant features of any measures that we introduce. The degree to which children are affected by the absence of love is dramatic. We must all have seen it in our own lives: a family in which love appears to be absent.

I turned on the “Today” programme as I drove in today and heard about internet communications between very young children who are putting in the public arena information about how they live, what they look like, and so on. The plea is being made that parents should intervene to protect the children. We have the desperate situation of unloved children in houses and households where there is no room. There is no table at which anyone ever has a meal; and there is never a collective meal. The degree of deprivation is so intense. We ought to be aware of that all the time as we think of the people we are dealing with—these miserable, unfortunate children aged 15, languishing in some prison with an indeterminate sentence. What is their background? What terrible upbringing have they had to lead to that?

My Lords, in considering these clauses in Committee, your Lordships will have heard one of the most distinguished debates that has ever taken place in your Lordships' House, greatly enriching the pages of Hansard. It is a testimony to the self-discipline of all your Lordships this afternoon that your Lordships have restrained yourselves from repeating all those matters, but have taken them as a backcloth to the observations made on the amendments today.

What underlay those debates was the concern about the failure to give welfare its proper weight in the youth justice system. We know, to some extent, why that happened. Following Section 44 of the 1933 Act—a remarkable achievement for all those years ago—and then our international commitments to the United Nations convention, we had this curious clause in the 1998 Act, which seemed to retrace our steps all the way back to the 1920s and before. Ever since then, we have been striving to work our way back. The victim of all this has been the welfare of the child.

One has seen this outlined in so many ways. We have seen how children in trouble with the law are much more likely to have grown up in an environment of poor parental supervision and a lack of discipline—a factor that has been virtually ignored by the law in the past 10 years. We have seen how there are all too few opportunities for children in custody to get the kind of rehabilitation that they need in order to re-enter the world with a reasonable chance of not reoffending. I particularly remember the graphic incidents described by the noble Baroness, Lady Falkner, in which there have been serious breaches of human rights in young offender institutions.

This balance desperately needs to be redressed, which is what the three non-government amendments are about. I congratulate the noble and learned Baroness, Lady Butler-Sloss, as so many other noble Lords have done, on saying right at the beginning how pleased she was that the Government have moved on this matter. If I may say with great respect to the Minister, there was no doubt that the text in the Bill simply did not conform to our international obligations, and I am delighted to see that the noble Lord has come up with a text which is a substantial improvement to what was in the original Bill.

We are presented with three different texts, which all have their merits. The great merit of Amendment No. 47 in the name of the noble Lord, Lord Thomas of Gresford, is that he confronts Section 37 of the Crime and Disorder Act 1998 head on in a way that none of the other amendments does. That is extremely attractive because the law began to go wrong following our United Nations commitments. It is therefore right that it should be confronted.

I share the concerns expressed my noble and learned friend Lord Mayhew of Twysden about proposed subsection (2) in Amendment No. 47, but my biggest hesitation about the amendment, which I do not have about either of the other two, is that it is not clear who should promote the welfare of the child under the amendment. Under Amendments No. 36 and 37, it is quite plain that the duty to protect the welfare of the child is on the court. The best that one can say about Amendment No. 47 is that the duty is on the system, but which part of the system will be responsible? I suppose the noble Lord, Lord Thomas of Gresford, will say that all parts of the system will be responsible, from the prosecution all the way to the moment when the child finally walks free from whatever institution in which he or she has been incarcerated. I say that not because I in any way question the spirit behind the amendment. Anyone listening to the noble Lord can be in no doubt whatever that he is coming at this problem from exactly the same place that I do; but as your Lordships will have to make up your minds this afternoon about what to do about the amendments, those, for what they are worth, are my hesitations about Amendment No. 47.

Amendment No. 37, in the names of my noble friend Lord Onslow, the noble Baroness, Lady Stern, and the noble Lords, Lord Judd and Lord Ramsbotham, has many attractions. It would place responsibility squarely on the shoulders of the court, which must be right. The only real distinction between Amendments Nos. 36 and 37 is one of emphasis.

When thinking about this, I have been in some considerable difficulty. The emphasis in Amendment No. 37 is much more strongly on the welfare of the offender than on the need to have regard to preventing offending or reoffending. I think that the noble Lord, Lord Ramsbotham, would agree that some of the criticisms that he made about offending and reoffending in Amendment No. 36 also apply to Amendment No. 37. The principal distinction between Amendments Nos. 36 and 37 is the weighting. The Government just get over the hurdle in Amendment No. 36. I am not very happy about the principal aim, but I have to confess that the court must have regard to the three factors equally. It is clear that the shackles that so heavily anchored welfare in the text of the Bill have been successfully unlocked.

My Lords, the noble Lord has in his remarks pointed the way to the difference between Amendments Nos. 36 and 47. In Amendment No. 36, the court is the sentencing court. The principal aim of the youth justice system is a broad aim that affects every agency dealing with young offenders. I am sure that he would agree with that, as he has already pointed the way towards it.

My Lords, I hope that in making my observations about the noble Lord’s amendment I paid due tribute to the spirit that lay behind it. We are dealing with a sentencing system. Although welfare should infect every part of the youth justice system, for the purposes of this Bill the crucial institution is the court. Therefore, the judges must be absolutely clear what obligations lie on their shoulders, which is why I made my observations about the importance of having someone specific. I am sure, again, that the noble Lord, Lord Ramsbotham, with his experience in another existence, would agree that personal responsibility above all is central. I believe that it is central that the Bill, because it is about sentencing, points to the sentencing authority, which is what Amendments Nos. 36 and 37 do.

My other concern about Clause 9 lies in the purposes subsection. As I think I observed in Committee, there is nothing to distinguish the purposes of sentencing under Clause 9, which are referred to in proposed new subsection (2)(c), from the purposes of sentencing adults. I do not know whether at this stage the Minister would care to look at that again, but it underlies many of the observations made by many of your Lordships. I pick out again the noble Baroness, Lady Stern, only because, in Committee, she led the debate on this issue. Time and again, she has been at pains to say that children are different from adults. Therefore, it is very difficult to talk about the purposes of sentencing for children in a way that is identical to the purposes of sentencing for adults. I would very much like the Minister to say something about that.

Having made those observations, I should like once again to congratulate the Minister on making—given the rhetoric of the Government in another place—a remarkable advance in sympathetic thinking on this most important matter of all in our justice system.

My Lords, I echo the noble Lord, Lord Kingsland, by acknowledging the quality of debate both in Committee and today in reflecting on our discussions and taking the argument forward. We are clear on the considerations that will now come to your Lordships’ House if these amendments are put to the vote. I also thank particularly the noble Lord, Lord Thomas of Gresford, for his generous welcome for the government amendment, although clearly he thinks that it does not go far enough; nevertheless, his welcome is appreciated. I have not seen the film “Parenthood”, although it sounds interesting. Those of us who are parents can always learn more. The use of the phrase “do no harm” reminds me of the injunction made by Florence Nightingale to the health service: “First, do no harm”. I suggest that that is not a bad principle for many public services.

I accept that we are talking about those who are in many cases very troubled young people. As the noble Lord, Lord Neill, and other noble Lords graphically illustrated, their lives are often wretched, short of love, deprived and open to many temptations. The internet was mentioned. I agree strongly with the sentiments expressed, especially in relation to extreme pornography, which we shall debate later. Equally, it is remarkable how many young people from such backgrounds do not enter a life of crime. In our consideration of these matters, we have to ensure that the system as a whole reflects this fact.

We warmly welcome the expertise of the noble Lord, Lord Ramsbotham, in this House. However, I think that it is useful to have the words “prevent offending” as well as “prevent reoffending”, because that underlines the holistic aim of the whole criminal justice system. I am afraid that I use health service analogies from time to time, but it is rather like the noble Lord saying that the only responsibility of a hospital is to cure sick people. I would argue that a hospital not only provides a sickness service but forms a part of our health service. It is important that we are able to reflect on the overall aims of the system.

We are all concerned about the number of young people entering custody and some of the outcomes; again, I reflect the concerns about self-harm among those young people. The noble Lord, Lord Thomas of Gresford, mentioned restraint. He will know that we are undertaking a review of the issue following the debate on the statutory instrument. Clearly, we are keen to see the outcome of that review in the next few months.

However, we should not ignore the improvements that have been made in the youth justice system. There is much greater co-ordination and the youth offending teams are doing a good job. Yes, they could do better, and the annual report of the inspection of their work indicates that there are areas where improvements need to be made, but we should not ignore the advances that have been made or the additional resources that are being put into education. I have seen for myself in a number of places the real dedication of those working with young people serving in custodial settings to improve their lot and their lives.

The youth crime action plan is due to be published in the summer. It will set out cross-government arrangements for tackling the level of crime and reoffending rates while also recognising the significant personal challenges faced by young people and the fact that the system has been criticised for not going far enough to meet their needs or protect their welfare. The plan will pick up and develop the very ideas that my noble friend Lord Judd and the right reverend Prelate have talked about today, but it must also consider public concern about youth crime.

On welfare, to which we devoted much discussion, I welcome the intervention of the noble and learned Baroness, Lady Butler-Sloss, with all her experience. Part of the job of the courts in taking account of pre-sentence reports will be to assess welfare. The pre-sentence report will be based on what is called an “asset assessment”, which will take account of any existing child protection plan, pastoral support, individual education plan, care plan, children in need assessment and pathway plan. So the mechanism is there.

On the noble and learned Baroness’s comments on whether the courts understand welfare, one would think that they ought to. She says that more must be done and, given all her experience, I accept that. We will ask the Sentencing Guidelines Council to look at the provision of youth justice in the Bill. I will, of course, ensure that in doing so it will take account of and, I hope, embrace some of her comments.

There can be no doubt that welfare must be a key consideration for young offenders. That is the purpose behind government Amendment No. 36. However, we must also look beyond the needs of the young offender and address the needs of their victims and the public. That is why we must ensure that the courts consider the need for reparation and financial compensation. We must acknowledge that the public also expect an offender to be punished for their wrongdoing. The public may be accepting of the view that a young person should not be punished as severely as an adult but they are unlikely to accept that punishment should not be considered at all.

There has been great discussion on the convention, what it means and the definition of a primary consideration. I am grateful to the noble Lord, Lord Kingsland, for his remarks on the drafting of the amendment, which he said just about passed muster; I will accept that. In our work between Committee and Report, we have looked at volume 1 of the Legislative History of the UN Convention on the Rights of the Child. It says that,

“a number of delegations questioned whether the best interests of the child should be a primary consideration in all actions. It was generally noted that there were situations in which the competing interests, inter alia, of justice and of the society at large should be of at least equal, if not, greater importance than the interests of the child”.

It says that, in the light of those concerns, it was agreed that the convention should refer to the child’s best interests as “a” primary consideration, to reflect that there are others as well. That is why we have been resistant all along to the suggestion of their being “the” primary consideration and why our amendment is constructed as it is.

I have noted with interest the comments of the noble Lord, Lord Kingsland, on the purposes of sentencing in the clause, which are not to be amended by the government amendment. I do not think that there is anything untoward in the purposes of sentencing as expressed in the Bill, albeit that they are directed at young people. They seem to be entirely reasonable matters that should be considered, although I have no doubt that we could have a further debate on them.

In conclusion, in resisting the other amendments that have been tabled, and in hoping that the House will accept the government amendment, I re-emphasise that we fully understand the importance of the welfare of the child, of ensuring that it is fully considered, understanding some of the circumstances in which young people have got into trouble and wanting to do everything that we can to get them out of trouble. We also think that wider issues will be concerned with the criminal justice system. That is why I hope that the government amendment will commend itself to noble Lords.

My Lords, on that last point, the Government would have made their task on the purposes substantially easier if, in proposed new paragraph (c), they had put, “the purposes of sentencing mentioned in subsection (4) (so far as it is not required to do so by paragraphs (a) and (b))”. That would have expressly incorporated the welfare factor into the purposes; then the Government would have met my criticism entirely. Perhaps the noble Lord might like to think about that.

My Lords, I am ever eager to ponder the wisdom of the noble Lord, Lord Kingsland. I followed what he said. All that I would say to him is—I think that he is saying the same thing—that you cannot look at subsection (4) in isolation. It has to be read in conjunction with the amendment. He will say that I am making his case for him; I do not intend to, but I understand what he is saying and I agree that we need as much clarity as possible here. The referral for sentencing guidelines will be one way in which we can do that.

