moved Amendments Nos. 66A and 66B:

moved Amendment No. 66C:

moved Amendments Nos. 66D and 66E:

moved Amendment No. 66F:

moved Amendments Nos. 66G and 66H:

moved Amendment No. 69:

My Lords, the Minister asked me whether I would be pleased at the concession that the Government have made on this matter. Of course I am, and I acknowledge that freely. While not every concern that we expressed has been recognised, the substance has—and for that, I am much in his and the Government’s debt.

On Question, amendment agreed to.

Clause 42 [Power of Court of Appeal to disregard developments in the law: England and Wales]:

moved Amendment No. 70:

moved Amendment No. 70A:

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, should not be surprised by the Government’s change of tack on this issue. He should have learnt by now that even if the Government accept the wisdom and substance of an amendment tabled by a member of the Opposition or the Cross Benches, they find it difficult to accept the exact wording. It is in that context, and no other, that one should see what has emerged from the government Benches.

As far as the noble and learned Lord’s amendment is concerned, who am I to question something crafted by such a distinguished couple as the noble and learned Lord on one hand and the president of the Queen’s Bench on the other? I wait with interest to hear the Government’s reasons for wanting something a little more tautly drawn.

My Lords, I intervene briefly because I cannot look at this from the point of view of an academic lawyer or the problems that have arisen in the past. I look at it as it stands, or indeed from the point of view of the Appellate Committee of your Lordships’ House—I have only had the privilege of appearing before it, that is all. My appreciation of what goes on there is of absolutely no interest to anybody. But I am a little worried. If the law changes, are you really going to be put out in the interests of doing justice, broadly? I cannot put it another way. It seems to me to go against the grain—although if it goes with the grain of the academics, I could not care less. I am interested in justice, not the interests of the academics. There is a distinction to be drawn between a development in the law and the development of the means of getting evidence to enforce it. That is an important distinction. It should never be foreclosed upon by the Appellate Committee of the House. It has not done so and I do not suppose that it will do so, but would it and where does this lead us? I am not asking these questions to be difficult or tiresome; I simply do not understand that this will, in the end, deliver what I understand as plain justice.

My Lords, I have discussed this with the noble and learned Lord, Lord Lloyd of Berwick, and the president of the Queen’s Bench Division. This is a very sensible amendment and I support it.

My Lords, it beggars description that when the noble and learned Lord, Lord Lloyd of Berwick—who, in the immortal words of Bertie Wooster on Jeeves, was certainly fed on fish from an early age—and the president of the Queen’s Bench come up with a wording to satisfy a small and technical point, the Government then have to go away and try to do it better. If they have been given a Rolls-Royce, why can they not sit in it and drive it, as opposed to fiddling with it, trying to make it a four-wheel drive vehicle?

My Lords, if by contemporary standards of justice there has been a miscarriage of justice in the past, it is surely for the Court of Appeal to right that injustice. The purpose of the amendment of the noble and learned Lord, Lord Lloyd of Berwick, is to ensure that that is done. We on these Benches support it entirely.

My Lords, with that introduction, perhaps I should have had some more sardines for my breakfast this morning. Clause 42 amends Section 2 of the Criminal Appeal Act 1968 to give the Court of Appeal a discretion to disregard developments in the law since the date of conviction. The noble and learned Lord, Lord Lloyd of Berwick, is concerned that the clause is too wide in its effect. We understand his concern to be that it would allow the Court of Appeal to disregard the law as it is now in any case where it was considering whether a conviction was unsafe, in whatever manner the case reached the court, and whether a development in the law was one of the grounds of appeal. The matter has been discussed with the noble and learned Lord, and we have been exploring the possibility of reducing the ambit of the clause to make clear that it applies only to cases referred to the Court of Appeal by the Criminal Cases Review Commission.

My Lords, first, a possible answer for the noble Lord, Lord Campbell of Alloway, is that the amendment would certainly in no way inhibit the judges of the Court of Appeal doing justice in a particular case—it would, in fact, enable them to do it more expeditiously than would a possible amendment which is being floated by the Government.

On the Minister’s reply, I am of course glad that the Government now accept that the existing clause is far too wide. He suggests that my amendment is still too wide, because it would enable the Court of Appeal to dismiss an appeal that has merit and which it would not otherwise dismiss but allow because it is conjoined with another ground of appeal that happens to be based on change of law. I do not understand that. It is not just a question that the Court of Appeal would never in its life do such a silly thing but it is not something that flows from the language of my amendment as I see it.

Having said that, I will try to attempt the thing that the noble Lord, Lord Kingsland, says can never be done: to persuade the Government that someone else’s wording is better than theirs. In that hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 71:

moved Amendment No. 72:

moved Amendments Nos. 74 to 76:

moved Amendment No. 77A:

moved Amendments Nos. 78 and 79:

moved Amendment No. 79A:

My Lords, there has been some confusion about the case despite comments from the Benches on our left. I will, however, rise to the occasion. I was slightly distracted by the incredible pace of debate this afternoon.

We have received the letter from the Minister, the noble Lord, Lord Hunt of Kings Heath, and are grateful that the Government have taken on board the philosophy behind what we were trying to do, if not the absolute wording of our amendments. On that basis, we are grateful to the Government for having come this far because, eventually, the objective that we all wanted to achieve has been covered—more or less.

On Question, amendment agreed to.

moved Amendment No. 79B:

moved Amendments Nos. 79C to 79E:

moved Amendments Nos. 79G to 79K:

moved Amendment No. 79L:

moved Amendment No. 80:

My Lords, we broadly support the propositions advanced by the noble Baroness, Lady Falkner. I note that the Standing Committee for Youth Justice produced a compelling paper, arguing in her favour. The philosophies of that paper and the proposed amendment are identical. The Government are denying themselves an important degree of flexibility in dealing with this class of offenders, which is open to them in dealing with adult offenders. That seems puzzling when you consider that more informal ways of dealing with offences for the under-18s generally have a better impact with respect to recidivism than court-imposed penalties. That the Government have not conceded that this approach is the better one just adds to one’s amazement.

My Lords, it seems to go without saying that the longer one keeps the young away from the experienced ungodly, the better. To raise this age from 17 to 18 seems to go down that line. A distinguished judge said to me the other day, “I know prison doesn’t work—but Michael, what am I to do?” That seems to sum up the problems that we have with prison. What we know is that the less you mix the older with the younger, the better. For that reason, I support the noble Baroness in her argument.

My Lords, I, too, support the amendment, as I did on a previous occasion. I am certain that the noble Lord, Lord Judd, if he were here, would have been on his feet much earlier. I do so for the reasons stated—the maximum flexibility in dealing with the young, acknowledging the different stages of growing up and giving them the maximum chance of not going into a fully-fledged prison environment. I support the amendment and hope that the Government will think again.

My Lords, let me make it clear that the Government cannot support the amendment as it stands, but we welcome the opportunity to reiterate the assurances given in Committee that we are committed to resolving this issue in the longer term. We do not dispute the logic of the noble Baroness in moving her amendment. It is an anomaly that 17 year-olds are treated as adults for remand placement purposes, but as children in every other part of the youth justice system.

