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Criminal Justice and Immigration Bill

Volume 700: debated on Monday 21 April 2008

Further consideration of amendments on Report resumed.

Clause 27 [Application of section 35(1) of the Criminal Justice Act 1991 to prisoners liable to removal from the UK]:

[Amendment No. 66 not moved.]

Clause 29 [Release of prisoners after recall]:

66A: Clause 29, page 19, line 40, at end insert—

“(aa) in a case where paragraph (a) does not apply, he was recalled under section 254 before the normal entitlement date (having been released before that date under section 246 or 248); or”

66B: Clause 29, page 19, line 41, at beginning insert “in a case where neither of the preceding paragraphs applies,”

On Question, amendments agreed to.

[Amendment No. 66BA not moved.]

66C: Clause 29, page 20, line 18, leave out “(2)(b)” and insert “(2)(aa) or (b)”

On Question, amendment agreed to.

[Amendment No. 66CA not moved.]

66D: Clause 29, page 20, line 44, leave out from beginning to end of line 5 on page 21 and insert—

“(12) In subsection (2)(aa) the “normal entitlement date” means the date on which the prisoner would (but for his earlier release) have been entitled to be released under section 244.

(12A) For the purposes of subsection (2)(b) terms of imprisonment which are consecutive and terms which are wholly or partly concurrent are to be treated as a single term if—

(a) the sentences were passed on the same occasion, or(b) where they were passed on different occasions, the prisoner has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions.”

66E: Clause 29, page 21, line 7, at end insert—

“(14) In this section, “term of imprisonment” includes a determinate sentence of detention under section 91 of the Sentencing Act or under section 228 of this Act.”

On Question, amendments agreed to.

[Amendment No. 66EA not moved.]

66F: Clause 29, page 21, line 42, leave out “255A(2)(b)” and insert “255A(2)(aa) or (b)”

On Question, amendment agreed to.

[Amendments Nos. 66FA and 66FB not moved.]

Clause 31 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:

[Amendment No. 66FC not moved.]

Clause 32 [Recall of prisoners released under Criminal Justice Act 1991]:

66G: Clause 32, page 24, line 18, at end insert “with the modifications specified in subsection (3A)”

66H: Clause 32, page 24, line 18, at end insert—

“(3A) Section 255A applies as if—

(a) the reference in subsection (2)(aa) to section 246 or 248 of the 2003 Act were a reference to section 34A or 36 of this Act,(b) the reference in subsection (12) to section 244 of the 2003 Act were a reference to section 33(1), (1A) or (2) of this Act,(c) subsection (12A) were omitted (provision to the same effect being made by section 51(2) of this Act, as it applies by virtue of subsection (8) below), and(d) subsection (14) provided that “term of imprisonment” included any sentence of detention mentioned in section 43(1) of this Act.”

On Question, amendments agreed to.

Clause 33 [Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)]:

[Amendment No. 67 not moved.]

Clause 34 [Removal under Criminal Justice Act 2003]:

[Amendment No. 68 not moved.]

Clause 35 [Referral conditions]:

69: Clause 35, page 27, leave out lines 31 to 38 and insert—

“(c) subsection (2A), (2B) or (2C) below is satisfied in relation to the offender. (2A) This subsection is satisfied in relation to the offender if the offender has never been convicted by or before a court in the United Kingdom (“a UK court”) of any offence other than the offence and any connected offence.

(2B) This subsection is satisfied in relation to the offender if the offender has been dealt with by a UK court for any offence other than the offence and any connected offence on only one previous occasion, but was not referred to a youth offender panel under section 16 above on that occasion.

(2C) This subsection is satisfied in relation to the offender if—

(a) the offender has been dealt with by a UK court for any offence other than the offence and any connected offence on one or more previous occasions, but has been referred to a youth offender panel under section 16 above on only one previous occasion;(b) an appropriate officer recommends to the court as suitable for the offender a referral to a youth offender panel under that section in respect of the offence; and(c) the court considers that there are exceptional circumstances which justify ordering the offender to be so referred.(2D) In subsection (2C)(b) above “appropriate officer” means—

(a) a member of a youth offending team;(b) an officer of a local probation board; or(c) an officer of a provider of probation services.””