On Question, amendment agreed to.

[Amendment No. 37 not moved.]

38: Clause 9, page 7, line 14, after “of” insert “financial compensation or other appropriate”

The noble Lord said: My Lords, this amendment came upon me a little more swiftly than I expected; I apologise. This is a short matter compared to previous ones or compared to most matters in the Bill. I have only brought it back to your Lordships because of the very generous offer that the Minister made at the end of his reply to me in Committee:

“I am happy to take away the provision to see whether anything more could be done to encourage more use of the order in the future ”.—[Official Report, 6/2/08; col. 1134.]

The amendment is about financial compensation orders. The view that I advanced in Committee was that this could be an effective way of impressing on offenders the significance of their crime. We are talking here about fairly low order offences; primarily but not exclusively vandalism. It would be a way of bringing home the reality of the damage that is being done by vandals to law-abiding householders and shopkeepers. I went on to express my surprise that only limited use appeared to be made of the orders in the courtroom.

The Minister, fairly, came back to me and made a number of observations. First, he said that a provision in the Bill was not necessary because adequate powers already existed under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000, where it is clear that a compensation order can be made in favour of a victim. Secondly, he said—and again I entirely accept the reason why the Government made this observation—that quite often the courts take the view that it is so unlikely that the offender would be able to pay that passing such a sentence would in effect be futile. However, the Minister concluded that, because he himself undoubtedly accepted the principle that lay behind the amendment, he would give the matter some thought and come back to your Lordships on Report. That is why I retabled this amendment. I beg to move.

My Lords, I wonder whether there would be a person under 18 who had any money unless they were drug dealers—in which case they will probably have spent it. I am thinking particularly of couriers, because they are supposed, on some housing estates, to make a lot of money.

I had the unhappy experience of being twice burgled by an 18 year-old who had once been the friend of one of my sons and therefore knew the layout of our house. She was ordered to pay £450 compensation by magistrates, at £10 a week. She paid twice, I think; I got £20. Eventually the probation officer got in touch with me and asked if I would mind if the magistrates set that order aside. I said I could not understand why they had made it in the first place. Although I understand that this would give all the powers to the court for under-18s, I wonder whether anyone has ever come across someone who had the money to pay compensation.

My Lords, I have had an opportunity to consider this between Committee and Report. I am grateful to the noble Lord, Lord Kingsland, for raising the matter with me, and to the noble Baroness, Lady Butler-Sloss, for her interesting comments. I am afraid I cannot take the debate much further than at our last discussion. In 2005-06, the figures I have show that 15,492 compensation orders were made out of 96,000 sentences made in court. That suggests to me that courts find compensation orders are appropriate in a significant number of cases. It also presumes that they consider it feasible for the young person to pay that fine—not, I hope, through criminal practices because clearly that would go against the spirit, and indeed the letter, of the law in terms of the purpose of the criminal justice system.

The courts have discretion here, although they also have to give reasons for not making an order when they are empowered so to do. I have no hard evidence that this is not working satisfactorily. I agree with the principle of compensation where it is appropriate. In view of this interesting discussion, I undertake to discuss the matter with the Youth Justice Board to see whether, either through guidance or through other actions, more needs to be done in this area.

My Lords, I could not have asked for a more generous reply from the Minister. I am most grateful to him, and of course I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

39: Clause 9, page 7, line 24, leave out “226 or 228 of this Act (dangerous offenders)” and insert “226(2) of this Act (detention for life for certain dangerous offenders)”

On Question, amendment agreed to.

[Amendment No. 40 not moved.]

41: Clause 9, page 7, leave out lines 35 to 42 and insert—

““(1A) Subsection (1) is to be read with paragraphs (a) and (c) of section 142A(2) of the Criminal Justice Act 2003 (which require a court dealing with an offender aged under 18 also to have regard to the principal aim of the youth justice system and the specified purposes of sentencing).

(1B) Accordingly, in determining in the case of an offender whether it should take steps as mentioned in subsection (1), the court shall also have regard to the matters mentioned in those paragraphs.””

42: Clause 9, page 7, line 43, leave out subsection (4)

43: Clause 9, page 8, line 1, leave out “that Act” and insert “the Crime and Disorder Act 1998 (c. 37)”

On Question, amendments agreed to.

44: After Clause 9, insert the following new Clause—

“Secure accommodation for children and young persons convicted of a criminal offence

(1) After section 89 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) insert—

“89A Detention orders

(1) This section applies where a child or young person (under 21 years of age) is convicted of a criminal offence and a court makes an order that that child or young person should be detained.

(2) A local authority must provide suitable premises in which that child or young person can be securely accommodated and appropriate care and support provided.

(3) The Secretary of State may by regulations make provision about the provision of suitable premises under subsection (2).”

(2) In section 27(1) of the Criminal Justice Act 1984 (c. 58) (remand of persons aged 17 to 20) omit the words—

(a) “, if the court has been notified by the Secretary of State that a remand centre is available for the reception from the court of persons of his class or description, ”, and(b) “and, if it has not been so notified, it shall commit him to a prison.”(3) In section 43(2) of the Prisons Act 1952 (c. 52) (remand centres, detention centres and youth custody centres) omit paragraph (c).

(4) For section 106 of the Powers of Criminal Courts (Sentencing) Act 2000 substitute—

“106 Interaction with sentences of detention in a young offender institution

(1) Where a court passes a sentence of detention in a young offender institution in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—

(a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.(2) Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention in a young offender institution, the order shall take effect as follows—

(a) if the offender has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.(3) Subsection (1)(a) above has effect subject to section 105(3)(a) above and subsection (2)(a) above has effect subject to section 116(6)(b) below.

(4) Subject to subsection (5) below, where at any time an offender is subject concurrently—

(a) to a detention and training order, and(b) to a sentence of detention in a young offender institution,he shall be treated for the purposes of sections 102 to 105 above and of section 98 above (place of detention), Chapter IV of this Part (return to detention) and Part II of the Criminal Justice Act 1991 (early release) as if he were subject only to the one of them that was imposed on the later occasion.

(5) Nothing in subsection (4) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them.

(6) Where, by virtue of any enactment giving a court power to deal with a person in a way in which a court on a previous occasion could have dealt with him, a detention and training order for any term is made in the case of a person who has attained the age of 18, the person shall be treated as if he had been sentenced to detention in a young offender institution for the same term.”

(5) Section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of detention in a young offender institution, custody for life, etc.) is repealed.”

The noble Lord said: My Lords, in moving this amendment, I remind noble Lords that I speak as former national president of the YMCA which of course works very much in this area. I should also like to place on record my warm appreciation to those who put their names to this amendment. Indeed, I have heard that more noble Lords wanted to put their names to the amendment than were able to do so, which illustrates the strength of feeling on this issue in the House.

The amendment is quite complicated, legally—I recognise that—and as I said in Committee I am very grateful to those with good legal minds who told me how it should be phrased. I was happy to accept their advice. The purpose of the amendment is to move to a situation in which no young person or child is put into custody unless special purpose-provided accommodation is arranged by the local authority, wherever it may be.

Some have argued that to say that a child must never be put into custody unless those purpose-provided arrangements are available is pushing it too far, because there will always be exceptions. That sounds a very reasonable observation, but my experience is that it is a very dangerous one. As long as one recognises the possibility of exceptions, there will always be a tendency for people to rationalise that a particular case is an exception and that therefore it is necessary to put a child into the wrong kind of custody. That is sometimes just from inertia and sometimes just out of convenience. We have reached the stage when we must say that it is never going to happen—so we need to make sure that the alternative proper accommodation is available. Other countries have done this, and I cannot see why we have to lag behind.

Article 37 of the UN Convention on the Rights of the Child states that custody should be a measure of last resort, and for the shortest possible time. I do not want to pull punches this afternoon, because it would not help my noble friend if I did. Our profligate use of custody does not conform to that principle and, too often, in effect, still constitutes a form of state-inflicted violence on young people, victimising children. With some notable and imaginative exceptions, for which prison staff and the non-governmental organisations involved cannot be too highly commended, I argue that custody as it currently operates is just not achieving positive results. The facts speak for themselves: custody does not prevent reoffending or help to make our communities safer. Eighty per cent of under-18 year-olds sentenced to custody reoffend within two years, while 30 per cent of children released from STSs reoffend within one month. It does not provide respite; custody moves crime but does not stop it. Prisons holding young people are frequently violent, drug-ridden centres of crime. Between 2003 and 2006, 18,000 assaults were recorded inside young offender institutions.

It is no exaggeration to say that custody kills children. In 2007, three 15-to-18 year-olds and four 19-to-20 year-olds took their own lives in prison. Since 2000, 79 people aged under 21 have committed suicide in prison. More than 1,000 incidents of self-injury by juveniles in prison were recorded in 2006. I cannot believe that I am alone in asking what kind of society we are living in that we just drift along accepting this nightmare and what is happening under our noses.

Prisons do not work for young people. There is very little exercise, activity or education, even in the juvenile prisons that have had huge additional funding. In Feltham, for example, a new education block was built, but it can accommodate only half the juveniles at any time. In Brinsford Young Offender Institution, the Chief Inspector of Prisons found that children never went outside for exercise, and that prison holds 473 boys aged 15 to 21.

The training and educational levels required of prison officers remain fairly minimal. I do not in any way want to underestimate the daunting task with which they are confronted, nor do I want to underestimate the heroic efforts of some prison staff in dealing with young people, but in this general context, it is disturbing to note that prison officers recently asked for stays because they cannot control children. I hope that I can take an example from my own experience in education: it was from a much more primitive age, but in a first-class school to which I was privileged to go. Some masters used the cane and some taught. Perhaps that is an oversimplification, but discipline problems did not arise with some members of staff who managed to engage the attention and participation of the young. Others had to rely on deterrents to encourage the young to learn. Similarly, it is worrying that the first thing that happens to a young person on reception to prison is a forcible strip search.

Secure training centres exacerbate the problem. I question whether there are not real moral issues involved in the concept of running children's jails for profit. What are children's jails about—profit or the very things that we discussed at length and in depth on a previous amendment? Whatever the arguments in that context, secure training centres clearly fail to solve the children's problems. They have had serious incidents of disorder and death, and they rely on excessive use of physical violence by staff.

I am sorry if I sound irate about this issue, but I am irate about it. I feel, powerfully, that as a civilised society, the time has come to take a complete change of direction. We have to say that this kind of custody is never going to happen any more. Until we say “never” and therefore have to introduce alternative purpose-built accommodation, that will not happen. And, please, do not let anyone in the tabloid media or elsewhere say that what is being argued is the soft option. It is the tough option. What has too often been called for by the ill-informed media is something which in effect makes a bad situation worse, causes more crime in society, further distorts the odds against the young and is totally counterproductive. In the spirit of all that my noble friend said in introducing the government amendment earlier, I profoundly hope that he can be really reassuring to the House this afternoon. I beg to move.

My Lords, I should point out, in the first line of subsection (2) of the proposed new clause, that it should read Criminal Justice Act 1948 rather than 1984.

My Lords, my reason for supporting the amendment is contained in two phrases in the proposed new clause, the first in subsection (1)(1) and the second in subsection (1)(2). In the first, the noble Lord, Lord Judd, includes the term “under 21”, whereas we have mostly been talking about juveniles under 18. In the second, he talks about suitable accommodation. He has already given examples of totally unsuitable accommodation.

I could bore your Lordships with endless descriptions of totally unsuitable accommodation, unsuitable treatment and unsuitable conditions for young offenders which I have seen round the country. In many cases, instead of designing suitable accommodation for young people, existing accommodation has been “adapted”—so-called—for their use. I suppose that the classic example of total inappropriateness is the old convict penal establishment at Portland built at the beginning of the 19th century. It is about as unsuitable for young people as anywhere could be. Feltham, one of the few places that was purpose-built, was built to a design taken from America and suitable for a warm climate in California, not for the spaces beside Heathrow Airport.