During the debate in Committee, we voiced our sympathy with the thrust of the amendment, and I do so again today. I also set out the steps that had been taken to look at this issue and the complexities that had been uncovered that had prevented us from so far reaching an acceptable solution. Unfortunately, there are complexities. We know that the issue needs to be resolved. Our public response to the consultation Youth Justice: The Next Steps has made that commitment public. As the noble Baroness, Lady Falkner, was right to remind the House, the United Nations Convention on the Rights of the Child has identified this issue as requiring resolution. We have accepted our obligation to consider how we can do that. We will not lose sight of this issue and we will pursue a resolution of the problem.

We have already undertaken work to explore how we can correct this anomaly. The aim of this work echoed entirely the sentiment behind the amendment. It looked at replication of the remand placement structure for 12 to 16 year-olds for 17 year-olds. However, this has proved to be more problematic than merely changing the age in the current legislation as the amendment does. I say, with regret, that we have yet to find a workable solution.

The test for bail is essentially the same for both adults and young people, and it is not the subject of the amendment. The central issue is the placement of those aged 17. If the offender is remanded in custody, for 17 year-olds in practice it will be in a young offender institution and those aged 16 and under will normally be remanded to the care of the local authority. The amendment seeks to bring 17 year-olds into line with the provisions applying for young people aged 16 and under. In practice, that would mean that if the court orders a secure remand, a 17 year-old would be placed either in a secure training centre or a local authority secure children’s home. However, if remanded to the care of the local authority, the decision on the placement then lies with it, and the placement could be secure or non-secure, and it could include them living at home.

In an ideal world, we would want 17 year-olds to have similar options. However—this is critical—we do not believe that they should be placed routinely in children’s homes, because Section 23 of the Children and Young Persons Act 1969 also provides for the placement of the very youngest and most vulnerable young people into local authority accommodation. We rely on the argument made in part by the noble Earl, Lord Onslow, just now, that we do not want to mix up the very young with 17 year-olds in children’s homes. We do not think it appropriate to introduce 17 year-olds to local authority accommodation and to allow them to mix with a vulnerable group of younger children, particularly those who are there for welfare reasons alone.

My Lords, that is exactly the argument that I did not use. The argument that I used was that to put 17 year-olds with older criminals is wrong, not the other way around. It is essential in my view that they should not be mixed with older criminals and the Government seem to have accepted that but, like St Augustine, they say, “Make me chaste; but not just yet”.

My Lords, of course I know what argument the noble Earl was putting, and we agree with that argument. Ideally, 17 and 18 year-olds should not mix. The argument against putting 17 year-olds in children’s homes is that they would then mix with vulnerable children aged perhaps from 11 upwards, or maybe even younger than that. That is why I prayed in aid his argument. We do not deny its validity—in fact what I am saying now accepts its validity—but other options have to be considered. It is not a straightforward issue. We fear that the amendment is a little too simple and does not take into account the other interlinking factors that are equally important and which must be addressed alongside this issue. We spoke to the Standing Committee for Youth Justice on this subject following the Committee stage in this House. It is aware of the complexities involved and takes the point I have just made. We have already discussed with the standing committee how it might assist us in taking this matter forward.

I shall set out again—as briefly as I can, as I do not wish to take up too much of the time of the House, although this is an important topic—what other factors will have to be considered if we are to change the remand status of 17 year-olds. First, consideration would need to be given to the status of 17 year-olds under police bail, which is covered by the Police and Criminal Evidence Act. Any change in this provision may increase demand for juvenile accommodation in police custody suites because, as the House will know, young people have to be separated from adults in police detention and females have to be under the care of a woman officer. This has special relevance in this context because of the read-across to the provision of appropriate adults under Code C and the status of 17 year-olds under this Act. The House will want to know that the Home Office is currently reviewing the codes under PACE and we will need to ensure that this is addressed. We also need to look at the care status of young people under such a provision.

Finally, and most important, we need to consider the impact of any changes to 17 year-old remand status on the Bail Act itself. If we are to consider making changes to that important legislation, we need to ensure that they are undertaken in a coherent and consistent manner. We need to consider what the consequences of such changes will be. One issue has already been identified: under this amendment, 17 year-olds who are likely to interfere with witnesses and have been refused bail might end up with a non-secure remand. Noble Lords will agree that that cannot be right and that we would be failing in our duty to protect victims and the public if we did not address that issue.

We are very aware of our obligations under the UN Convention on the Rights of the Child and the commitment that we made following our response to the document Youth Justice—The Next Steps. I say again that we will review how we can ensure that 17 year-olds are treated appropriately for the purposes of remand, but such a review has to be done as a whole so that it takes into account all the relevant issues. It is thus with regret that I cannot agree to this amendment on behalf of the Government, but I assure the noble Baroness and the House that we will continue working in order to change what I have already conceded is an anomaly that needs to be changed.

My Lords, I thank noble Lords who have supported the broad thrust of the thinking behind this amendment. It is clear that there is growing concern over the increase in custodial rates and the poor outcomes associated with young people being held in custody. During the debate on the previous amendment tabled by the noble Lords, Lord Henley and Lord Kingsland, on which we divided, the Minister mentioned the Carter review and reminded us that there was a genuine attempt by the Government to reduce numbers in custody.

Philosophically, we can go down this road where we all acknowledge that custody does not work for everyone. We particularly recognise that in the case of young people. Throughout the weeks that the Bill has been in this House, we have recognised that custody is often deleterious and that people who are locked up as young people or children are more likely to end up in custody as adults. During the debate on the previous amendment, the Minister reiterated that there was a genuine attempt to bring down numbers, yet it is now four years since a consultation paper, the responses to it and the Government’s promise that we would look at this. For a young person who was 17 then and who was incarcerated, it has been a very long four years—25 per cent of their life—of waiting. That part of the person’s life has gone, damaged as it is.

There are numerous cases—6,561 is not an insignificant amount—of people who are still treated in that manner. We have our international commitments, for which we have fine words, but there is little point in signing up to international conventions if we are not really going to take them seriously and incorporate them into law. The Minister’s emollient words are there for the record and I have absolutely no doubt that he is completely sincere, but this is, I am afraid, a counsel of despair. We are still where we are and, I say with all due respect to those fine words, we do not have any commitment to look at this in the round within a certain timeframe and to bring in measures. That is why I was keen to table even a limited amendment that addressed this. I thought that it was better to move forward in a very limited way than to go beyond this into policing and other areas. However, we are where we are, and given the extremely long list of business ahead of us this evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 81:

My Lords, it seems to me mad that we are not much more careful about sending young people aged under 18 to prison. I know that I said this on the previous amendment, but I shall probably say it again and again, because it is mad. It is counterproductive and does not do any good. The only way anything can be done for these wretched children is through education and care, with attention to their mental health, their drug problems and so on. They should not be banged up in adult prisons under any circumstances whatever. In the 21st century, we should not be doing that and we are not a civilised country if we go on doing it. For those reasons, I support the Liberal Democrats. The less we do it, the cheaper it will be. Possibly, we would keep a few more out of permanent trouble, which is what we should always be trying to do.