The noble Lord said: My Lords, we are making remarkable progress—which, if I may say so to the noble Lord, Lord Henley, is what I mean by being “on a roll”.

Amendment No. 69 has been tabled in response to the debate on the amendment tabled in Committee by the noble Lord, Lord Kingsland, which sought to allow for a young offender to receive a second referral order where the youth offending team or other appropriate body recommended one. We had a detailed debate on the merits of allowing a second referral order in which I made clear the Government’s concern that we must retain the integrity and effectiveness of the referral order. The order is targeted primarily at young offenders appearing in court for the first time who plead guilty to the offence, and it has the lowest reconviction rate at 44 per cent. We are anxious not to undermine its success. We are already making provision in the Bill to allow a referral to be made on a second conviction where a referral order has not been made previously and we are also easing some of the restrictions placed on its use. We have also responded to the debate in another place by adding flexibility to the referral order so that an order may be extended by three months or revoked early in appropriate circumstances where the youth offender panel recommends this to the court.

I have listened carefully to the arguments put forward in Committee and this proposed amendment is the result. It addresses both the concern put forward by the noble Lord, Lord Kingsland, and the Government’s concern that a second referral order should not become the norm. I have accepted that there will be circumstances where it will be appropriate for a young offender to receive a second referral order; for instance, where a significant time has elapsed since they first underwent the referral process. However, requiring that this should happen only in exceptional circumstances and where the youth offending team recommends it will ensure that a proper gate-keeping process is undergone. We have consulted with the Youth Justice Board, which agrees with what the Government are proposing. I hope that the noble Lord, Lord Kingsland, will feel that I have gone at least a considerable way to meeting his point. I commend the amendment to the House.

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]:

70: Clause 42, page 33, line 25, leave out from “after” to “In” in line 27 and insert “subsection (1) insert—

“(1A) ”

The noble and learned Lord said: My Lords, this is a group of minor technical and drafting amendments to Part 3. In the main they are consequential amendments to what are now Clauses 42 and 43 of, and Schedule 8 to, the Bill as a result of the removal in Committee of the then Clauses 42 and 43, which contained a change to the test applied by the Court of Appeal in relation to the safety of a conviction. I beg to move.

On Question, amendment agreed to.

70A: Clause 42, page 33, leave out lines 27 to 30 and insert—

“(1C) In determining appeals referred to it by the Criminal Cases Review Commission on the ground that there has been a development in the law since the date of conviction the Court of Appeal may dismiss the appeal if it would have refused leave to appeal out of time.”

The noble and learned Lord said: Clause 42 is intended to deal with a very narrow range of cases where a conviction is referred to the Court of Appeal by the Criminal Cases Review Commission on the ground that there has been a change of law since the conviction.

The existing practice of the Court of Appeal is clear in cases in general. When an appeal is based on a change in law, the appellant will almost always need leave to appeal out of time. That is the nature of such cases; they often do not arise until long after the conviction. The court will almost always refuse leave to appeal in those cases unless the appeal is itself extremely meritorious, so the conviction is upheld. That is the solution in all ordinary cases based on a change of law and it is a solution that works very well. But it does not work when the appeal is referred to the Court of Appeal by the CCRC. In such cases the appellant does not need leave to appeal, so the filter that is currently operated by the Court of Appeal is ineffective. Clause 42 is intended to deal with that very narrow range of cases.

The trouble with Clause 42, which emerged clearly in Committee, is that it is almost impossibly wide as it stands. It would cause great difficulty to the practising Bar—a point made well by the noble Lord, Lord Thomas of Gresford—and it would cause the academic lawyers to have a collective heart attack. The Government now accept this, and as a result discussions have taken place between what are called interested parties, including Professor Zellick, the current chairman of the Criminal Cases Review Commission.