The other problem is that those between 18 and 21 are totally ignored throughout the penal system. A juvenile system under the Youth Justice Board looks after those under 18, and the prison system is designed for adults, but those between 18 and 21, called young offenders, fall between the two stools. No one is responsible for them within the prison system. They come under the guidance of area managers round the country who have responsibility for many different kinds of prisoners. In young offender institutions that contain both juveniles and young offenders, referred to as split sites, most of the facilities are given to the juveniles, because the Prison Service is under contract to the Youth Justice Board to provide for them, and the 18-to-21s, of whom there are many more, lose out. I suppose that one of the classic examples is Brinsford, which the noble Lord, Lord Judd, mentioned.

We have an opportunity to do something about this. As I mentioned in Committee, one opportunity is a design called an academy—a term deliberately chosen in view of the academies being produced by the education department. It is run in the East End of London by an organisation called East Potential. This organisation is proposing a new site consisting of a custody centre—a foyer; a place that holds young homeless people; and a combination of work, education, drug treatment and other suitable facilities, all on site and designed to cater for the needs of a particular catchment area under the guidance of a local authority. It has the advantage that young people will not be taken too far from home. Once they get into the hands of the criminal justice system they will receive continuous mentoring, tutoring, teaching, training or whatever. Furthermore, the local area will be involved in looking after its own as opposed to the scourge of young people, particularly 18-to-21 year-olds, being sent all over the country to where there is a bed rather than to where they should be treated.

I very much hope that, in the spirit in which the Minister has listened to and taken on board some of the points made so far on the Bill, he will take on board the need to do something about this group of young offenders to whom the noble Lord, Lord Judd, drew attention.

My Lords, I was in the queue of noble Lords who wished to add their names to the amendment and I am very pleased to have been lucky enough to do so as it deserves support. It refers to accommodation and appropriate care and support. Recently I have tabled Written Questions on the number of mental health experts available to treat young people in secure establishments but the Government were unable to tell me how many there are. I shall pursue the matter but it indicates that there is still a very long way to go on this issue.

Since we debated this in Committee, Anne Owers published her shocking report on Oakhill, which deals with some of the matters to which the noble Lord, Lord Judd, alluded. She discovered that there was a 59 per cent turnover of staff. The noble Lord, Lord Judd, asked what we are running these homes for. Is it to make a profit or to rehabilitate young people? G4S obviously does not have the same inspection system as a local authority establishment, and if it did it would have been taken into special measures, which is, I think, what Anne Owers’s report was aiming to do. A local authority establishment would never have got away with doing nothing after four critical inspections.

The noble Lord, Lord Judd, made the important point that the amendment must be fit for purpose. About three or four months ago I went round Reading Young Offender Institution which has the historic interest of containing Oscar Wilde’s cell. However, it should be turned into a museum as it contains very inappropriate accommodation. Conditions are very hard for the dedicated staff who have established innovative training systems. They are clearly working under incredible duress in surroundings in which it is difficult to produce the results they want. I shall say no more as the noble Lord, Lord Judd, has said it all. The figures reveal a shocking increase in the number of young people who are locked up. I am pleased to support the amendment.

My Lords, I, too, support the amendments and give the example of what went right when two young children were placed in secure accommodation and remained there until they were aged 18 and 19 respectively. I refer to the Bulger killers, Thompson and Venables. I dealt with an aspect of their case and saw the reports on them. They had been very well cared for in two separate places of secure accommodation where they were able to learn of the appalling crime they had committed, to understand it and to move on from it with a great deal of help from, among others, psychiatrists, whose reports I saw. One has only to consider what might have happened to them if they had been slightly older, but well under the age of 18, and had gone in to one of the institutions that the noble Lord, Lord Ramsbotham, told us about today and in the past. With any luck, they will, under new identities, live respectable and responsible lives. Their rehabilitation was made possible in good, secure accommodation units.

My Lords, I very much support the amendment. I would have added my name to it, but it was too popular and there was no space left. It provides a welcome opportunity to talk about the inappropriateness of most of the accommodation in which children and young people are held and to see if we can persuade the Minister that we can do better, given our recent, small successes.

I thank the noble Lord, Lord Judd, for the way that he moved the amendment and for what he said about Brinsford. I am grateful to the Printed Paper Office, which always sends me the reports of the Chief Inspector of Prisons. When I do not have time to read all of the reports, I always look at the sections on time in the open air. I have to tell noble Lords that, so far, one in 10 establishments, including those for juveniles, allow time in the open air every day. That is astonishing, considering that one of the standard minimum rules for the treatment of prisoners is that everyone shall have time in the open air every day.

Our starting point is that we are discussing vulnerable young people. The starting age for placement in an institution of this nature is, I think, 12. If I am wrong, I am sure that the Minister will tell me. About 200 of the juveniles who are locked up are put in local authority secure children’s homes that are run according to childcare principles, as my noble and learned friend Lady Butler-Sloss has told us. The rest we put in prison-like establishments that are run either by the Prison Service, according to its rules, or in secure training centres.

The Joint Committee on Human Rights very recently published a report on the use of restraint in secure training centres. The committee had tried to get hold of the training manual that set out how to train members of staff to restrain children in those centres and young offender institutions. That training manual is secret; but following pressure from the Joint Committee, a redacted version can be seen in the Library. The headings of some of the redacted sections are very interesting and I shall bring them to the attention of noble Lords. The Joint Committee’s report stated:

“We were alarmed by the headings of some of the redacted sections, namely ‘hair grab’, ‘strangle against the wall’, ‘strangle on the ground’, ‘kicks standing’ and ‘kicks on the floor’. It was not possible to ascertain the content of these sections”—

clearly because they were headings followed by plain white space.

One of the secure training centres that trains people according the manual is called Oakhill. The Chief Inspector of Prisons and Ofsted recently inspected it, and I am grateful to the noble Baroness, Lady Miller, for referring to the inspection report. The chief inspector said:

“For some time, Ofsted and the YJB have been concerned about the centre, particularly the lack of sufficient order and control, without which the safety of both children and staff cannot be assured. As a result, in July 2007 the YJB limited the number of children at the centre to 56 and required the contractor to put in place a recovery plan”.

Therefore, 56 of the children locked up in an establishment needed a recovery plan. The Youth Justice Board asked the prisons inspectorate to inspect and the chief inspector concluded:

“Sadly, our inspection confirmed that staff at Oakhill continued to struggle to maintain order and to control safely the children in their care ... The scale of the centre’s difficulties was illustrated most starkly by the staggering levels of use of force by staff, often in response to the all too frequent assaults by children on staff and on other children. In the nine months before the inspection, force was used 757 times. On 532 occasions”—

that is, within nine months—

“this involved the highest level of restraint, requiring at least three members of staff, with one holding the child’s head. Without a sharp reduction in these statistics the centre cannot pretend to be anywhere near the recovery required by the YJB”.

The chief inspector ended by saying:

“We had some confidence that the new direction could, given time, turn the centre around, but this required the YJB to provide certainty about its future, which was … unlikely while matters remained at such a low ebb. It might be more realistic for the YJB to empty the centre briefly, so that it can be re-launched with a properly trained and reinvigorated staff”.

I hope the Minister will tell us that it was emptied but I fear that he will not.

Finally, perhaps I may raise a point about Section 34 of the Offender Management Act 2007, which some of us who were involved in the passage of that legislation will remember. Section 34 gives the Secretary of State power to specify by order types of custodial provision in which a detention and training order may be served in addition to young offender institutions, secure training centres and local authority secure children’s homes. Can the Minister tell us whether that power is being used, how often it has been used and whether it has led to new and interesting therapeutic interventions for young offenders? If it is being used, it could be a basis for implementing this amendment, which I very much support.

My Lords, I put my name to this important amendment early on, and it was clear that there was a rush to back it. The noble Lord, Lord Judd, has spelt out the basis for it. It deals with children and young people right the way up to the age of 21 and, above all, it states that there should be specific appropriate accommodation for them. In certain cases, that accommodation would certainly have to be restrictive. Most importantly, we are beginning to see a change of mind about what is appropriate when dealing with young people, and not just among those of us who have been following this issue in one way or another as magistrates or members of the judiciary and so on. People are generally beginning to realise how totally ineffectively we deal with young people who have been damaged. As we heard, eight out of 10 of them reoffend within two years.

My noble friend Lady Stern described the sort of activities that are used to restrain youngsters, which are totally appalling and totally ineffective. It is very worrying that we still do not have a government reaction and that there has been further delay because wider research is apparently needed before the Government can come to any conclusion. Smaller units, relevant to the local community, are being recommended, as my noble friend Lord Ramsbotham emphasised, which seems to fit the pattern of what the Corston report argued for women offenders and which would clearly fit this pattern. It is also noticeable that not just the parliamentary Joint Committee on Human Rights was making those points and the international Centre of Crime and Justice Studies, but also the Local Government Association. It is terrifying that 40 per cent of the boys, but 67 per cent of the girls have serious mental health problems. What are we doing about it? We have heard it all and it has been extremely saddening. I look forward to the Minister's reply.

My Lords, like our first debate, this has been an extraordinarily interesting and well informed debate. My noble friend Lord Judd said he thought he was irate, but I have always regarded him as a great humanitarian. I have very much welcomed the interventions that he has made in debates on this Bill in the light of that humanitarian concern and, of course, his wide experience. I well understand the concerns expressed by noble Lords. The noble Lord, Lord Ramsbotham, speaks from a wide experience of what he describes as unsuitable accommodation for young people. I was also very interested in the comments of the noble and learned Baroness, Lady Butler-Sloss, about how there is potential in the system to help young people, however grievous their crime might have been; the crimes to which she referred were indeed grievous. I agree that custody must be a last resort. Some major challenges lie ahead for the youth justice system as a whole.

The noble Baroness, Lady Stern, raised a very interesting point on the numbers in custody. The figures that I have for those in custody at any one time in the under-18 custodial estate are as follows: 10-to-17 year-olds in secure children's homes, 215; 12-to-17 year-olds in secure training centres, 233; 15-to-17 year-olds in under-18 YOIs, 2,521; and 18 year-olds still in under-18 YOIs, 262. My understanding is that the use of custody for juveniles has not shown the kind of significant increase that we have seen for adults. At least we can share some degree of satisfaction on that, although we understand that much more needs to be done. I was interested in my noble friend’s comments about reoffending. He is right that some of the reoffending rates are very high. Clearly, we need to do everything that we can to get those figures down.

Overall, for all sentences in youth justice, the proven reoffending rate was 40.8 per cent, which was a decrease of 2.5 percentage points since 2000. Within that figure is a wide variation, depending on the type of juvenile disposal. The noble Lord was right that the reoffending rate for custodial disposal is high. That shows that there is a great challenge ahead; it shows also that, inevitably, the young people who end up in custody are always likely to be those who are most susceptible to criminal activity. I am sure that there is great debate about that. What is not in doubt is that there has been some improvement, but it is clear that much more needs to happen.

The noble Lord, Lord Ramsbotham, raised some interesting points about 18 to 21 year-olds. He has talked to me about the East End project. I feel that an invitation is coming my way very shortly to go there with the noble Lord. I would be happy to take it up because the project is very interesting and I will want to ensure that my department is aware of it.

I understand the points that he raised about this younger age group. We are looking at the possibility of new arrangements for offenders in custody aged between 18 and 24. They are being piloted following a review of provision for young adults. So we have this issue very much in mind. I am happy to write to the noble Lord and share with him—

My Lords, I am grateful to the Minister for that. Instead of putting all this money into hideous Titans, have the Government considered spending money on purpose-built accommodation for women and children and then moving the adults into what has been evacuated?

My Lords, we have not debated Titans for some time, so I welcome that helpful intervention. Given the need to increase provision—some noble Lords will disagree with me about that, but it was one of the conclusions of the Carter report—and given all the constraints on planning and development, we believe that Titans are the best way to get that provision up and running as quickly as possible. I am sure that the problem is that one imagines Titans as those prisons that one sees in the US, with huge towers, machine guns and all the rest of it, but there is no reason why, within a Titan campus—if I can put it like that—smaller units cannot be run with all the advantages of small-scale care management, but with the advantages, too, of the large-scale infrastructure investment that will come. It was clear in our Statement on Carter that building the Titans will free up some smaller-scale accommodation, which could well be used for some of what the noble Lord has talked about. He will know that, in the light of Corston, we have started a project that is looking at smaller, local units for women. I shall not convince the noble Lord, Lord Ramsbotham, or other noble Lords on Titans, but we believe that they will give us some flexibility to meet his concerns. That is certainly the intention.