My Lords, I supported this amendment on the previous occasion and of course I do so now. It is absurd that 18 should be thought to be the right age for this. Some 18 year-olds are really childish, while others may only think that they are big guys. To place them in accommodation with hardened criminals does not make any sense.

The other point made by the noble Lord, Lord Thomas of Gresford, concerned the background of these children. It has taken a long time to get the whole business of how they are treated and how they are restrained looked at, but even now it has been put off for yet a few more weeks while a wider look is taken at what the Government are prepared to do. The time has come for the Government to accept that no 18 year-old should be detained in a prison setting. I am only sorry that there are not more noble Lords who have spoken previously on this issue to set out the position more forcefully than has been the case today.

My Lords, I am one of those to whom my noble friend referred as having previously spoken on this. I do not think that it is necessary for me to say anything other than that I support the amendment.

My Lords, I, too, support the amendment. As have so many Members of your Lordships’ House on so many occasions, I point out that we in England and Wales bear the legal shame so far as western Europe is concerned on the incarceration of children. I have said many times before, and I make no apology for repeating it, that on a pro rata basis we incarcerate more children than Germany, France, the Netherlands and Norway put together.

There are huge problems, of course. If these young people are not to be incarcerated in the institutions that exist at the moment, where are they to be put? In many cases local authorities do not have secure accommodation facilities for children and young persons, so if the only practical alternative is to place them in children’s homes, I can see the problem; indeed, it was articulated by the noble Lord, Lord Bach, in relation to the earlier amendment.

The question is therefore what might be called contaminatory influences. If a 17 year-old is placed in a children’s home with children of the age of 11 upwards, how much contamination is experienced and suffered by the younger ones through that person’s presence? If, on the other hand, that 17 year-old is placed with an 18 year-old in a different sort of institution and where the 18 year-old may well be a much more shell-backed criminal altogether, how do we gauge that level of contamination? I appreciate that it is a difficult issue. However, I applaud the general principle that we should use every possible artifice, exercise our imagination and expend all our energy to ensure that we send fewer children to prison.

My Lords, I support strongly what my noble friend Lord Elystan-Morgan has just said. In fact, we are not talking about sending children aged 18 to adult prisons. As I understand it, the amendment concerns secure accommodation, young offender institutions and secure training centres. But what my noble friend has said is absolutely right: it is a question of the lack of resources at the local level for local secure accommodation. That is what is needed. One or two people have to be taken away from the community; there is no doubt about that. I do not know how many noble Lords have been, as I have, to young offender institutions and to secure training centres. I have been to both. They are not the dreadful places that they are made out to be. The standard of some of the staff is extremely high. However, the basic fact is that sufficient resources are not available at the local level for secure local authority places.

My Lords, Amendment No. 81 is similar to the amendment moved by the noble Baroness, Lady Linklater, in Committee. We had a full and passionate debate then, as we have had this afternoon in perhaps a smaller way. A number of concerns were expressed, with the emphasis very much on what remains to be done.

Let me point out briefly what the Government have done over the past few years to ensure that young people under 18 are accommodated entirely separately from young adults and older prisoners. Perhaps the key development was the decision in April 2000 to give the Youth Justice Board responsibility for oversight of the secure estate for children and young people. The board immediately established a discrete estate for boys under 18—in other words, one in which they did not have contact with anyone in custody over that age. It was, and is, a diverse estate, comprising young offender institutions, secure training centres and secure children’s homes—three different types of accommodation catering for differing age groups and differing levels of vulnerability.

Achieving similar separation for girls was much more difficult. Compared with the number of boys in custody, the number of girls is low. That presented problems if we were to succeed in providing establishments of adequate size in reasonably distributed locations. Anyone who was there will not forget hearing the noble Lord, Lord Ramsbotham, who is not in his place today, speaking to the equivalent amendment in Committee and recalling his horror at finding 15 year-old girls in Holloway prison when he inspected it in 1995 in his role as Her Majesty’s Chief Inspector of Prisons. The Committee agreed that that was not acceptable. Claiming a small amount of credit for the present Government, I should say that they are to be congratulated in small part on taking the steps necessary to ensure that that does not happen now. That was done by means of a phased programme, first removing all girls under 16 from Prison Service accommodation, then removing all girls under 17 and finally building a series of new special units for 17 year-old girls. Those units have a particular focus on the needs of the young women whom they accommodate and have been favourably reported on by Her Majesty’s inspectors.

The current amendment proposes a single type of establishment for all young people under 18. The Government do not believe that that is either workable or desirable. Just as it was right to separate under-18s from over-18s, it is necessary to keep older teenagers apart from younger ones—indeed, in some ways, the difference between the average 14 year-old and the average 17 year-old is far greater than that between many 17 and 18 year-olds. We do not believe that appropriate separation is possible without a range of types of establishment.

The diversity of the under-18s estate is a strength and not a weakness. That is not to say that the present arrangements are the last word; clearly there is scope for continued development in the field. For example, ministerial colleagues and I have referred to the work that is being done at Wetherby to build a new special unit for more vulnerable 15 and 16 year-old boys. I would simply ask that everyone concerned with this issue—and I know that the House is very taken with it—recognises not only the scope for further improvement but to some extent what has already been achieved. We have commented a lot on making sure that custody really is a last resort for young people of this age and we have shown our commitment to providing the courts with effective community interventions that offer an alternative to custody.

I am advised that it is arguable—no more than that—that, because of a drafting error, the new clause that is this amendment would not achieve its intended effect of removing the Secretary of State’s power to specify by order additional types of custodial establishment in which a detention and training order could be served, a power that, if it still remained, could be used to reinstate young offender institutions and secure training centres. I mention that because it would be wrong of me not to say that I had received that advice. Because of the general arguments that I have employed this afternoon, I ask the noble Lord to withdraw his amendment.

My Lords, I am grateful to the Minister for his reply. However, we think that there is a basic principle involved and that the provision put forward by the Government is not sufficient. I am grateful to all noble Lords who have spoken on the amendment. I particularly recall the noble Lord, Lord Elystan-Morgan, referring to our position in the league of shame in Europe. It is important that we should mark our disquiet and our feeling that what is happening at the moment is unacceptable, whether it relates to young offender institutions or secure training centres. No doubt those institutions contain people who are concerned and who work hard to achieve results with young people, but one of the problems is that, as those staff are within the Prison Service, they look for promotion upwards into the adult Prison Service. Some of the specialisation and talents that they develop within the YOIs and STCs are lost. For those reasons, we feel that it is necessary to test the opinion of the House on the issue.

moved Amendment No. 82:

My Lords, we on these Benches support this amendment. The noble Lord, Lord Kingsland, referred to the meeting that we had with the noble and learned Baroness the Attorney-General. She was good enough to write to me on 14 March. I assume that she sent a copy to the noble Lord, Lord Kingsland. She set out in her letter the way in which designated caseworkers are trained at the present time. That training involves training courses, e-learning—which I take to mean dealing with various questionnaires put on the internet—observation of court procedures and a comprehensive resource pack.