It was the judiciary that first suggested that the problem, such as it is—and I emphasise that it is a very small problem—should be subject to legislation. For that reason the noble and learned Lord, Lord Davidson, whom I am glad to see in his place, suggested that I have a word with the president of the Queen’s Bench Division, which indeed I did. He and I agreed on a form of words which in my view—and, much more importantly, in his view—meets the particular difficulty that gave rise to this clause and, hence, to this amendment. The amendment would solve the problem in a neat and straightforward way and I had hoped that it would be accepted as it stands.

The Government now say, believe it or not, that my amendment is too wide. They have gone from one extreme to the other. The original proposal was impossibly wide and now they say that my very narrow amendment is too wide. They say that it might cause difficulty—note “might”—when a conviction is referred to the Court of Appeal by the CCRC on two or more grounds, only one of which is based on a change of law. They accept that that difficulty, such as it is, is theoretical; but despite a flurry of e-mails between the noble and learned Lord and myself in the past few days, I cannot for the life of me see what the difficulty is. I very much look forward to hearing from him. In the mean time, I beg to move.

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.

We are broadly sympathetic to the objectives of the noble and learned Lord’s Amendments Nos. 70A, 71A and 72A. In addition to limiting the scope of the clause to referrals by the Criminal Cases Review Commission, they also limit the court’s power to dismiss the appeal to cases in which it would have refused leave out of time. We are not sure whether the latter limitation is essential, but it does have the merit of signalling—at least to the alert reader—that cases referred by the commission are in fact to be dealt with in the same way as other cases.

However, with the greatest respect to the noble and learned Lord, we have some concerns about the drafting of the provision. The difficulty is that it would apply whenever a case is referred by the CCRC on the grounds that there has been a change in the law, even if it is also referred by the CCRC on other grounds. In such a case, it would seem to give the court a new power to dismiss any of the grounds of appeal, even grounds that have nothing to do with the change of law and even if the appeal might succeed on the merits. No doubt we can rely on the Court of Appeal not to use the power in an unreasonable manner, but it seems preferable that the power to dismiss should explicitly be confined to appeals which turn on a change in the law rather than the wider category of appeals which are referred on a change in the law.

I entirely agree that it might seem churlish to look at the Rolls-Royce drafting and turn it aside, but there is simply a small technical point on which we would take issue with the proposal as it stands. We would perhaps have thought that a repenting sinner would receive a greater welcome than the noble Lord, Lord Kingsland, has extended. I say to the noble Lord, Lord Campbell, that the approach adopted here on changes in the law is precisely to deal with the concern that one would be moving into a difficult area where one might not arrive at the just outcome. It was simply for that reason that we have been persuaded by the arguments deployed.

A second technical difficulty is that when the court is considering an out-of-time appeal it has two preliminary decisions to make: first, whether to extend time; and, secondly, whether to grant leave to appeal. We do not think that it is sufficient for the clause to refer to,

“leave to appeal out of time”,

which, with respect, may conflate these two issues.

For those reasons, we do not think that the noble and learned Lord’s amendments quite do the trick. We consider that the clause should operate where, first, the case has been referred by the Criminal Cases Review Commission; and, secondly, where the fact that there has been a development in the law since the date of conviction is the only basis for allowing the appeal. We would be content also to limit the power to dismiss the appeal to cases in which the court would have refused an extension of time. A clause amended in this way would achieve our objective, which is to secure that the Court of Appeal should no longer find itself compelled to quash the conviction in the relevant cases. If that outcome would be satisfactory to the noble and learned Lord, Lord Lloyd, and to those other noble Lords who have put their name to the amendments in this group, the Government will aim to table a suitable amendment on Third Reading.

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.

71: Clause 42, page 33, line 32, leave out from “after” to “In” in line 33 and insert “subsection (1) insert—

“(1A) ”

On Question, amendment agreed to.

[Amendment No. 71A not moved.]

72: Clause 42, page 33, line 37, leave out from “after” to “In” in line 39 and insert “subsection (1) insert—

“(1A) ”

On Question, amendment agreed to.

[Amendments Nos. 72A and 73 not moved.]