Those aged 18-plus were debated in Committee and last week on our first day on Report. I understand the concern felt about the transfer of young people from youth to adult custodial settings. My understanding is that, since last week, my department and the Youth Justice Board have been discussing a range of transition issues. I shall make sure that our debates are played into those discussions. I fully accept that transition is important and that it is important to ensure that if there are successful programmes—we have heard from the noble Baroness how there can be—their advantage is not lost if a young person transfers into an adult establishment. That point is well taken.

I also take the point about mental health problems. We have discussed them before in relation to adult prisoners, but mental health issues are as debilitating for young offenders as they are for adults. We know that there have been improvements in CAMH services in the National Health Service and we need to take advantage of those. The review by my noble friend Lord Bradley will take these concerns into account.

There is understandable concern about the use of restraint in juvenile secure settings. We debated the statutory instrument last summer. The debate, which was led by the noble Lord, Lord Carlile, was very instructive. We announced the independent review of restraint, chaired by Andrew Williamson and Paul Smallridge, and on 20 March, at the request of the two co-chairs, we announced an extension to the deadline for the report. I understand that they will now report their recommendations to Ministers by 20 June.

The headings mentioned by the noble Baroness, Lady Stern, may well refer to the sorts of violent acts in which staff may be required to intervene. My noble friend Lord Judd opened his remarks by paying tribute to many of the staff in the current youth custodial settings, which was very handsome of him. When it comes to restraint and other issues, one has to recognise the pressures on staff and the need for intervention. I am sure that we will welcome the report on restraint when it is—

My Lords, the Minister is suggesting that the headings that I read out are to sections about what can happen to staff. Can he explain why they are redacted?

My Lords, they are edited out. There is white space under the headings because we are not allowed to read what is there. That is what redacted usually means.

My Lords, I am grateful for that elucidation. I do not have a specific answer, but I will look into it. It may well have to do with matters that are regarded as confidential. I do not know, but perhaps I can come back to the noble Baroness on that.

The noble Baroness, Lady Miller, asked me about Oakhill secure training centre. The report by Her Majesty’s Chief Inspector of Prisons is serious and we have considered it carefully. It undoubtedly reflects very serious problems that the centre faced. I am glad to say that I understand that the centre has stabilised and levels of disruption have reduced. The Youth Justice Board is closely monitoring it and managing the numbers of young people placed in it. It is carefully considering every placement to ensure that young people accommodated at Oakhill are safe and secure. G4S, which is responsible for the centre, has been asked to develop an action plan in relation to the recommendations raised by the inspection. There is no complacency on that matter.

A number of noble Lords spoke about the tragedy of death or self-harm in custody. I echo what they said. They will know that the Youth Justice Board has introduced new policies and practices to improve safeguarding and to help to prevent suicide in custody. That involves counselling, support groups and specialised psychological interventions as well as general healthcare and welfare, purposeful activity and the appointment of suicide prevention co-ordinators in all establishments.

The noble Baroness, Lady Stern, mentioned Section 34 of the Offender Management Act 2007. I have answered a Parliamentary Question on that—at least, it will soon be answered. My understanding is that Section 34, as she said, gave the Secretary of State power to extend the range of types of establishment in which young people serving detention training orders may be accommodated. I understand that the Youth Justice Board is looking at the scope for and practical implications of such an extension. I hope that that gives her the full answer that she called for.

Advice has miraculously turned up about the PCC manual. It is not in the public domain because it is an instructors’ manual. There is a risk that people might use the information gained in a way that put others at risk. I am happy to respond rather more fully to the noble Baroness on that point.

My noble friend’s amendment is most extensive and I congratulate him on his drafting skills. However, there are severe practical problems with its implementation. He proposes that anyone under 20 who receives a custodial sentence should be placed in local authority secure accommodation—a secure children’s home. It would apply to a very wide age range—considerably wider than that of young people who may be tried in a youth court. There would be real concerns, for instance, about placing 19 year-olds and 10 year-olds in the same establishment.

Local authorities are already required to provide secure accommodation, but its volume has declined in recent years. There are currently fewer than 400 places in secure children’s homes in England and Wales. The majority of them are used by the Youth Justice Board to accommodate vulnerable young people who have been sentenced to custody. It would be impossible to accommodate all under-18s sentenced to custody in local authority secure accommodation, let alone 18 and 19 year-olds, whom the new clause also covers.

All is not lost. My noble friend Lord Adonis, who is sitting beside me, detailed some of the major improvements in the youth justice system in our recent debates on his Bill. I do not want to repeat what my noble friend said in those debates, because many noble Lords took part in that discussion, but it signals an acceptance by the Government and the Youth Justice Board that there are significant challenges in the current estate and that there is more that we need to do.

We need to improve provision, but we should not underestimate the improvements that have taken place since the Youth Justice Board was established. For instance, let us look at some of its current priorities. It is concentrating on getting better provision for 15 and 16 year-old boys, who are more vulnerable; a new unit is being developed at Wetherby YOI. All 15 and 16 year-old girls were moved out of prison accommodation by the end of 2003. Five new special units for 17 year-old girls have been developed within the Prison Service estate but entirely separate from adults and young adults. As I said, there has been the development of joint work with the Department for Children, Schools and Families and the work of the Youth Justice Board, as well as the development of the Children’s Plan and the youth crime action plan. All those are symbols of a determination to meet the challenges that noble Lords have set. If I cannot reply in the affirmative to my noble friend’s amendment, I hope that he will accept that I recognise the concerns that he has expressed.

I pay tribute to people working in the youth custodial setting for the challenges that they face. I understand my noble friend’s frustration, but changes have been made and further improvements will be made. I believe that, at the end of the day, we all share the concern to ensure that these young people are given as much opportunity as possible to be set on the right path for a good life ahead.

My Lords, I am grateful to the Minister for his usual careful and thorough response to the arguments that have been put forward. I am extremely grateful to noble Lords who have spoken in support of the amendment. They have brought a great deal of authoritative experience and insight to bear on an issue about which there is clearly widespread concern in this House.

I shall pick up several of the points that the Minister made in replying. First, he referred to my humanitarian concern. I hope that I can claim to be part of the widespread culture of humanitarian concern that marks this House and so many of its activities. It has made me very pleased to be a Member of this House, which brings to bear not only learning, expertise and excellence but compassion and concern in a way that sometimes might not be so easy for the other place, with all the pressures of the media operating as they do on the electoral cycle—a point that we should perhaps bear in mind when looking at the future.

The Minister has been at pains to appreciate the service and efforts of some of those who deal with these youngsters. I agree that there are probably many who are to be applauded. I have seen for myself the heroic efforts that can be made and the extraordinary results, such as young people who have been involved in armed robbery going on to hold postgraduate degrees and to make a very positive contribution to society. We should applaud them. The trouble is that they are still the exception. The reality is still stark. It would be quite wrong to go over all the statistics again, but they are there, such as the fact that 80 per cent of young offenders under 18 reoffend within two years. That is not a success story, although there are successes, and we must take that seriously.

The Minister—this is not the only occasion on which he has done this—also talked about the determination to see proper services and support arrangements in place. I am sure that he will agree that much of the best research that has been done in this area shows that, if progress is to be made with the young, it will be made in small units. The ability to provide real relationships within small units is crucial to success. After all, when we dealt with the Minister’s own amendment earlier this afternoon, we touched on the fact that we must look to the needs of the young people concerned. He will have noticed that I was at pains to point out that what I liked about his amendment was that it did not talk about children in generalised terms; it talked about the offender. That was an important point to underline.

I tremble when I hear about the vast new prisons that are marching completely in the opposite direction from what the research indicates is necessary for the young. My noble friend has said that he does not believe that it would be possible to provide alternative accommodation of the kind for which I argue on a comprehensive basis. However, he has not answered the point: if some other countries can do it, why are we not able to? I do not understand.

I am a firm supporter of the Government, although sometimes they might ask when. In that context, we like to say how basically strong the economy is, despite some temporary interruptions from time to time. It does not quite tie up if we claim that we are one of the strongest economies in the world but then say that we cannot afford to do what other countries that do not have such economies can do. That seems to say something about priorities. I have touched on that before, but the balance of expenditure is a contentious issue. Galbraith spoke about,

“private affluence and public squalor”;

perhaps what goes on in our prisons is a good illustration of the point that he so well and so often made.

I have never doubted my noble friend’s good will on these matters. It is good to see the Under-Secretary with responsibility for the children’s Bill on the Bench. Anyone who has been through that Bill, with which there is a great deal of overlap, would not be able for a moment to doubt his sincerity and commitment. There are mountains to be moved and I do not want to undermine my noble friends’ efforts to move those mountains. Although they probably cannot admit it, I believe that they are very much part of those who want to move the mountains.

In view of all that my noble friend has said, it behoves me to go away and look seriously at his arguments and his response and to consider deeply how I should now proceed. I should like to give notice on how I might combine my concerns in this context with those of noble Lord, Lord Ramsbotham, and his real anxiety to see how the situation can be improved in the immediate future. If the noble Lord will permit me, I should like to talk with him on how we might combine our efforts in that respect. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

45: After Clause 9, insert the following new Clause—

“Restrictions on custodial sentences for offenders aged under 18

(1) This section applies where a person under the age of 18 is convicted of an offence punishable with a custodial sentence other than one—

(a) fixed by law; or(b) falling to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain offences under s. 5) or under sections 226 to 228 of the Criminal Justice Act 2003 (c. 44).(2) The Criminal Justice Act 2003 is amended as follows.

(3) In the title of section 152 (general restrictions on imposing discretionary custodial sentences), after “general restrictions on imposing discretionary sentences” insert “on offenders aged 18 or above”.

(4) In section 152(1), after “where a person” insert “aged 18 or above”.

(5) After section 152 insert—

“152A Restrictions on custodial sentences for offenders aged under 18

(1) A court shall only pass a sentence of custody on a person under the age of 18 as a measure of last resort and where—

(a) the offence committed caused or could reasonably have been expected to cause serious physical or psychological harm to another or others; and(b) a custodial sentence is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm.(2) The court shall state in open session its reasons for passing any sentence of custody under this section.””

The noble Baroness said: My Lords, we have arrived, by way of this amendment, at building safeguards yet again as pertains to custody for children. Noble Lords will be forgiven if they felt a sense of déjà vu or familiarity in many of the arguments as they related to Amendment No. 44. Amendment No. 45 would create a statutory custody threshold that must be met before any child is sentenced to custody to ensure that children are locked up only as a last resort and for reasons of public protection, save where mandatory custodial sentences apply.

We acknowledge the Minister’s concerns about children who have committed grave crimes and would support a custody threshold that relates only to offences other than murder and the serious crimes listed in Sections 226 and 228 of the Criminal Justice Act. A distinct custody threshold for children and young people was introduced by Parliament more than 25 years ago. It resulted in a 54 per cent decrease over nearly a decade in the number of under-21s given a custodial sentence for indictable offences.

In the year ending March 2007, the Youth Justice Board spent £280 million on custody for children, notwithstanding the cost of support in the community for these children and their families. The board now has a target, approved by the Home Office, to reduce the number of children in custody by 10 per cent by 2008. Yet the number of children in custody has risen, not fallen. The amendment is therefore in complete conformity with the stated aim.

I was interested to hear the Minister’s numbers for children being received into prison in the debate we have just had. He went slightly too fast for me, so I wonder if the numbers I have match with what he said. Nevertheless, let me repeat them. The number of children aged between 15 and 17 being received into prisons under an immediate custodial sentence has increased from 4,918 in 2003 to 5,219 in 2006, an increase of 13 per cent. This does not take into account receptions into secure training centres and local authority secure children’s homes. Contrary to what the Minister said earlier, there has been a reduction of 22 per cent for all prison receptions, adults and children, raising concerns that children are disproportionately being given immediate custodial sentences.

The Minister has argued that a custody threshold already exists in the form of Section 152(2) of the Criminal Justice Act 2003. We would argue that it is inadequate because it does not meet our obligations in international human rights law, again something that has been much talked about today. The obligation is that children be treated in a recognisably different way from adults. Custody for children should be used only as a last resort, but we would go further and say that the wording of Section 152(2), which emphasises the seriousness of the offence as the factor to be considered, is meaningless without reference to a person’s age. That is the object of our amendment.