The candidates have a five-day foundation course, after which they are expected to take the e-learning module and attend a further one-day, face-to-face training course. Thereafter they have to do 16 CPD—continuing professional development—hours a year. Very properly, I have to do 12 hours of continuing professional development each year. I know nothing about the legislation that goes through this House, of course. That is about it: a five-day foundation course, a certain amount of experience in court watching what goes on for a period of time and a one-day further course. On that basis they are to be entitled to appear in court to carry out contested cases.

My Lords, I, too, support the amendment. I am very grateful to the noble and learned Baroness the Attorney-General for keeping me in the loop with copies of letters written to noble Lords and also for a letter of last week from her to me. I retain some concerns. We are dealing with the administration of justice in a criminal court. As the noble Lord, Lord Thomas of Gresford, has pointed out, the training of a designated caseworker, even with the pack, will not be sufficient in some cases. One has to bear in mind that in the magistrates’ court now, magistrates are lay men, the defendant may or may not be represented—probably not by a lawyer—the clerk need not necessarily be a lawyer in the criminal courts these days and is quite often a lay man and if the prosecutor has no real experience of the law and a point of law is raised, there will be real difficulty. We also need to be sure that the prosecutor has the ability to cope with the unexpected.

Two things put forward by the noble Lord, Lord Kingsland, are particularly important. One relates to offences that are not subject to imprisonment. Although the purists among us might prefer a lawyer to conduct the case, as a matter of reality, in the old days a warrant officer sometimes did the case so there is a real precedent for that. But that was not the kind of case where someone might go to prison. Without the absolute assurance that those who have had the pack, a few days’ training and the experience of going into court will have someone at their elbow to tell them what to do when the unexpected arises, they might find themselves not sufficiently independent and certainly not sufficiently clued up about the unexpected. There will be a danger of a miscarriage of justice as a result of which someone might go to prison, particularly a defendant who is unrepresented as so frequently happens in magistrates’ courts. Therefore, I very strongly support the fact that the matter should be up front and that those without legal training should not be able to prosecute where imprisonment is a possibility.

I am also very concerned about the regulation of the designated caseworker. I listened with a degree of dismay to what is apparently the present position. Although I, too, respect the ILEX training, I do not believe that its code of conduct begins to be adequate for the importance of the work that it does. The noble and learned Baroness the Attorney-General says that it is working towards a code of conduct similar to that of the Bar and the Law Society. I am absolutely delighted to hear that, but I would prefer designated caseworkers not to be able to undertake the work until they are actually regulated by that code of conduct. Bearing in mind not just the hours but the days and days spent on the Legal Services Act last year, where everyone was regulated up hill and down dale, particularly for the Bar and solicitors, it is ironic that a group who are not legally trained are able to carry out prosecutions which might involve imprisonment on the creep system, about which we have been told, without the matter coming back to your Lordships' House and the other place. It seems to me that such people should not be able to creep into imprisonment cases, admirable though I am sure they are. If the Minister tells us that some of them are legally qualified, that is fine. However, she will also have to tell us that a great many of them would like to be legally qualified but that they have not yet got to that point. It seems to me that until they get to that point, they need regulation as good as barristers and solicitors and that they should not be able to prosecute cases where someone might go to prison. I am very supportive of the amendment.

My Lords, an old expression states that if you pay peanuts, you get monkeys. In this case, I suspect that miscarriages of justice could happen, which would arise because people are not properly trained. By miscarriages of justice I mean that the guilty go free and the innocent go to prison. If somebody is not properly trained or regulated, that is more likely to happen than with a proper barrister. That is always possible, as we know of cases where that has happened and should not have done. I suggest that this will happen exactly if that lower standard of people is allowed to prosecute without any regulation or training. The noble Lord, Lord Thomas, read out how much training they have to have; frankly, it is practically less than that for driving a pony in an amateur dressage test. What is required is tiny, and that is not good enough.

Oh!

My Lords, If I make good jokes, I am delighted but it brings the point home. That is what should happen, and I therefore support the amendment.

My Lords, when the noble and learned Baroness the Attorney-General responds, which I feel sure she will be doing in a few minutes, might she deal with the attitude of the Magistrates’ Association? In this clause, we are dealing with procedures in the magistrates’ courts. The magistrates deal with 95 per cent or more of all criminal cases tried each year, which is something like 2 million. Is it not the case that the Government, so far as this provision was concerned, got off to a thoroughly bad start with the Magistrates’ Association?

The noble and learned Baroness the Attorney-General will know that the association said, in its briefing prepared for this House before Second Reading, that its priority was,

“for cases to be properly and efficiently presented to us in court”.

Did it not also say:

“We are strongly opposed to this proposal”?

Of course, that was before the adjustments made in the right direction by the Government. However, when the noble and learned Baroness responds, could she say whether the magistrates have been consulted specifically on whether they are content with the present clause—without the deficiencies being remedied, as they would be in the amendment from my noble friend—and what their position is?

My Lords, this amendment does not have the effect of banning all non-legal staff from court prosecutions. Indeed, it is right that there should be such a power and responsibility within a limited parameter. Nevertheless, I believe that the amendment is to be supported for limiting that within proper bounds. One can summarise the case thus: these people are carrying out an essentially professional function, certainly insofar as more serious cases are concerned. It is only right that they should be professionally qualified and disciplined, and should be answerable to a professional code of conduct insofar as matters outside the ambit of the amendment are concerned.

My Lords, I entirely agree with the noble Lord, Lord Kingsland, that it is essential for people fulfilling these duties to be subject to behaving in accordance with how a prosecutor ought. To my mind, it does not matter whether that will in fact lead to prison since, in many cases, being convicted may be very serious for a person who has never been in trouble before even if he is not to be imprisoned for it.

My Lords, I declare an interest as a barrister. The Bar is opposed to the proposal and the chairman has written to a number of your Lordships. I also declare an interest having once occupied the role of chairman of the Bar Council, so noble Lords can apply or discount what I am about to say. I stress that noble Lords have covered the ground. Without the invidious nature of picking out one of the speeches, I was impressed by the way in which the noble and learned Baroness, Lady Butler-Sloss, summarised things.

Anyone who has ever sat as a judge or an arbitrator knows that you are enormously dependent on the quality, accuracy and fairness of the advocacy that comes to you and on whether you get proper assistance, for example, in relation to powers of sentencing or whether enactments have been repealed or amended. Stone’s Justices’ Manual shows the incredible part played in enacting laws and amending earlier ones. The law is difficult; sentencing is difficult; and lay magistrates are entitled to the highest possible quality.