Clause 43 [Power of Court of Appeal to disregard developments in the law: Northern Ireland]:

74: Clause 43, page 34, line 6, leave out from “after” to “In” in line 8 and insert “subsection (1) insert—

“(1A) ”

75: Clause 43, page 34, line 13, leave out from beginning to “In” in line 14 and insert “subsection (2) insert—

“(2A) ”

76: Clause 43, page 34, line 18, leave out from “after” to “In” in line 20 and insert “subsection (3) insert—

“(3A) ”

On Question, amendments agreed to.

[Amendment No. 77 not moved.]

Schedule 8 [Appeals in criminal cases]:

77A: Schedule 8, page 192, line 9, leave out from “substitute” to “and” in line 10 and insert ““(taken as a whole) for all the related offences of which he remains convicted”,”

On Question, amendment agreed to.

78: Schedule 8, page 192, line 38, leave out from beginning to “Effect” in line 39 and insert —

“8 Before section 31 (but after the cross-heading preceding it) insert—

“30A ”

79: Schedule 8, page 195, line 41, leave out from beginning to “Effect” in line 42 and insert—

“20 (1) For the cross-heading preceding section 30 substitute—

“Supplementary”.(2) Before section 30 (but after the cross-heading preceding it) insert—

“29A ”

On Question, amendments agreed to.

Clause 48 [Alternatives to prosecution for offenders under 18]:

79A: Clause 48, page 35, line 34, leave out “offenders aged 16 and 17” and insert “children and young persons”

The noble Lord said: My Lords, we come to youth conditional cautions. During Committee stage I indicated that we were carefully considering the issue of the current restriction on the use of youth conditional cautions to 16 and 17 year-olds. We have now had the opportunity to reflect on the arguments made by noble Lords. We have been persuaded by them and we have therefore tabled government amendments designed to remove the age restriction, so that this out-of-court disposal will be available to all young people. I hope that the House will welcome this move. I also hope that the House will acknowledge that the Government’s approach to a staged implementation is the most appropriate course to take. Initially, we intend to introduce youth conditional cautions for 16 to 17 year-olds. There is no question that applying youth conditional cautions for 10 to 15 year-olds will give rise to a different set of challenges, so we wish to learn from the application of this new out-of-court disposal to the higher age range and consult widely before extending the Bill’s provisions to the 10 to 15 age group.

I would just add that, in accordance with the recommendation of the Delegated Powers and Regulatory Reform Committee, we are providing in the amendments grouped with this amendment that the first time a code of practice for youth conditional cautions is made. It would be subject to the affirmative, rather than the negative, resolution procedure. I hope that the House will support this group of amendments. I beg to move.

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.

79B: Clause 48, page 35, line 36, at end insert—

“(2) The Secretary of State may by order amend the Crime and Disorder Act 1998 (c. 37), as amended by Schedule 9, so as to vary the provision made by it for the giving of youth conditional cautions to children and young persons under the age of 16 (including doing so by adding or omitting any provision).”

On Question, amendment agreed to.

Schedule 9 [Alternatives to prosecution for persons under 18]:

79C: Schedule 9, page 199, line 26, at beginning insert “ “Young offenders:”

79D: Schedule 9, page 199, line 27, leave out “for offenders aged 16 or 17”

79E: Schedule 9, page 199, line 29, leave out “young person aged 16 or 17” and insert “child or young person”

On Question, amendments agreed to.

[Amendment No. 79F not moved.]

79G: Schedule 9, page 200, line 33, after “16” insert “or under”

79H: Schedule 9, page 203, line 32, leave out “, 66G(5)”

79J: Schedule 9, page 203, line 36, after “below” insert “, or

(b) an order under section 66G(5) other than the first such order”

79K: Schedule 9, page 203, line 43, after “money” insert “, and

(b) the first order under section 66G(5)”

On Question, amendments agreed to.

Schedule 10 [Protection for spent cautions under the Rehabilitation of Offenders Act 1974]:

79L: Schedule 10, page 204, line 13, leave out “persons aged 16 or 17” and insert “children and young persons”

On Question, amendment agreed to.