The Minister might also argue that that these safeguards would put the public at significant risk, but Ministry of Justice figures up to December 2007 show that the vast majority of children aged between 15 and 17, some 78 per cent, who were sentenced to imprisonment in 2006 were not convicted of offences related to sexual crimes or violence against the person. More than one in 10 children—14 per cent—were imprisoned for theft and handling; 5 per cent for motoring offences and 4 per cent for drug offences. A quarter of children were imprisoned for other offences that included affray, criminal damage and even drunkenness. Then there are well known cases such as the Deerbolt Two where custodial sentences were passed on children for graffiti offences.

We know that custody does not rehabilitate the vast majority of children, and much has already been said about that. Three-quarters of these children reoffend within a year. This amendment would enable interventions to kick in earlier for those who do not pose a risk and provide better resources for those who have to enter custody for reasons of public protection.

Finally, the Children’s Plan, published in December 2007, promises that the Government are taking,

“a fundamental look at the way in which the criminal justice system overall is working for young people to ensure that we learn from existing good practice and address current concerns. This includes examining what we know about why young people offend, what a more effective approach to prevention would look like, [and] the options available for dealing with children who commit crimes”.

So there clearly is an intention on the part of the Government to take a comprehensive look at this area in the round. This amendment would provide them with the means of meeting some of those objectives.

Organisations working with children in the criminal justice system and those concerned with the protection of human rights are united in urging a considerable reduction in the number of children held in custody. The general public want more effective intervention and less imprisonment. The Local Government Association has agreed that it is time we,

“explored more effective and sustainable ways of dealing with children in trouble, rather than resorting to”,

locking them up. This amendment provides the Government with a way to do that. I beg to move.

My Lords, as a complete lay man, it seems to me that the amendment has at least two flaws. First, how do you determine what is “serious psychological harm”? A 17 year-old who breaks into an isolated farm in which a single woman is living could well not use physical force, but it still might frighten the woman out of her wits. The same thing might apply to an elderly man. Psychological harm might not become apparent immediately but take several months, or even years, to manifest itself. Even “serious physical harm” requires some greater definition. Supposing that same burglar were to punch the householder in the face, breaking her nose or knocking out a tooth. Does that count as serious or mild harm? I simply do not know. The noble Baroness may well have an answer to that.

The second flaw is the extremely high hurdle required by this amendment to send someone dangerous in some respect to prison. Not only do they have to have committed an offence, but the possibility of them committing another one must be imminent. If, for some reason, they go abroad and are not in a position to commit another offence in this country for six months, there is no imminent risk of an offence; they are not likely to commit an offence immediately. So it must be demonstrable and imminent. I do not know quite how you can demonstrate that they are likely to offend immediately, in a few days or weeks. Perhaps the noble Baroness will be kind enough to clarify exactly what that means.

My Lords, I support the principle behind the amendment but I, too, have some concerns about the wording. It is too restrictive. I take the point made by the noble Lord, Lord Monson, on that. I am also concerned that paragraphs (a) and (b) of proposed new Section 152A(1) are cumulative, so that you must have both aspects in order for a custodial sentence to be passed.

On a slightly different aspect that worries me very much, many adults with serious mental health problems find themselves in prison because there are not hospitals appropriate to take them. There are therefore people locked up in prison as a place of last resort, although the problems that led them to commit their crimes are due to their mental health rather than solely to their criminality. I do not know—I ask the Minister—how many children and young people are in prison because there is nowhere else to send them and they are not safe to leave in the community.

I had some experience in my previous life of trying to find places for young people who were not actually going before the criminal courts, although they should have been there in one sense; although they had committed offences, we caught them before it was necessary to take them there. I remember one 15 year-old who was extremely dangerous. It was difficult to find a place for him to go. I recall opening a place for young psychiatrically disturbed people under the age of 18 in Newcastle about 15 years ago. It added another 20 places to the eight places at that time catering for these mental health problems. That provided 28 places only for the whole country.

There will be people who need to be locked up, but they do not need to be locked up in prison. What are the Government providing by way of psychiatric places in a hospital that devotes one wing to young people, or therapeutic communities where the young people can be helped?

The other group that I remember well was at Peper Harrow, which is now Childhood First; that community had to close down because people would not pay to send people there. The Caldecott community has a number of young people who otherwise might very well be in prison. The therapeutic community is an enormously valuable asset for those who do not actually have to be locked up as dangerous but who, if they were not in the therapeutic community, would either have committed suicide or be in a psychiatric hospital, if one could find one. We need more mental health places for young people as the alternative to putting them in prison.

My Lords, your Lordships’ House owes a great debt to the noble Baroness, Lady Falkner, for tabling the amendment. We have debated a great deal the damage that is done to children who are placed in custody, but we have talked about it in general terms of principle. The noble Baroness has introduced an amendment that would specifically limit the powers of the court to put children in custody except in well defined circumstances. She is to be congratulated on that.

My hesitations about the amendment are not about the approach, which is excellent, but about the restrictions in proposed new Section 152A. Like the noble Lord, Lord Monson, and I think the noble and learned Baroness, Lady Butler-Sloss, I think that those are just too restrictive. I would like to see in the amendment a more graduated approach to the restrictions, particularly bearing in mind that the Bill introduces the youth rehabilitation order, which gives the court a great deal more flexibility. By saying that, I would not in any way like the noble Baroness to think that I thought that her drafting efforts were in vain.

My Lords, I say in support of the amendment that the court, when it passes a sentence of custody, is amply able and capable of determining whether the custody is a measure of last resort. It is amply able to determine whether,

“the offence committed caused or could reasonably have been expected to cause serious physical or psychological harm”,

and that it,

“is necessary to protect the public”.

Those are issues that sentencers customarily have to resolve. The purpose of introducing this threshold is to show that only where physical or psychological harm is occasioned to members of the public, and there is a risk of it continuing, should custody be used in respect of a person under the age of 18. From these Benches, we are trying to rebalance the system so that custody is not seen as an appropriate sentence for minor or major dishonesties, fraud or whatever, for those who are under the age of 18, but should be reserved for where there is serious physical or psychological harm, or the threat of it.

My Lords, I, too, have respect and sympathy for the motivation behind the amendment. Indeed, any emphasis in the law that underscores and endorses the principle that incarceration should be the very last resort in relation to a young person, and even more so for a child, obviously has massive merit. I accept that the wording of the amendment is such as to give rise to undue restrictions; most certainly it could not possibly be contemplated in the form in which it now exists.

I want to make a point that arises from the remarks made by the noble and learned Baroness, Lady Butler-Sloss. It relates to the very high percentage of children and young persons who are suffering from mental conditions, some of which are very serious. The situation is so serious that one could well ask this question: is society treating those persons as if they were criminals with only a mental health overlay when in fact the situation is the very opposite and is basically a mental health problem with a criminal overlay? Anything that can bring about a change in that culture of thinking would be extremely beneficial.

My Lords, I am delighted to put my name to the amendment, because it raises extremely important points. I made the same arguments on the previous amendment, so it would be to take a liberty with the House to repeat them. I hope that my noble friend will take the amendment seriously in the context of the view, which I understand he shares, that we must decide whether we are on the side of rehabilitation and in the context of what is appropriate for each individual young offender in the cause of achieving rehabilitation.

In replying on the last amendment, my noble friend said that those of us advocating it were on the side of humanitarian concern. We are proud to be so, but it really is not just about humanitarian concern—that is part of the exasperation that arises. It is about being effective in protecting society, because what is being done at the moment does not protect society. That is the point. What is the tough way to protect society and what is not? Here there is a complete coincidence between what makes enlightened humanitarian concern and what is effective at achieving results.

My Lords, like other noble Lords, I congratulate the noble Baroness, Lady Falkner, on returning to what is undoubtedly an important matter. In a sense, it is a practical expansion of the overriding debate about youth justice, its purposes and the place of custody within it. Again, this has been an extremely interesting debate, in which there is very little difference between noble Lords on intent, the purposes of custody, the fact that custody should be the last resort and the rehabilitation provisions that we wish to see within any custodial setting.

The Government share some of the practical concerns about the amendment. I will write to noble Lords on the figures, because I know that they are of great interest. Overall, my understanding is that the number of under-18s in custody has remained relatively stable over the past seven years. The proportion of under-18s given custody as a proportion of all under-18 disposals has actually fallen from about 4 per cent to 3 per cent. It is an indication—I do not say any more than that—that there has been a greater use of out-of-court disposals. We seek to increase the availability of out-of-court disposals in the future, and the Bill contains such provisions.

The problem that we have with the amendment is that it would set a much higher custody threshold for under-18s than at present. The noble Baroness wants to do that, so this is really a question of judgment rather than the technicality of the amendment, although there are some technical issues. I understand why she wants to set a high custody threshold; she thinks that the actions of the courts and the provisions in custody do not sufficiently meet the needs of those young people. I understand that, but we are concerned about the practical implications. As the House will be aware, and indeed as the noble Baroness said, in most cases a court may impose custody under Section 152(2) of the Criminal Justice Act 2003 only if it considers that the offence and any associated offences are so serious that neither a fine alone nor a community sentence can be justified.

The amendments that I moved last week, which your Lordships spoke on, will mean that the courts will have to consider specifically whether a youth rehabilitation order with intensive supervision and surveillance or intensive fostering could be used. If the court considers that they are not sufficient, it will have to say why. Our amendment reflected our previous discussion. The Government have recognised that and have moved considerably on it.

The first limb of the noble Baroness’s amendment relates to the seriousness of the offences. The second goes on to provide that, even where serious physical harm has been caused, the court cannot impose custody unless it is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm. The problem that we have is that we think that that would place severe restrictions on the court and undermine our obligation to protect the public. It could mean that a person could commit an offence involving the deliberate infliction of serious bodily injury but the courts would have no power to impose custody unless the prosecution could prove beyond reasonable doubt that custody was necessary to avoid the future risk of serious physical or psychological harm. We heard from the noble Lord, Lord Monson, among others, of some of the problems in meeting that requirement.

We have debated at great length and with enthusiasm the question of judicial discretion and we will be doing so again later today—we tend to pray it in aid of whatever argument we seek to put forward—but I would be very cautious about accepting this amendment, as it would unnecessarily fetter the discretion of the judiciary.

The noble and learned Baroness, Lady Butler-Sloss, and then the noble Lord, Lord Elystan-Morgan, spoke about mental health problems suffered by young people in custody. I think that they were making two points: there could be some young people in custody because there is no provision in the health service and there are other young people in custody who ought to be under the care of appropriate health service provision. During the passage of the Mental Health Bill through your Lordships’ House in the previous Session, we debated many of these points as they applied to adults. There is clear evidence in the prison system of people with severe mental health problems who ought to be in secure NHS facilities. That is recognised. I pay tribute to the Prison Service and the health service for the substantive improvements that have taken place, but more needs to be done. The report of my noble friend Lord Bradley, which we eagerly await, will cover those matters, as it will in relation to young people. I am not at all complacent on this point. It is a well recognised matter.

Last week, I think, we discussed the development of child and adolescent mental health services, which have been expanded by the National Health Service. That is a great comfort. In addition, the provision of NHS secure forensic mental health units has been expanded. In 2002 there were only two units, with a total of 28 beds, in Manchester and Newcastle. The NHS National Commissioning Group—which I think I once had responsibility for—has ensured greater capacity and better geographical distribution, with units opening in Birmingham, south London and west London over the past three years. Another unit opening in Southampton in 2008 will bring the total number of units to six. I also understand that from April 2007 a further 10 secure mental health beds specifically for young people with a learning disability have been commissioned from St Andrew’s Hospital in Northampton, with seven more planned in Newcastle from April 2008. That does not wholly answer the challenge, but it shows that we are moving in the right direction.

Let me be clear: in all our activities, we are seeking to reduce the number of young offenders coming into court and to provide the courts with robust alternatives to custody. We share the analysis of so many noble Lords as to why that should be necessary, but in certain circumstances custody will be necessary. In those circumstances the judiciary should retain the discretion that it now has. The noble Baroness’s amendment, which is very well intended, would fetter that discretion too much.