My Lords, like my noble friend Lord Bledisloe, I do not see where the problem of requiring training and providing for some form of regulation lies. For reasons that so many speakers have already given, which I shall not elaborate, it is quite obvious that it is essential to have people with experience and training to assist the court. This is as plain and ordinary a case for training and regulation as any that the House has discussed for a very long time.

My Lords, I shall be extremely brief. As a previous magistrate and someone who is surrounded by lawyers in my family, I may be one of those who have been trained almost by default in many of the procedures. Having listened to the debate, I am completely convinced by the noble Lord, Lord Kingsland, and the noble Lord, Lord Thomas of Gresford, and I pay tribute to my noble and learned friend Lady Butler-Sloss.

There are crucial things that I would want in a court. A magistrate has a clerk of the court, who is the legal expert on areas of sentencing, for example. However, the issue is not only about that. We need to know that people are being addressed by staff who are thoroughly qualified, able and, above all, independent and regulated. What the noble Lord, Lord Thomas of Gresford, said about training for barristers is crucial. The time taken to experience what happens in a court and so on is vital. The fact that they continue to learn and are independently regulated by ILEX is hugely important. I am thoroughly in favour of the amendment, which I hope will be put to a vote—indeed, all the amendments are crucial.

My Lords, I thank all noble Lords who have spoken. First, I need to say to the noble Lord, Lord Kingsland, that as a fully paid-up member of the profession I do not think that the Bar is under threat. In the past 10 years, the CPS has been increasingly successful in attracting senior members of the Bar and solicitors to work for it. As a result, the quality of advocacy has been significantly enhanced. I do not think that the noble Lord is suggesting that senior members of the Bar who are attracted by employment in the CPS should be debarred from so doing. That form of protectionism is far from his heart.

Quality is most important and I agree with all those who have emphasised it. I do not think that the young Bar is frightened of competition either. I hear what the noble Lord, Lord Thomas of Gresford, says about training. He referred to those DCWs who do not do contested cases. The training for those who do such cases is much greater. I gently say to him that one often finds that those who have had 20 or 30 years’ experience working in the Courts Service before becoming designated caseworkers know a thing or two more than a 21 year-old young barrister who is doing his or her first cases.

Quality is important and I remind the House that the DCWs about whom we are talking have been around and able to perform this work since 1998. They have gained a great deal of practical experience in the court process and through that experience they are well equipped. Who does this work? The average age of a designated caseworker is between 30 and 49; 68 per cent are women and 32 per cent are male; and 71 per cent are in the age bracket that I have just described. They are seen as a good, sound resource. Many of them participate in obtaining qualifications. Twenty-nine are studying for legal qualifications; 22 are studying for their legal practice certificate; and seven are on the Bar vocational course. Between 1998 and 2008, 566 DCWs were trained by the CPS. The noble and learned Lord, Lord Slynn, and the noble Viscount, Lord Bledisloe, are right that training can be tailored to meet needs.

DCWs will be doing three tiers of work. Some will do summary cases only. Let me give the House the flavour of summary cases. They include common assault, drink-driving, threatening behaviour, harassment, taking without consent, wasting police time, assaulting a police officer, being found in enclosed premises and motor vehicle interference. For non-imprisonable offences, DCWs can go to the dizzy heights of prosecuting speeding, careless driving, no insurance, no driving licence, no MOT, construction and use regulations for motor vehicles, ticket touting, touting for hire services, begging, selling alcohol to a person who is drunk, kerb crawling, soliciting, the offence of dogs worrying livestock—a terribly difficult matter—being drunk in a public place and obstructing the highway. We are not talking about the most serious offences, although I am not suggesting that these offences are unimportant.

We are considering an incremental situation starting with tier 1, so that when someone first becomes able to present cases they will be summary offences only. Tier 2 will be summary offences only and non-imprisonable. A gradual increase is appropriate at this stage. I understand those who say that all the matters dealt with by designated caseworkers should be non-imprisonable. I made it clear the last time we debated this matter that that would be regulated by the director’s instructions. We have an opportunity to regulate what DCWs do. I understand the comment of the noble Earl, Lord Onslow, about paying peanuts and getting monkeys, but I assure him that DCWs do not fall within that category. Miscarriages of justice occur when the quality of the advocacy is not good.

My Lords, that is exactly the point that we are making. Somebody should be regulated and tested to make sure that they can do all the things that the noble and learned Baroness says. That is all one is asking for. In other words, the fact that they can do all these things is one thing, but they should be trained and they should be disciplined if they get it wrong.

My Lords, they are trained; they are regulated by the CPS; they are properly managed. They have access to supervision by a trained lawyer all the way through. The new procedure, which noble Lords will be aware of, is that a qualified lawyer will look at each case, will be responsible for the charging decision that is made and will be able to prepare matters in order to decide whether a case is amenable and should be dealt with by a DCW or some other form of representation. The noble Earl’s concerns about management, control, testing, training and ensuring quality are certainly covered by the management structure of the CPS. I remind the House of the National Audit Office report, which spoke very favourably about the quality of DCWs. I understand the concern that has been expressed, but that concern is not merited.

I would like to answer before the noble Lord, Lord Thomas of Gresford, rushes to his feet. I ask him to give me that courtesy, if he would not mind.

In the concerns that have been expressed, the noble Lord, Lord Kingsland, raised the issue of the codes within the regulatory framework of the Institute of Legal Executives. As I said, professional integrity is the cornerstone of the current Crown Prosecution Service statement of ethical principles. It is enshrined in the codes of conduct and advocacy of the Institute of Legal Executives. The harmonisation of these codes with those of the institute will ensure that designated caseworkers provide the same ethical safeguards to the court as the other legal professions. It follows, therefore, that compliance with the current and future codes within the regulatory framework of the Institute of Legal Executives takes precedence. Regulation by the institute will be every bit as meaningful and robust for designated caseworkers as it is for barristers and solicitors. I do not envisage any circumstance where a designated caseworker or, indeed, a Crown prosecutor would face criticism from his or her line manager for putting those ethical responsibilities first.

In responding to Amendment No. 82, I believe that it is important to emphasise that the CPS voluntarily sought regulation from the Institute of Legal Executives for its designated caseworkers. There is nothing to be gained by placing such regulation on a statutory footing. As I hope I made clear in my letters, to do so would require a significant amendment to the Legal Services Act 2007. At present, and by virtue of the fact that designated caseworkers are granted their rights of audience through statute, they are currently exempt from regulation under the Legal Services Act. This, I believe, was debated when that matter was going through. To amend the Legal Services Act would be disproportionate and unnecessary, given the public commitment of the CPS to working closely with the Institute of Legal Executives to bring about meaningful regulation. I am very happy that the noble Lord, Lord Kingsland, referred to that matter in his remarks.