80: After Clause 53, insert the following new Clause—

“Treatment of 17 year-olds as children for remand purposes

(1) Section 23 of the Children and Young Persons Act 1969 (c. 54) (remands and committals to local authority accommodation) is amended as follows.

(2) In subsection (12), in the definition of “young person”, for “seventeen” substitute “eighteen”.”

The noble Baroness said: My Lords, this amendment has come to us by way of the Standing Committee for Youth Justice. Its purpose is to treat under-18 year-olds as children and young people. During the final days in Committee, we debated the issue in several different guises.

The argument is that the Bill fails to address the continued treatment of 17 year-olds as adults for the purposes of bail and remand. It means that at court, 17 year-olds cannot be remanded to local authority accommodation and are automatically remanded to custody if bail is denied.

In their response to the consultation paper, Youth Justice—The Next Steps, published in March 2004, the Government first stated their intention to address the situation. The Bail Act 1976 applies in its entirety to children and young people and that throws up the anomaly that those who are 17 years old are still dealt with under adult provisions for the purposes of bail and remand. Therefore, when bail is refused they are automatically rendered in custody and do not have the protective buffer of the option of remand to local authority accommodation and are not subsequently looked after.

That means that where the court feels that bail cannot be granted due to the risk of future non-attendance at court appearances, a 17 year-old must be remanded in custody, whereas a 16 year-old would have other options. The Youth Justice Board has supplied statistics indicating that during 2005 and 2006 there were 6,561 episodes of 17 year-olds being remanded in custody. That is a considerable number.

There are also human rights considerations. In response to the UK Government’s report on the implementation of the United Nations Convention on the Rights of the Child in 2002, the UN committee on that convention recommended that the state party—our Government—review the status of young people 17 years of age for the purposes of remand, with a view to giving special protection to all children under the age of 18. The Standing Committee for Youth Justice points out that there are no obvious grounds for distinguishing between 16 and 17 year-olds in respect of bail and remand decisions. Therefore, the current system may well be seen to be in breach of Article 14, which requires equal treatment on the basis of age.

When this issue was raised in Committee, the Minister said that the issue was not straightforward, and I can see that. He said that there was a catalogue of linking factors that our amendments at that stage did not cover. He mentioned in particular the status of 17 year-olds under police bail, which is covered by the Police and Criminal Evidence Act. He felt that we would need to re-examine that as well. I accept that we do not cover all the interlinked issues. This is a very limited amendment—that is why we are keeping it as narrow as we are. Were there a Bill before us that dealt with policing issues, we would certainly raise it in that context. When such a Bill comes forward, I guarantee that we will return to these issues in that forum. The point is that where we are on this Bill is not where we might wish to be. We are trying to get the Government to accept that we need a response. It has now been a considerable length of time. I understand that it is a complex issue and that they have been looking at it, but we need to move a little further. I beg to move.

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 JusticeThe 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.

81: After Clause 53, insert the following new Clause—

“Accommodation in which persons under 18 may be detained

(1) No person under 18 shall be detained in a young offender institution.

(2) The Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) is amended in accordance with subsection (3) and (4).

(3) In section 92(1) (detention under sections 90 and 91: place of detention etc.) at the end insert “, provided that such a place is not a secure training centre of young offender institution.”

(4) In section 107(1) (meaning of “youth detention accommodation”)—

(a) omit paragraphs (a) and (b); (b) in paragraph (c) after “by order specify” insert “but not including a secure training centre or young offenders institution”.(5) In section 23 of the Children and Young Persons Act 1969 (c. 54) (remands and committals to local authority accommodation), omit subsections (7A) and (7B).

(6) In the Crime and Disorder Act 1998 (c. 37), omit section 98.”

The noble Lord said: My Lords, this again is an amendment that has been proposed by the Standing Committee for Youth Justice. Its aim is to prevent children detained on sentence or remand from being detained in either a secure training centre or a young offender institution and to ensure that the only accommodation used for this purpose is a local authority secure children’s home.