My Lords, I am heartened by how many noble Lords have spoken to this amendment and I hear what they have said. The Minister is right that we have a fundamental difference of approach and he is right in interpreting my motivations in this area. We believe that there are still too many children—the emphasis is on children—going into custody who should not be incarcerated by the state. The state has a particular duty in this regard, because children should be treated differently from adults. International human rights law, which we have signed up to, says that in terms. The Joint Committee on Human Rights, in its report in January 2008, said that,

“the provision in the Criminal Justice Act restricting the use of custody is a general restriction applying to all offenders, rather than one aimed at ensuring that custody is only ever used as a genuinely last resort in relation to juveniles. In our view, a much more specific safeguard is required in order to ensure that the obligation in Article 37(b)”,

of the Convention on the Rights of the Child,

“is properly implemented”.

So we have fine words, but perhaps less fine action.

I say to the noble Lord, Lord Monson, that, in addition to what my noble friend Lord Thomas of Gresford said about courts having to use discretion and judgment on a regular basis, the custody threshold, such as it exists in Section 152(2) of the Criminal Justice Act 2003, has as its factor for consideration the seriousness of the offence. We argue that that is also a discretionary judgment and that the threshold itself is meaningless without it. Here we have tried, by bringing in a person’s age and circumstances, to help to elucidate the circumstances that might affect that person appearing before the courts.

As I said, I am heartened by the general thrust of this debate. I hope that the Minister will have heard what other noble Lords said about the motivations behind the amendment. On that basis, I hope that he will reflect and perhaps come back to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

47: After Clause 9, insert the following new Clause—

“Principle aim of the youth justice system

(1) Section 37 of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) is amended as follows.

(2) For subsection (1) substitute—

“(1) It shall be the principal aim of the youth justice system to promote the welfare of children and in so doing have particular regard to the need to prevent offending (including reoffending).””

The noble Lord said: My Lords, your Lordships are aware that I have already spoken on this amendment, because it was grouped with the government amendments at the beginning of our deliberations today. I do not propose to rehearse again the arguments that I put at that time. I was grateful for the support I received from all quarters of the House for the amendment.

There are one or two points to which I am entitled to reply that were made at that time—in particular, on the syntactical infelicity to which the noble and learned Lord, Lord Mayhew, referred. I do not think that there is such an infelicity. Proposed new subsection (2) says:

“It shall be the principal aim of the youth justice system to promote the welfare of children and in so doing—”

in other words, in so promoting—

“have particular regard to the need to prevent offending (including reoffending)”.

All of us who have listened to today’s debates will appreciate that it is very much the welfare of children that we have in mind and that if there is a promotion of the welfare of children it may well stop offending or reoffending in the way in which this amendment is phrased.

The noble Lord, Lord Kingsland, was good enough to say that we confront Section 37 of the Crime and Disorder Act 1998, with which, he said, the law began to go wrong. I was interested to discover that the noble Lord, Lord Windlesham, who was in his place earlier today, said about the provision in the then Bill, at Second Reading in December 1997:

“As far as I can tell, creation of a general duty is an innovation not to be found in other parts of the system of criminal justice. While it sounds desirable enough in principle, there may be difficulties in reconciling it with international treaty obligations on the rights of the child and there will be an awkward question to be faced as to whether or not it should extend to defence counsel in criminal proceedings. But they are good intentions and good intentions often have practical consequences which must then be faced and resolved in some way that is regarded as satisfactory to the legislature”.—[Official Report, 16/12/97; col. 569.]

There have been practical problems. In my earlier remarks, I outlined how the provisions in the 1998 Act has been overtaken by later legislation that has incorporated our duties and responsibilities under international treaties.

What we are trying to do with his amendment is to rebalance the youth justice system so as to put the welfare of the child first and make it the purpose and principal aim of the statement of principle for the youth justice system as a whole. It is a principle that should not simply be confined to the court’s sentencing and the purposes of the court in sentencing, to which Clause 9 refers. It should be a principle that applies across the board to every agency, whether it is the police, prison officers, youth offending teams, probation services and so on. I am interested to hear that a youth crime action plan is being proposed by the Government, in which, no doubt, those cross-agency problems will be addressed.

I put the amendment forward for your Lordships’ consideration in order to bring the 1998 Act up to date, having regard to the obligations of which I have spoken. I beg to move.

My Lords, the amendment comes after Clause 9. On a technical point, is the part of Clause 9 that does not deal specifically with this intended to be interfered with?

My Lords, the noble Lord, Lord Thomas, invitingly asks me to respond, but we had a very full debate on this group. Noble Lords will know that the House has kindly accepted the government amendment, which seeks to ensure that there is no hierarchy when it comes to the matters to which the court has to have regard, as it was thought there was by some noble Lords in Committee. I hope that noble Lords will consider that the government amendment properly deals with concerns that many noble Lords have.

My Lords, we feel very strongly on these Benches on this issue. We feel that it is time to rebalance and bring up to date the youth justice system, so I intend to test the opinion of the House.

Clause 10 [Abolition of suspended sentences for summary offences]:

48: Clause 10, leave out Clause 10

The noble Lord said: My Lords, this amendment was thoroughly debated in Committee. Therefore, I can be reasonably telegraphic in introducing it again at Report. Clause 10 proposes that suspended sentences cannot be ordered for summary offences heard in magistrates’ courts. The Government’s argument for advancing that is that if the option to issue a suspended sentence is denied the court, it will impose a community sentence, thereby assisting the Government in their well known difficulties with prison overcrowding.

In our view, the inference is illusory. When one is dealing with a suspended prison sentence, as your Lordships know, one is dealing with an offence that has passed the custody threshold. This follows from guidance issued by the Sentencing Guidelines Council, as I indicated in Committee. At page 24 of the guidance, the Sentencing Guidelines Council sets out the questions that the court should ask itself. First, has the custody threshold been passed? Secondly, if so, is it unavoidable that a custodial sentence be imposed? Thirdly, if so, can that sentence be suspended? Thus, if a court concludes that a custodial sentence should be imposed and if the option of a suspended sentence is removed, as the Government so intend, prison is inevitable. Removing the power of magistrates to use suspended sentences for summary offences would have the opposite effect to that intended by the Government: it would increase the prison population, not reduce it. I beg to move.

My Lords, I spoke at length on this amendment in Committee and I do not propose to repeat what I said at that time save to say that we support the stance of the noble Lord, Lord Kingsland.

My Lords, I did not speak on this in Committee, but I found the inexorable logic of the argument of the noble Lord, Lord Kingsland, irresistible.

My Lords, I also share the view of the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lloyd of Berwick. The Government are going down the wrong path. They will not get a community sentence out of the absence of a suspended sentence because the point has been crossed, as the noble Lord, Lord Kingsland, pointed out from the sentencing guidelines. Therefore, whatever else may be said, if you cannot have a suspended sentence you will just carry on filling up the prisons.

My Lords, the clear purpose of the provision in the Bill is to reduce the prison population. That is a laudable objective, but I have the gravest doubts about whether that can be achieved by the risk that the Government are taking with regard to this provision. Indeed, in all likelihood it will have the opposite effect. I referred in Committee and I will do so again to what happened in the Home Office 40 years ago when I was a junior Minister, which rather dates one. A careful analysis was carried out of the effect of suspended sentences under the Criminal Justice Act 1967 after the Act had been in force for 12 months or so. The objective of the Act, among many other things, was to try to reduce the number of prison sentences.

The figures were something like this. The number of prison sentences remained exactly the same. The number of fines fell by about 18,000. The number of suspended sentences was about 18,000. In other words, one could never prognosticate nor indeed have any confidence in exactly how courts, particularly magistrates’ courts, will react to such a situation. That is in no way pejorative of magistrates’ courts. There are petty sessional divisions that are apparently very similar socially but that have entirely different sentencing policies. There is therefore every likelihood that the ironic consequence of this provision will be to increase the prison population rather than reduce it.

There is one other reason why this clause should not be allowed to proceed. There is real merit in having the power to suspend for relatively innocuous offences, or let us say offences that are not of the highest rank of seriousness. Like so many other sentencers, I have often looked at a person’s antecedents and seen how he or she was dealt with most leniently four, six or eight times before, and then seen a chasm where a very serious sentence had suddenly to be imposed. One often wonders what would have happened to that person if a shot across the bows by way of a suspended sentence had been fired much earlier in their criminal career.

As for the logic of the situation, much as I respect the normally unremitting and perfect logic of the noble Lord, Lord Kingsland, I think that one might make this distinction. In so far as there is reference to crossing the threshold of custody and whether the case merits imprisonment, that is a decision for a sentencing court. Of course the decision whether one suspends a sentence is a decision for the sentencing court by definition; but actually it is a sentencing court sitting as a parole board. It has already sent the person to prison in its mind, and then one second later it reconstitutes itself as a parole board and asks whether it is necessary for that sentence to be served. I think that there is that justification for what might seem a matter of rather slick mental gymnastics.

I simply ask the Minister—who has been most accommodating on all the points raised on the Bill—to consider that the Government might be wrong on this matter and that an unnecessary risk is being run.

My Lords, I warmly support the amendment. I declare an interest as a magistrate for 25 years. I also apologise to the House because I was not able to take part in Committee on this matter. I promise that I will not make a Committee speech. I agree with the comments made. One point which perhaps has not been made is that the provision removes discretion from the magistrates’ court. It chips away at an institution that has served the British legal and judicial system very well over the years. The fact is that the suspended sentence is an extremely valuable sentence. I remember that it was in disfavour in the 1980s and it was suggested to us that we should not impose it, but we would have given our eye teeth for the ability to impose it. It is a sword of Damocles hanging over someone to ensure that they do not step out of line. It is an absolutely perfect way of administering justice.

Like all noble Lords who have spoken so far, I think that the provision will have the reverse effect. If magistrates are unable to impose a suspended sentence they will look for another disposal. It should not be assumed that it will automatically be a community order or fine; it may well be a custodial order. I therefore invite the House to support the amendment.

My Lords, it is relevant to point out what the Magistrates' Association has said about this proposal in Clause 10. It has said:

“We believe that research into SSOs”—

suspended sentence orders—“made since April 2005”, when they were conferred to this extent on magistrates,

“has not been sufficiently robust yet to show that it is SSOs that have, or will have, a significant impact on the prison population. On the contrary, it may well be that an SSO impacts less on the prison and probation services and resources than either an immediate custodial sentence or a high level community order with a greater number of requirements”.

We have all expressed our admiration for the magistrates and our belief in the importance of not fettering unnecessarily the discretion of the judiciary—to use a phrase used only an hour ago by the Minister. Surely it is very important to remember that the Magistrates’ Association has said:

“We can see no logical or good reason for this proposal”.

Surely that must cause the Government to think again.

My Lords, I, too, support the amendment, for another practical reason. I am concerned that there are not enough resources to provide enough community sentences. We have been talking about more and more being put in. To suggest this on top of everything else seems impractical, because I very much doubt that the resources will be available to do as the clause seeks.

My Lords, let me do my best. To start off with, I remind noble Lords that we are seeking in Clause 10 to remove the rights for summary offences to be dealt with by suspended sentence orders; we are not for a moment trying to remove the right to use suspended sentence orders for either-way offences, let alone indictable offences. We are talking about summary offences only. Let me make clear our premise. The courts are in practice using the new suspended sentence—which came in on 1 April 2005—for substantial numbers of summary cases which would previously have received non-custodial sentences. The courts have made substantial use of the orders since their introduction. There has, however, been no commensurate drop in the use of the immediate custodial sentence. Suspended sentences are therefore not being imposed instead of immediate custody.

Let me go through the figures. Comparison of the confirmed sentencing figures for all courts for 2006, after the legislation came in, and those for 2004, before it came in, show that the immediate custody rate has remained stable at just under 7 per cent, whereas the usage of suspended sentences has increased from 0.2 per cent in 2004 to 2.4 per cent in 2006. The number of suspended supervision orders has increased from 2,900 to 33,500, 12,700 of which were for summary offences as against 700 in 2004. The figures for the magistrates’ courts alone may be even more significant. A comparison of 2004 and 2006 shows that the immediate custody rate has remained stable at 4 per cent whereas the usage of suspended sentences has increased from 0.1 per cent in 2004 to 1.7 per cent in 2006. The actual numbers increased from 1,300 to 23,300. Some 12,400 of that number were for summary offences, as against 700 in 2004 before the Act came into force. For summary offences sentenced in the magistrates’ courts alone there was a slight drop in the immediate custody rate, from 2.1 per cent to 1.9 per cent. However, the rate of use of suspended sentences shows a much greater increase of 0.1 per cent, to 1.1 per cent.