Perhaps the overriding concern is reflected in Amendments Nos. 83 and 84. A designated caseworker may deal with cases where the nature of the offence may leave the defendant liable to a sentence of imprisonment. I have made it clear that the Crown Prosecution Service would internally limit the deployment of designated caseworkers, using the DPP’s statutory powers under the Prosecution of Offences Act 1985 to issue general instructions. I remind the House that those instructions have been in situ for the past 10 years; they have worked extremely well and no one has suggested that they have not properly regulated the way in which designated caseworkers have done their jobs. This would have the same practical effect as limiting the clause. I have also made it clear that there would be the added safeguard of the Attorney-General, who would have to consent to any change. I am happy to repeat those undertakings today.

However, in light of the concerns that have been expressed both on the last occasion and today, I also propose that an independent review be undertaken by Her Majesty’s Crown Prosecution Service Inspectorate and that independent advice be provided to the Attorney-General before any decision is made to remove or amend the internal restriction. I hope that this added safeguard will reassure the House on this important point. There would be an independent scrutineer of whether it was appropriate to make a change before any such change took place.

An important general point needs to be taken into account in considering the merits of this clause. The ability of the Crown Prosecution Service to grow and encourage the development of designated caseworkers through the Institute of Legal Executives route is one that we should all commend. We have for many years expressed a desire to make the profession more open to both genders and to people from minorities. We know that women and members of the black and minority ethnic community often find it difficult to go immediately from school to university but work very well once they are in a situation where they can be trained and come forward. We have found that designated caseworkers have been a very rich vein. One designated caseworker is now the chief prosecutor in Devon and Cornwall; she is acknowledged to be of real value.

There is merit for the criminal justice system. Fellows of the institute who attain the advocate certificate have wide-ranging powers. To limit those powers in the clause would be to miss an opportunity to use their talents to prosecute a wider range of summary trials, including those where imprisonment is a sentencing option. I remind the House that it takes five years of additional training before an ILEX member can get an advocate’s certificate, so that they are fully conversant with all those important technical issues.

The noble and learned Lord, Lord Mayhew, asked about the Magistrates’ Association. He is absolutely right: the Magistrates’ Association expressed anxiety about the move and was antipathetic to it. The noble and learned Lord, Lord Mayhew, is also right that it spoke about the unamended version of the first iteration of this clause. I have written to it subsequently. I do not have a letter from it, but I understand that in conversations with the CPS it has indicated that it is happier now with the status. However, it still expressed some concerns about the details. I am afraid that I do not have anything in writing, so I cannot tell noble Lords what particular detail might have caused continuing difficulty. The association is certainly happier. The issue about which it was concerned was similar to that voiced in this House about imprisonable offences.

I turn, finally, to where we are now. Amendment No. 84A would remove paragraph (d) of the definition of a preventative civil order. The effect of this amendment, which the noble Lord, Lord Kingsland, did not speak to, but I assume he still wishes to—

My Lords, I had imagined that that matter would be dealt with by the noble Lord, Lord West of Spithead, but I did not see him in his place so I omitted to say anything about it. However, we think it wholly inappropriate for a non-legally qualified CPS employee to deal with a VOO, which is an assessment of whether somebody is safe to remain at large in society. It is wrong for somebody who is not legally qualified to deal with a matter which could lead to indefinite incarceration.

My Lords, I hope that I will be able to assist the noble Lord. The effect of the amendment, as he suggests, would be to remove the general power of designated caseworkers to conduct post-conviction applications or other civil proceedings to obtain preventive orders that do not come within the ambit of paragraphs (a) to (c) of the definition. At present, the only orders to fall within paragraph (d) are the sexual offender prevention orders. However, while sexual offender prevention orders would fall within this paragraph, the role of the prosecutor is confined to reminding the court that it has the power to make such an order and not to lead any evidence. That is literally what they do: they just remind the court. I do not think that the noble Lord would take issue with somebody being entitled to remind the court of its duty in that regard.

In essence, therefore, the primary purpose of paragraph (d) is to ensure that designated caseworkers have rights of audience to conduct proceedings were any new orders to be introduced through future legislation. This would of course be subject to the director’s guidance as to whether the CPS thought it appropriate for them to appear. In reaching such a decision, due regard would have to be paid to ensuring that their powers were no more than those capable of being exercised by a Crown prosecutor. I hasten to add that violent offender orders would not come within the remit of a designated caseworker, as Part 7 of the Bill provides for applications for such orders to be made by the police and not by prosecutors. So that would not be within their purview. I understand the noble Lord’s anxiety on that, and I am happy to assure him that I can ease his troubled heart.

My Lords, the noble and learned Baroness wished me to remain in my seat until she had finished her response. I have done so, although I wanted to ask, in the context of what she was saying, about an article by Frances Gibb which appeared in the Times on 19 February. It was headed:

“‘Barely trained’ paralegals will be forced to take CPS cases to trial”.

The noble and learned Baroness must have read it, as it is very much within her area. It states:

“An internal survey for the Crown Prosecution Service has found that only half the 400 paralegals who will take on the contested—or ‘not guilty’—trials felt that they had had enough training. A third said that they were under pressure to do court work that fell beyond their abilities”.

That is described as an “internal survey” for the Crown Prosecution Service. Was there such a survey—was that a correct statement? If so, how does it accord with everything that the noble and learned Baroness has told us about the training of those intended to undertake this work?

My Lords, I understand that a survey has been carried out but I do not know its final results; I have not seen a report. However, I can point to issues to which I alluded in Committee—namely the reports from Her Majesty’s inspectorate and from the Audit Commission, both of which speak highly of outcomes and the professionalism of those who undertake this work. I can also reiterate the CPS’s commitment to ensuring that designated caseworkers who undertake representation in court have the necessary skills. As noble Lords will know, there are designated caseworkers who do not appear in court. We have, as I said earlier, a number of tiers of designated caseworkers. One of the benefits of the tiers is that those who qualify as designated caseworkers can move through the system obtaining greater training and opportunities, either becoming ILEX members or taking solicitors’ or barristers’ exams. We therefore have the full spectrum.

My Lords, I have listened with enormous interest to this debate. It seems that much the most important thing was said by my noble and learned friend Lord Mayhew when he asked about the magistrates’ view. The most important thing that the noble and learned Baroness has said to us is that the magistrates have said that they are happier, but not yet happy. She was unable to tell us the precise areas in which they are not happy because they have not yet written to her.

Speaking as somebody who sat not as a magistrate but as the Scottish equivalent, an honorary sheriff, I think that the whole question hangs on whether the magistrates feel that cases will be put properly before them and they will get the help they need in making decisions. I suspect that magistrates need that help more than other judges do, and it is important that they get it. That seems the overwhelming problem. It is a complicated matter, but if the magistrates are not yet happy with the arrangement, the House ought not to reject the amendment.

It is difficult, my Lords. I wrote to the chairman of the Magistrates’ Association on 12 March, and I know from experience that when the Magistrates’ Association is keenly concerned and/or anxious, it will write back speedily. I have not yet received a response. Because I had not received a response, an inquiry was made, and the indication which I have given to the House was given to those who instruct me. I therefore cannot help the noble Baroness on the magistrates’ current position. All I can do is to assure the House that the CPS’s primary concern is to ensure that the quality of the prosecution given to the magistrates is of the highest quality.