Your Lordships have already expressed in our discussions on the previous amendment and other amendments a concern about the care and treatment received by children in custodial settings. We on these Benches are concerned to ensure, as my noble friend Lady Falkner said a moment ago, that the Government’s commitments to human rights standards in relation to children are reflected in criminal justice legislation. The amendment would provide for the essential reform of children’s custodial settings, which we need if we are to stop failing children and the wider society in this critical area.

Children who are sent to custody are already, almost by definition, among the most vulnerable in the country. The Social Exclusion Unit found in 2002 that nearly half the children in custody had literacy and numeracy levels lower than those of an average 11 year-old. More than half of them had a history of being in the care of social services and 40 per cent of girls and 25 per cent of boys reported suffering violence at home. One in three girls and one in 20 boys reported sexual abuse. Again, there were serious mental health problems among both boys and girls, as well as a dependency on the drug culture.

As my noble friend Lord Carlile reported in his 2006 independent inquiry, published by the Howard League, into the use of physical restraint, solitary confinement and the forcible use of strip-searching in prisons, secure training centres and local authority secure children’s homes, some treatment of children in custody would in any other circumstances trigger a child protection investigation and could even result in criminal charges. For vulnerable children who suffer from the problems that I have outlined, it is extremely important that detention settings should be child-centred and specialised to their needs.

Young offender institutions and STCs are not tailored to meet the needs of vulnerable children. Efforts must be focused on alternatives to custody but, where custody is necessary, there must be investment in specialist staff and settings that can meet the children’s needs and facilitate their rehabilitation in a safe environment. It must not be forgotten that the Prison Service is essentially an adult institution. It is designed for adults, who are 96 per cent of its clientele. That is reflected in arrangements for management, staffing, training and regime content. We submit that holding children in Prison Service accommodation is in direct contravention of Article 40.3 of the CRC, which requires detention facilities to be “specifically applicable to children”.

Key bodies, such as the Joint Committee on Human Rights, the international Centre for Crime and Justice Studies at King’s College and the Local Government Association, have already recommended that we move away from prison settings for children. It is a long-standing problem, but recent reports from the Chief Inspector of Prisons, Anne Owers, show how important it is. In 2006, she reported of her concern about the use of force on children in prison. She said:

“In many establishments, a significant proportion of child protection referrals concern allegations of abuse or rough handling during the use of force; some have resulted in injuries, such as broken bones”.

In her 2005-06 report, she said of these issues:

“Underlying these … is the question of whether prison is the right, or appropriate, environment for many of the young people who end up there … in growing numbers which siphon off the resources needed to provide appropriate mental health services, and other support mechanisms and interventions, in the community”.

The YOIs clearly are not settings specifically applicable to children and their use for custody for children should be stopped. It is a goal that will be hard to achieve with the currently unjustifiable high level of children’s custody and there should be a drive to reduce the child custodial population. We hope that this amendment will find favour with your Lordships and that, as a result, no person under 18 shall be detained any longer in a young offender institution. I beg to move.

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.

Clause 55 [Extension of powers of non-legal staff]:

82: Clause 55, page 38, line 3, at end insert—

“( ) After subsection (1) (designation of non-legal staff) insert—

“(1A) A person designated under subsection (1) shall only be permitted to carry out any legal activity as defined by section 12 of the Legal Services Act 2007 (c. 29) if he has been authorised so to do by a body which is designated as an approved regulator by Part 1 of Schedule 4 of that Act or under Part 2 of that Schedule (or both) and whose regulatory arrangements are approved for the purposes of that Act.””

The noble Lord said: My Lords, I move Amendment No. 82 and speak to the other amendments in the group. The general issue raised by these amendments is under what circumstances non-legally qualified CPS employees could appear in certain classes of contested summary cases in magistrates’ courts.

Two issues divide the Opposition from the Government. First, what provision is needed in the Bill to ensure that the summary cases dealt with by non-legally qualified CPS employees should not carry with them a term of imprisonment? Secondly, as a consequence of getting this new power, should these non-legally qualified CPS workers fall within the full purview of the Legal Services Act 2007, passed less than a year ago? This matter was fairly fully debated in Committee, and since then the noble and learned Baroness the Attorney-General very kindly met the noble Lord, Lord Thomas, and me to see whether some resolution could be found to these two issues. Subsequently the noble and learned Baroness has also written to me explaining why that was not possible. I believe that she has copied this letter to the noble Lord, Lord Thomas.