As I said, we do not believe that that is due to a change in the seriousness of offences. The only explanation offered in Committee was that there had somehow been a sudden increase in the seriousness of offences so that the number of suspended sentences shot up even though the number of those going to prison remained the same. We are not aware of any evidence that there has been a sudden change in the seriousness of offences. It seems to us very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. It also seems implausible that any such increase in seriousness would coincide so exactly with the availability of the new suspended sentence. In fact, use of immediate custody for summary-only offences in the magistrates’ courts has been fairly stable at around 2 per cent for the last 10 years, up to and including 2006, which would appear to argue against an increase in seriousness in recent years.

The implausibility is twofold. First, it seems implausible that an increase in seriousness has occurred specifically to coincide with the introduction of the new suspended sentence. Secondly, it seems implausible that such an increase would manifest itself by moving offences from community disposals to suspended sentence orders, but that no significant proportion of offences would justify a move up to immediate custody.

Those who support the amendment have to say what explanation there can be for these figures—which are unchallenged, as I understand it—other than our explanation, which is that these sentences have been used, not altogether but largely, in place of what would otherwise have been community orders.

We believe it is very much more likely that magistrates have not maintained the previous custody threshold. It is one thing to say that magistrates should go through a simple logical process whereby they simply label an offence as being one side or another of the custodial threshold, in complete isolation from consideration of the sentencing options. I intend no disrespect to any court, let alone magistrates’ courts, but we all know that this is a grey area, as the noble and learned Lord the Lord Chief Justice has acknowledged, where a prison sentence might or might not be appropriate for an offender, and with these offenders it is difficult to consider the question in isolation from the available options.

The noble and learned Lord the Lord Chief Justice said on 15 November 2007:

“The seriousness of the offence determines whether it crosses what is known as the ‘custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates”.

I think that was the point that the noble Lord, Lord Elystan-Morgan, was making.

A suspended sentence, intuitively, is different from an immediate custodial sentence where the offender has no opportunity to avoid the clanging of the gates—prison. Introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has in fact—I maintain that the figures show this—had the unforeseen effect of blurring the level of the custodial threshold.

But in any event, if the suspended sentence is no longer available for summary offences, courts will impose an immediate custodial sentence only in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. Under these circumstances we believe that the custodial threshold is likely to revert to something close to its previous level.

To support the case that I am putting, I pray in aid the fact that the chief executive of NACRO, Paul Cavadino, agreed precisely with the point that I just made. The noble Baroness, Lady Stern, was a director of NACRO for many years. It is a very well respected organisation. In other words, Paul Cavadino should know what is happening. He said:

“Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court”.

Not all suspended sentences are successful, if that is not already obvious. When a suspended sentence is given, in as many as 30 per cent of cases the offender, alas, offends again and is then liable to a longer period of imprisonment for his original offence and for the new offence.

In a newsletter of May 2007 the Sentencing Guidelines Council said that the number of suspended sentences rose steadily between 2004 and 2005, that provisional figures for 2006 show a much more rapid increase and that the information available to the council and the panel appears to indicate that this increase has been accompanied more—I stress “more”—by a reduction in the number of community orders than in the number of custodial sentences. Therefore, having seen the operation of this new change, the Sentencing Guidelines Council came to the view that the case we are putting today is more likely to be true than the opposite.

I have spoken to the noble Lord, Lord Dholakia, and told him that I wished to quote from his Second Reading speech. He is a most distinguished Member of your Lordships' House who has gained great expertise in this field over many years. I stress that he was speaking from the Back Benches when he said:

“The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences”.—[Official Report, 22/01/08; col. 163.]

It is only that which the Government seek to do—to prohibit the passing of suspended sentences for minor, summary offences.

If there is concern about the supervision aspect, I should say that all conditions that can be imposed under a suspended sentence can be imposed under a community order without adverse effect on the prison population. It is our firm belief that if we do not introduce Clause 10, the courts will continue to impose suspended sentence orders where they would previously have used community orders. The results of that, ultimately, would be that around 400 people—I want to be very careful with figures here because there is no way of proving the point as I am referring to the future rather than the past—would end up in prison who would not be there if we remove the suspended sentence for summary-only offences. I have spoken for some time but this is a serious matter. I ask the noble Lord to consider withdrawing the amendment—

My Lords, bearing in mind the fact that the new provisions have been operating only for a short period, as the Minister said, was any effort made to cure the situation if, in fact, there is a problem—I accept his argument for a moment—by giving strong advice to magistrates? If not, how can the Government say that they do not trust magistrates as regards suspended sentences yet trust them as regards custodial sentences? If they are totally unable to analyse the situation in relation in one area, how are they competent to deal with it in the other?

My Lords, Governments of whatever colour are always extremely careful not to go beyond what they are entitled to do in terms of advising on sentencing. I do not know, I have to say, what approaches have been made to magistrates from the Government in relation to what we feel is happening. But no great criticism of magistrates is intended in anything that I have said or in what the Government intend.

If I am right about the custody threshold being a greyer area than we sometimes like to think when we are debating these points, or a greyer area than what the textbooks say, it is hardly surprising that where there is a possibility of a suspended sentence, those who are able to impose one will do so just to try to give a bit more force to their sentence at the time, perhaps to frighten an offender in the best possible way. That is exactly the way that the noble Lord himself used to pass suspended sentences. But if the consequence of suspended sentences is that people come back in large proportions and have to be sent to prison—that is what should happen if a suspended sentence is broken—the problem is that the prison sentence increases, rather than decreases.

I am advised that the magistrates have already received strong advice in sentencing guidelines. That has been pointed out. The statute is clear. But the figures, I am afraid, speak for themselves, and unless there is a better explanation of those figures—and no one has come up with one yet—it would seem that this particular reform of 2003 has not worked.

My Lords, I am most grateful to the Minister, who has characteristically given a full and earnest response to my amendment in his customary way. In fact, I can save myself most of the trouble in winding up, because the noble Lord, Lord Elystan-Morgan, said it all for me in the most telling way in his previous intervention.

The Government can reasonably be accused in a phrase that the noble Lord, Lord Ramsbotham, has often used—“order, counter-order, disorder”. The Government have only recently introduced these changes. They have decided after a very short period that the changes are not working and to reverse rules that they made only a few years ago. Quite apart from the uncertainty of the statistics, the very least that your Lordships’ House can ask of the Government is to give the present system a chance to see whether it could work.

Perhaps I may say, with enormous respect to the noble Lord, that some of the observations that he made about the conduct of magistrates in their courts are rather unfair. Magistrates are bound by the sentencing guidelines. They have to follow them. The sentencing guidelines are crystal clear about the circumstances in which suspended sentences can be applied. Is he suggesting that magistrates are now breaking those rules for some reason? I am sure that he is not, or I am sure that he did not intend to suggest that. The case for our position is quite irrefutable and for those reasons I wish to test the opinion of the House.

Clause 12 [Restriction on power to make a community order]:

49: Clause 12, page 9, line 5, leave out from “offence” to end of line 10 and insert “(“the current offence”) committed by a person to whom subsection (1) or (1A) applies”.”

50: Clause 12, page 9, line 12, leave out paragraph (a) and insert—

“(a) for “Subsection (2) applies where” substitute “This subsection applies to the offender if—“(za) the current offence is punishable with imprisonment;”;”

51: Clause 12, page 9, line 19, leave out from beginning to end of line 20 and insert—

“(1A) This subsection applies to the offender if—

( ) the current offence is not punishable with imprisonment;”

On Question, amendments agreed to.

Clause 13 [Sentences of imprisonment for public protection]:

My Lords, before I call Amendment No. 52, I have to inform your Lordships that if it is carried, I cannot call Amendment No. 53 for reasons of pre-emption.

52: Clause 13, page 9, leave out lines 41 and 42

The noble Lord said: My Lords, Amendment No. 52 brings us to IPPs, which will also be the subject of later groupings. Before I introduce the amendment, I make it clear to your Lordships that I entirely accept that there is a real problem with IPPs and prison place availability. If you are in prison as a result of receiving an IPP and have served your minimum term, you cannot, as your Lordships well know, get out without having been through a period of rehabilitation and having demonstrated that you have—at least, to some degree—benefited from it.

As we all know, the current situation in prisons is such that it is simply not possible to initiate rehabilitation schemes which meet the requirements of the law. As a result, there is growing frustration among prisoners who have received IPPs about their inability to have the opportunity to improve their lot. The problem is now deeply ingrained in all the associated difficulties of prison resources. Indeed, at the end of the Committee debate, the noble Lord, Lord Neill of Bladen, raised a very interesting question about the compatibility of the current state of prisons with the European Convention on Human Rights. His second point was that, if someone is awarded an IPP, what goes with it is a right to be rehabilitated. If that right is in practice, as he put it, a fiction, is that a denial of someone’s human rights under the convention? That question was posed at the end of Committee and I should be most interested to know whether the Minister has managed to reflect on it between then and now.

Perhaps I may introduce this matter again very briefly, because we had a long debate about it in Committee. As your Lordships are very well aware, the conditions for imposing an IPP are that, first, the crime must be one of 153 specified sexual or violent offences; secondly, the offence must be capable of attracting a sentence of 10 or more years of imprisonment; and, thirdly, the offender must pose a significant risk of causing death or serious injury by the commission of further offences. In such cases, the judge must impose an IPP and the offender must serve a minimum tariff before he can be considered for release; but, as I have already indicated, he can be held in custody for as long as he is considered to pose a threat to public security.

The most recent figures indicate that at least half of all sentences given for threats to kill, child sex offences and sexual assault resulted in a tariff of less than two years. That means that, if the Government press ahead with their plans, those individuals will not be eligible for IPPs, given that their sentence length would be below the threshold that is to be introduced. I quite understand the convenience to the Government of seeking to legislate in that way, but judges sentence individuals to IPPs because they believe that they are dangerous. The assessment of danger is quite independent of the length of the sentence of imprisonment that judges give for the offence charged. They are not connected but are completely different exercises.

Desirable though it may be to relieve the pressures of the IPP system, it should not be done by undermining the assessment of a judge that a particular person should receive an IPP because he represents a real threat. I repeat, the judge has to undertake two completely different exercises. On the one hand, there is the sentencing exercise and, on the other, the assessment of whether the individual is capable of being a threat to society. This is what we complain of. Whether the tariff is below or above two years, the judge faces exactly the same problem in either case. I beg to move.

My Lords, I am in the same difficulty as I was in Committee. If one leaves out proposed new subsection (3B)—the lines which the noble Lord, Lord Kingsland, suggests should be omitted—an indeterminate sentence could be imposed only where an offender has previously committed a very serious offence such as murder or rape, as set out in Schedule 6. There are 22 very serious offences as distinct from the 153 offences set out in the other schedule. The amendment would reduce the number of those for whom an indeterminate sentence would be available. That is my view of the effect of the noble Lord’s amendment and I gather that it is shared by the Government. In the event that the amendment might succeed—I do not wish to be pre-empted—I had better develop my further argument on Amendment No. 53. What is the view of the House? I am giving the noble Lord a chance to say that he does not intend to press his amendment to a Division.

My Lords, I do wish to press my amendment. The noble and learned Lord would, no doubt, not want the purity of his argument corrupted by the contents of my amendment. I respectfully suggest that he holds his fire until the next group of amendments, when he can put his always very welcome thoughts to your Lordships' House.

My Lords, as I understand it, I do not think that the noble and learned Lord can wait for the next group.

My Lords, I think it was made clear that if the amendment in the name of the noble Lord, Lord Kingsland, were passed, the noble and learned Lord, Lord Lloyd, would not be able to move his Amendment No. 53. That is my understanding of the position. This is Report stage, not Committee. The noble Lord might address whether he agrees that his amendment does not actually achieve what we think he wants to achieve, as that is causing the problem.

My Lords, that is not our view. This amendment came from another place; another place has looked at the speech of the noble and learned Lord, Lord Lloyd, and at the Minister's letter, and the view is retained that the amendment achieves what it sets out to do. I know that that is not the Government’s view but it is the view that I must sustain at the Dispatch Box.