We have had no reason to think that the designated caseworkers who have been given power to present cases have been found wanting; they have not. They have done their job and done it well. That is something for which they should be commended.

My Lords, I thank the noble and learned Baroness for her full reply and thank all noble—and noble and learned—Lords who have spoken in this debate. I ask forgiveness from all of your Lordships if I do not refer to each excellent contribution.

The noble and learned Baroness expressed concern about my troubled heart. If I may plagiarise a famous line from the film “Casablanca”, my heart is my least vulnerable organ.

The noble and learned Baroness seemed to suggest that the leitmotif of my intervention was that the Bar was under threat. I respectfully suggest that either I misspoke, as a famous lady across the Atlantic said, or at least I did not speak with enough clarity. My proposition is not that the Bar is under threat from the Government’s proposals, but that the defendant is under threat as a result. That is the basis for all the concern that we have been expressing this afternoon.

I agree with the noble and learned Baroness that the Government share our view that, at this juncture, it is appropriate for non-qualified CPS employees to deal only with summary offences that do not have a sentence of imprisonment at the end. There is no difference between us on that matter. The only question is whether we want to go a step further some years hence. Should the Government have to come back with primary legislation or can this matter be dealt with more informally? The noble and learned Baroness with typical generosity made a concession in saying that she would introduce a further safeguard of an independent qualified lawyer to look at a proposal by the CPS to make this transition. I am grateful to her for going to the trouble of doing that, but on balance I still prefer our amendment.

I have no doubt whatever about the quality of DCWs. There are many extremely well-qualified DCWs in the CPS, but the noble and learned Baroness will have heard many of your Lordships express concerns about the adequacy of the training that they are likely to receive. I am particularly exercised by the fact that, although a deal will be struck with ILEX on these matters, which I hope will be satisfactory—I am thinking particularly of the remarks of the noble Viscount, Lord Bledisloe, on the issue—it is also important that they are seen to be properly qualified. That is why the intermediation of an approved regulator is so important. I accept that that is prohibited in the 2007 Act because of the provision in Schedule 3; but if these amendments are passed by the House that will be a later proposal and therefore the provision in the 2007 Act will fall.

I am grateful for the Minister’s assurance about the VOOs, but frankly this matter should not be handled in any circumstances and in any way by DCWs. For all those reasons, I wish to test the opinion of the House.

moved Amendments Nos. 83 to 84A:

moved Amendment No. 85:

My Lords, my name is attached to the amendment. The noble Lord, Lord Ramsbotham, clearly set out why it is so fundamentally important, so I will cover only a few of the main issues. We know that children in care are overrepresented in the secure estate population. Approximately 40 to 49 per cent of children and young people in custody have been in local authority care, and about 18 per cent are still subject to statutory care orders. This is a particularly vulnerable group of children who are most likely to experience resettlement problems on release.

We on these Benches believe that any child removed from their ordinary care arrangements by the state should be understood to be looked after by the state, both in the spirit of the term and by statute. Even those children who are sent to custody directly from their parental home, without being subject to any current or former care arrangements with the local authority, are, to all intents and purposes, being removed from any effective parental supervision and responsibility. In other words, it should be recognised that they move into the care of the state. The Government will argue that, under current arrangements, the youth offending team will have case responsibility. We would say that the main function of youth offending teams is to prevent reoffending, and that while they are required to take account of the holistic needs of the child, they do not have a primary welfare function. While they were originally established as multi-agency teams, with staff from a number of sectors, over time these links have become extremely tenuous and youth offending teams now often consist of generic youth justice workers. For this reason, we feel that children who are looked after, whatever their status and whether or not they are eligible care-leavers, should continue to have involvement from their own child and family social worker throughout their period in custody. That would be the holistic way to manage them, and it is not currently the case.

My Lords, I, too, support this amendment completely. I am sure that it will be the Minister’s case, when he replies in a moment, that to a large extent this already represents the pattern of things. That being so, my plea would be that there is no earthly reason why it should not be spelled out in statute. At no time is the need for this support as great as when a young person goes into custody. This is the interface between the two systems—two systems that unfortunately show a massive over-representation in the custodial system of children who have been in care. They are over-represented by something like 15 to 1—I think that is the relevant statistic. Therefore there can be no earthly argument for not spelling this out in a specific way. It does not extend the law; it does not extend the practice; but it clarifies the minds considerably of those who are involved in these responsibilities.

My Lords, I have seldom been happier to see my noble friend Lord Judd—and he certainly is a friend, even if he is on a different Bench—appear suddenly on the Labour Benches. We have been missing him all day and he has arrived for just the right clause.

I very much support this clause. As my noble friend Lord Ramsbotham said, our debates on the Children and Young Persons Act went through it, too. We are dealing with the most vulnerable group of people that you can think of. They have almost certainly suffered from the many problems that we have heard read out during these debates. Having a supportive worker in touch with them could make all the difference to whether they reoffend. I stress one thing—emphasis is laid on the particular worker chosen having the necessary skills, and I do think that that is frightfully important. But as well as that, there should be some degree of choice for the young person concerned. I hope that that will be borne in mind. Above all, they need a mentor who will take them through the more difficult periods of coming out of some form of custody and back into the real world—giving them advice on education, skills training and other things. I very much support this amendment.

My Lords, I, too, support this amendment and also speak to Amendment No. 85A, which is linked. Actually, it is a stage before Amendment No. 85—it is a new amendment that comes through the Standing Committee for Youth Justice. The committee has asked me to put this forward, which I am very happy to do. It bears a certain resemblance to my earlier amendment, to make Section 37 of the Children Act 1989 part of the youth justice system. This is intended to amend the Children and Young Persons Act 1969, Section 9, in a similar way. We are back, on both amendments, to the welfare of the child appearing in the youth court.

The local authority has an obligation, where a child is looked after or in need, to provide proper proposals for that child and, where appropriate, a care plan. Lying behind Amendment No. 85A is the need for careful communication and working together between the social workers of the home local authority and the YOTs. Often, there is a lack of that working together, and a lack of communication. In too many cases, there appears to be a feeling by home social services departments that, when the child is coming up before the youth court, it is the job of the YOTs, which of course include a social worker, to get on and deal with the child. They get asked by the YOTs, from time to time, what proposals they have for the child. All too often, the home local authority says, “We’ll wait to see the outcome of the court proceedings”. That is not good enough, because the YOTs, and the magistrates of the youth court, would find it extremely helpful to know what social services think should happen; and to know the contents of the care plan for the child who is looked after. There should be a genuine working together between the local authority, which has the care of the child, and the YOT that is taking over—but should not be taking over to the exclusion of the home local authority and, of course, the court, which needs all the help that it can get.

My Lords, we return to the question of youth justice. I suppose there have been two overriding themes in our debates; first the question of the number of young people in custody and the support given to them and, secondly, the important question of the inter-relationship between the criminal justice system and local authorities.