My Lords, it seems as though I must now address my amendments, which I am very happy to do. In doing so, perhaps I may also address Amendments Nos. 57 and 58, under other clauses, which relate to extended sentences. It will save time if I deal with them together because they relate to the same point. The noble Lord knows the arguments which I wish to advance, so I can be brief.

Everyone accepts that it is the duty of the Government to protect the public, in so far as the public can be protected, from very dangerous offenders. That was the purpose of Section 225 of the 2003 Act. However, the Government now accept that the provisions in Section 225 of the 2003 Act have misfired. Mr David Hanson in the other place accepts that the provision no longer serves what he described as a proper purpose. It is not serving a proper purpose because it catches offenders who ought not to be caught; it is catching criminals who are guilty of quite minor offences of violence and yet are being made subject to indefinite sentences of imprisonment. As my noble friend Lady Stern said, it is catching children and subjecting them to indefinite sentences of imprisonment.

As a consequence, there will soon be some 5,000 offenders serving indefinite sentences, which is far in excess of what was ever anticipated. The number is increasing at the rate of 1,800 a year, and it is estimated by the Home Office that it will exceed 12,000 by 2011. With a population of prisoners now estimated to exceed 85,000 by this time next year—the answer which the noble Lord gave in reply to my noble friend on Monday—it is quite clear that something has to be done urgently to inhibit any further increase in the number of those serving indeterminate sentences. That is the view of the Chief Inspector of Prisons in her recent report and the view of the noble Lord, Lord Carter of Coles. Happily, the Government have accepted that view and, as a result, Clause 30 will give judges a discretion whether to impose an indeterminate sentence or not. The word now is “may”—not “must”. That is clearly a step in the right direction, for which we must all be grateful. Moreover, under Clause 13, indeterminate sentences will be available only where the tariff is two years or more, which is another step in the right direction. But it goes nothing like far enough to make any difference to the present problem of overcrowding.

If we are to stop overcrowding getting worse, let alone reduce the present level of overcrowding, the indeterminate sentence must be reserved now for really serious offenders; in other words, those with tariffs of four years or more. And that is the purpose of my amendment. It will be said no doubt that whether one chooses two years or four is a matter of judgment. That is of course true, but the judgment should be based on facts and not on political expediency. The crucial fact here is the remorseless increase in the prison population.

The indeterminate sentence is also a cause of great injustice. Those who have served their tariff sentence remain in prison indefinitely in the hope that they will in due course come before the Parole Board, but the Parole Board is already overstretched and its position will become a great deal worse during the coming year. That there are people in prison who are waiting to go before the Parole Board and who have served their tariff sentence is a possible cause of unrest in prisons.

There are two reasons for supporting the amendment. In the first place, we can do something now about overcrowding and prevent a situation which is already bad getting worse. Secondly, we can do something to remedy a source of serious injustice to those who are serving these sentences.

My Lords, I support the principle of the government amendment. I also support the further amendment of the noble and learned Lord, Lord Lloyd of Berwick, for the reasons which he gave. I was dismayed to hear the noble Lord, Lord Kingsland, suggest that there was no correlation between the sentence of imprisonment for an offence and the degree of danger. I find it improbable that somebody who was given a sentence of 28 days, which I understand was in one case given with an indeterminate sentence, was really so dangerous that they had to be kept in prison indefinitely, but their offence was so minor that it resulted in only 28 days. I understand that a considerable number of sentences have been very much less than one year. All of that leads me to think that the system as it has been working—and as I understand the Conservative Benches would wish it to work from the way in which they interpret their amendment—would allow 28 days to continue in the future, which is profoundly wrong. I strongly support the Government, but even more so the noble and learned Lord, Lord Lloyd of Berwick.

My Lords, like my noble and learned friend, I support the spirit and principle of what the Government and my noble and learned friend Lord Lloyd have said. The key word in all this is surely “risk”. There is no doubt that there are some people who go to prison who are such a risk to the public that their release must always be a matter for conjecture. If you talk to prison governors about the people who give them most concern, they invariably refer to paedophiles and sex offenders, for whom there is always going to be a doubt about whether they will be fit for return to society, not least because, tragically, many of them have an ambivalent view about what they have done, having themselves been victims. But that is not the subject of this amendment.

We are clearing up yet another example of a knee-jerk introduction in the 2003 Act which was not subject to proper regulatory impact assessment. Although the introduction was right, the impact on the Prison Service has been disastrous, with vast numbers of people awaiting courses in order to be released. The impact has been disastrous, too, on the Parole Board, and it is only going to get worse. Therefore, while I entirely support the principle, it seems to me that what needs to be done is for us to look at what the impact of the proposed increase to four or seven years is assessed to be, but also at the impact on the Prison Service and Parole Board to see whether they can deliver what needs to be delivered to make the thing work. The whole system becomes discredited if it cannot do what it imposes in its Bills.

My Lords, I support wholeheartedly the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick. There is every reason why the House should support the amendments. The Government are to be congratulated on their attitude to the relevant provisions of the Act of 2003. It is very proper that the matter should be left to general judicial discretion rather than be made mandatory. On the other hand, I say with the greatest respect that the Government are failing to be loyal to their own logic in setting a threshold that is much too low.

It is obvious that there is a relationship between the initial sentence threshold and the risk. When a court is considering the risk, it should ask what the best evidence is. The best evidence is the offence with which it is dealing: it is what the man has done. Therefore, for all those reasons, the amendment should receive the wholehearted support of the House.

My Lords, I wonder whether it would be for the convenience of the House if I posed a question to the noble and learned Lord, Lord Lloyd. It seems that he has grouped in this debate his Amendments Nos. 53, 55, 57 and 58. If that is so, might I respond to them? He of course reserves the right to put them to the vote when they are called. Would it be useful if I did that?

My Lords, I am most grateful to the noble and learned Lord. I asked the noble Lord, Lord Kingsland, what he thought about his own amendment, in a sense, because, as the noble and learned Lord, Lord Lloyd, suggested, and I said in Committee, we think that it would not achieve what he seeks, and would restrict IPPs in a way which he would not want. I think that there is general agreement about that.

Clause 13 amends Section 225 of the Criminal Justice Act 2003 by setting out two new conditions, one of which must be met before the court can impose an IPP. One of those conditions is the two-year threshold; the other is a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A to the Criminal Justice Act 2003, which can be found in Schedule 5 to this Bill.

The amendment of the noble Lord, Lord Kingsland, would remove entirely the threshold condition, in new subsection (3B), without making any further consequential amendment. It leaves the other condition intact. Our reading of it is that it leaves a statute whereby a court may impose an IPP where only the first condition is met; that is, that the offender must have a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A.

A substantial number of IPPs have been given out by the courts. It was certainly not foreseen by the Government that high numbers of IPPs would be given with very short tariffs. I said in Committee that about 30 per cent of offenders receive a tariff of two years or less. The average tariff for all IPP sentences is 38 months and, as the noble and learned Baroness, Lady Butler-Sloss, said, the shortest tariff recorded so far is just 28 days. That clearly raises serious questions about whether the sentences can provide an appropriate degree of risk management for those offenders who have received only a very short tariff.

On a practical level, as a number of noble Lords have already observed, such sentences can create great management difficulties. I do not need to go into great detail, but they present an enormous challenge to the service, which is a matter of considerable concern to noble Lords. Prison staff are under instructions to prioritise indeterminate sentence prisoners with short tariffs and to move them as quickly as possible to establishments where their offending behaviour needs can be addressed so that they can go through the structure and their case can then be considered appropriately by the Parole Board. We have also increased provision. The number of core offending behaviour courses has risen from 14,000 in 2004-05 to 18,000 in 2006-07, and additional funding has been given for the implementation of offender management in prisons.

However, welcome as those improved measures are, they are clearly not enough to deal with the problem that we face. That is why we are proposing that the statute be changed to ensure that courts are able to make more targeted use of the sentences. The noble Lord, Lord Kingsland, suggested that the seriousness of the trigger offence bore no relation to the degree of risk presented by the offender. The noble and learned Baroness, Lady Butler-Sloss, responded in vigorous terms that I can only endorse. We think there is an association between the assessment of an offence and the risk of future offending and causing future harm, which is reflected in the sentence, although it is but one factor in the risk assessment undertaken in the courts.

The noble Lord, Lord Kingsland, referred to the comments made by the noble Lord, Lord Neill. IPPs per se have not been held incompatible with the ECHR. We certified that they were compatible on introducing the 2003 Bill. The noble Lord, Lord Kingsland, may have had in mind the judgment in the Divisional Court in the case of Walker and James that the Secretary of State for Justice had acted irrationally in failing to provide the necessary resources to support the delivery of offending behaviour programmes for IPP prisoners so that they can be considered for release by the Parole Board as soon as their tariff has expired. The Court of Appeal upheld that judgment—I am sure the noble Lord, Lord Kingsland, knew that—and made a declaratory statement. It also indicated that if an IPP prisoner were held in custody for an unreasonably long time after a tariff that was not defined by the court, he would have a case for a judicial review under Articles 51 and 54 of the ECHR. Walker and James did not receive the remedy of release as they were not considered to have exceeded their tariff by an unreasonable time.

As the noble Lord, Lord Kingsland, raised the question of risk, I shall point out that there is an exception to the seriousness threshold where offenders have previous convictions for certain very serious offences. We believe that in certain cases it may be advisable to impose a public protection sentence even though the threshold has not been reached for the current offence. Those cases are where an offender has already demonstrated that he or she is capable of very serious crimes. The relevant offences are those that invoke the “two strikes” or “automatic life” provision of the Powers of Criminal Courts (Sentencing) Act 2000, which was incorporated in 2005 into the dangerous offenders legislation. The list includes soliciting and conspiring to commit murder, manslaughter, grievous bodily harm with intent, robbery with firearm, and possession of firearm with criminal intent. The sexual offences covered are rape, rape of a child, and other offences involving very serious sexual activity without consent. These additional sexual offences were introduced in the Sexual Offences Act 2003. I should also make it clear that public protection sentences are not the only risk-management tool that protects the public from sexual and violent offenders. We believe that there is sufficient discretion and that the courts will still be able to give IPPs where they are needed.

I listened with great care to the speech the noble and learned Lord, Lord Lloyd, made on his amendment. He welcomed the changes that the Government have put down, but would prefer to go further in the way that his amendment suggests. Rather like the debate on the custody threshold in relation to youth justice, it is a question of judgment whether the Government have this right or whether the noble and learned Lord has. He met my right honourable friend the Lord Chancellor to discuss this, which was very helpful, but after careful consideration we think that the minimum two years in custody is the most appropriate threshold because it equates to a headline sentence of four years. We do not think that is an inevitable sentence. It would be unusual to receive a four-year sentence for a trivial offence. We are trying to strike a balance between ruling out cases that are not serious enough to be considered in this light and allowing the court to detain worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. Under the regime prior to the 2003 Act, four years was the cut-off point in length of sentence between the offender being automatically released at the half-way point and being released at the discretion of the Parole Board. Of course, we are now talking about a different system, but my reflection of the previous regime shows that four years with two years’ actual custody was considered a threshold beyond which risk management came more into play, which is one of the rationales for the period that the Government have chosen.

I realise that this is a matter of judgment. I understand that a number of noble Lords feel that we have not gone far enough. The noble Lord, Lord Kingsland, feels we have gone too far. I happily put the proposition that maybe we have the balance right. I hope that if he is determined to press his amendment to the vote, it will not receive the support of the House.

My Lords, I may be a little slow on this, but is the sentence that we are talking about—two years—the sentence awarded by the court or the sentence served by the prisoner after whatever remission is appropriate?

My Lords, I am of course most grateful to all your Lordships who have participated in this debate and the Minister for his reply. I think that this is the first time that I have tabled an amendment during the course of this Bill that has been received with such universal obloquy. I very much respect the quality of the arguments that have been advanced against my case.

Nevertheless, the Opposition take this matter extremely seriously and we continue to think—I say this despite the perspicacious observations made by the noble and learned Baroness, Lady Butler-Sloss—that judges conduct an entirely separate assessment between the sentencing assessment and the assessment of danger. For those reasons, we believe that the Government's approach in this case is wrong-headed. On that basis, I wish to test the opinion of the House.

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.55 pm.

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