Noble Lords are absolutely right to bring us back to this point, because clearly if we are to have an effective criminal justice system and if we are to achieve the outcomes that we wish to achieve in the prevention of offending and reoffending—to come back to our previous debates on this—it is absolutely critical that there is a strong partnership relationship between local government and the criminal justice system, particularly the YOTs. That point is very well made indeed. I certainly accept the argument made by the noble Lord, Lord Ramsbotham, that we have to secure consistency of approach. I very much agree with that and with the intention behind much of this amendment, which is to ensure that local authorities provide the right kind of support to children and young people in custody who they have looked after or who remain in their care. There are many aspects of the intention behind this amendment that the Government support. As noble Lords will be aware, the amendment duplicates much of the effect of Clause 16 of the Children and Young Persons Bill, which was recently debated in your Lordships’ House.

The policy intent underlying the provision in the Children and Young Persons Bill in relation to children in custody is to make sure that services for that very vulnerable group of children are effectively co-ordinated, so that they have the necessary support to re-establish themselves in their home area. For some young people, this support will mean being provided with accommodation, foster care or a children’s home, for example, and this would mean that they would again become “looked after” in the formal sense.

The Children and Young Persons Bill will ensure that there is a statutory framework in place so that local authorities maintain contact with children who they have looked after and who are involved with youth justice services. The purpose of that contact will be to maintain continuity with the child and to assess what support the child may need on release, including whether they should again be provided with accommodation by the local authority.

As the noble Lord, Lord Ramsbotham, implied, following the response of my noble friend Lord Adonis in the debate on the Children and Young Persons Bill, we will use the powers in that Bill to require the local authority to visit children who were provided with voluntary accommodation by the authority who are no longer looked after as their status is dependent on provision of accommodation. That will ensure that all the children within the scope of proposed new subsection (1)(b) of the amendment will receive visits. As my noble friend Lord Adonis has made clear, the intention is that these visits will ensure the continued involvement of local authority children’s services by maintaining regular contact between the child and the local authority.

We are not at present able to make firm commitments as to the detailed content of the regulations and guidance about how the visiting duty towards looked-after children in custody will be discharged. We will, however, ensure that the arrangements for local authority representatives are compatible with the sentence planning, case conference and resettlement meetings while the child is in custody. I say to the noble Baroness, Lady Howe, that I very much warmed to her use of the word “mentor” in that regard. We have made it clear that as far as possible—one has to understand the practical challenges involved here—we would expect the local authority representative undertaking these visits to be a professional who is known to the child. We do not think that this function should be carried out by a member of a youth offending team, and we will make that clear in statutory guidance.

The visiting role should, overall, mean that local authority representatives ensure that the child is properly safeguarded, that their welfare is promoted, that staff in youth justice services have the relevant information about the child’s past experiences and that children’s services are fully participating in planning for supporting the child in the community on release. In developing the new regulations and the guidance we will consult widely, which will involve the Youth Justice Board, Her Majesty’s Prison Service, voluntary sector organisations and local government, so that the input from children’s services complements and adds value to the support already provided by the youth justice system.

I appreciate that this issue has been raised in debates and that my noble friend Lord Adonis has corresponded with the noble Lord, Lord Ramsbotham, with more detail about how we intend to ensure that children who are or who have been looked after in custody receive better support. I reiterate that the Government share similar concerns to the noble Lord and other noble Lords, and that we are taking action on that basis.

Amendment No. 85A was spoken to by the noble and learned Baroness, Lady Butler-Sloss. I congratulate her on the ingenuity of her drafting, since she has used the points that I made against her when we debated this in Committee. The amendment would extend the existing power to direct an investigation to require a local authority to include in its report to the court plans or proposals for working with the child or, if it had no such plans or proposals, why it made that decision. In addition, the amendment would require the local authority, where the child is looked after, to provide the court with a copy of the full care plan, as she so eloquently described in her speech, including additional steps to take if the child were to be convicted of the offence.

I remain of the belief that there is little need for this power in view of the responsibility under the Crime and Disorder Act 1998 for youth offending teams to provide reports to the court on young offenders. The youth offending team is attached to the local authority, and its multi-agency status should mean that it is best placed to draw together all the relevant information when compiling a report on a young offender. That is probably why the courts do not use the Section 9 power to order a local authority to undertake an investigation of the young offender.

I say to the noble and learned Baroness and to the noble Baroness, Lady Falkner, that I understand their points about what they described as local authority disengagement. I understand their concerns, and I accept that more needs to be done to ensure that youth justice bodies and children’s services work together more closely, but it is not a matter of legislative provision; it is a matter of practice. The question is how we ensure that we get better practice. I do not think there is any doubt about that. We are looking at the youth crime action plan, where we are looking at the relationship between youth offending teams and children’s services, which will inform the further development of plans for the youth justice system. I hope that will pick up many of the points that noble Lords have raised today.

Since this debate very much turns on the performance of local government and its inter-relationship with the criminal justice system, I add that we think that the Children and Young Persons Bill is addressing a gap in the statutory provisions. The joint sponsorship of youth justice by my department and that of my noble friend Lord Adonis is a very strong step in the right direction in ensuring a much more complementary and integrated approach, and getting that right at national level has an influence on how YOTs and local authorities should work together in the future.

I have already mentioned in our previous debates the impact of the YOTs inspection regime. As noble Lords will recall, that is a regular inspection, which identifies successes and weaknesses in the performance of YOTs. That enables us to pinpoint areas where performance needs to be improved. I mentioned again the youth crime action plan which will be informed by our debates.

Finally, I shall mention the local authority performance framework in general. While I would not wish to bore the House with a detailed exposition of our new approach to performance management within local government, given the critical importance of youth justice in helping local authorities meet some of the pressures that they face, I am sure that focusing on a smaller number of statutory targets will help to ensure the consistency we all want to see.

I do not accept that changes in statute are required. What is required is an improvement in performance and consistency. I hope that I have enabled noble Lords to be satisfied that the Government are far from complacent in this area. We are committed to doing all we can to improve performance and to ensure that there is an integrated approach between YOTs and local authorities so that these very vulnerable young people get the right kind of support.

My Lords, I thank the Minister for replying in his customary full and courteous way. I listened in particular to the last mention he made of the importance of the YOT inspection regime because that is crucial if there is to be any reassurance about oversight and improvement in performance. I have been greatly reassured by correspondence with the noble Lord, Lord Adonis, in which he stated that it is intended that the instructions should be in the guidance. However, the oversight has always concerned me. Up until now, the oversight that should have been there has not achieved its aim. I hope that the guidance will include direction to YOT inspection teams that they should check to see that every young person in care has a case worker with him. If there was full assurance that that was the case, the performance would be overseen.

However, as the Minister will be aware, I still remain unhappy that that is not in statute. I have been watching it very closely for the past 12 years and it particularly concerned me that the oversight of child protection procedures that should have been taking place in young offender establishments did not take place because somehow people thought that it did not apply. I accept what the Minister said, but I feel that I must test the opinion of the House.

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.42 pm.

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