The first issue is the question of limiting the powers of these non-qualified CPS employees to summary offences which do not carry a term of imprisonment. Our view is that this should be firmly on the face of the Bill. The noble and learned Baroness says that this is not necessary; that if the scheme worked satisfactorily, it would in effect petrify the Government’s opportunity to elide summary offences which did indeed carry a term of imprisonment. She believes—and this is no disrespect to her rigorous analysis of any situation before she makes a decision—that if the CPS makes the proposal that now is the time, the fact that she would have to give her imprimatur, or that her successor would have to give the imprimatur, would be enough.

Had that undertaking been given to me 10 years ago, I might have been more sanguine about the scheme. However, I recall that the Government proposed in the Access to Justice Act 1999 that qualified CPS lawyers should be able to become advocates in the Crown Court. I recall the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, saying that there was no need to worry because CPS lawyers would be advocates only in circumstances where there was a shortage of members of the Bar, and that these would be only very minor cases.

What do we see today? We see the CPS advertising for experienced advocates to carry cases through from their initiation right to the moment when they make speeches to the jury. I have read recently the director of the CPS saying that in some parts of the United Kingdom he would expect, over a period of time, 25 per cent of criminal cases to be prosecuted in the Crown Court by CPS employees. This was never intended to be under the Access to Justice Act. I know that the noble and learned Baroness always strives to meet her undertakings; but with the best will in the world, I simply do not believe in an undertaking of the sort that she suggests.

This limitation must be in the Bill. If in five years’ time the scheme works so well that we are convinced that we can move on, then there will be plenty of opportunities to change matters in a future criminal justice Bill. After all, I shall be amazed if there is not one such Bill every year for the next five years and probably for the next 10 years. I do not think it depends on which Government are in power. Just as night follows day, I think it is close to being that predictable. So that is the first issue.

Secondly, if we are going to extend this right to non-qualified CPS workers, should they be regulated, as are all qualified lawyers, under the Legal Services Act, and in particular, should they be regulated by an approved regulator? The noble and learned Baroness, when we had our meeting with the noble Lord, Lord Thomas, explained how she was developing a scheme with ILEX—the organisation which looks after legal executives—so that non-qualified CPS employees should be able to sign up to the principles of ILEX. I do not think that the negotiations are yet complete, but the idea is that they would slot into the Legal Services Act at that point. I came away from the meeting with the impression—I cannot speak for the noble Lord, Lord Thomas—that once that deal was done with ILEX, the CPS employees themselves would then be regulated by the approved ILEX regulator.

It turns out from the noble and learned Baroness’s letter that that is not so. She reminded us that this class of employee’s rights of audience at the court are granted under Section 77A of the Prosecution of Offences Act 1985, and she went on to remind me that, as such, they are specifically excluded from the Legal Services Act 2007 by virtue of paragraph 1(3)(b) of Schedule 3.

I simply do not regard this as satisfactory. If this class of CPS employee is effectively to perform to the same standards as ILEX, why on earth should they not be regulated by the same person who regulates members of ILEX? It does not make sense to go through the whole paraphernalia of getting them signed up and then exclude the most important responsibility that ILEX has, which is to ensure that its own members live up to what they have signed up to. Why should these employees be excluded? I make that point a fortiori because it is precisely because these individuals are not legally qualified that they need close monitoring by an independent regulator. Otherwise, the only way in which they are monitored is through their contract with the CPS.

I believe that for both those compelling reasons—a limitation to non-imprisonable offences in the Bill, and the requirement that non-qualified CPS employees should be subject to an approved regulator under the Legal Services Act—our amendment should be supported. I beg to move.

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.

I ask your Lordships to compare that with the course of training undertaken by a young barrister to reach the point at which he is able to go into court. He will need a law degree, of course; he will have to spend 12 months passing his Bar examinations; and he will have to spend 12 months in pupilage and will not be entitled to appear in court at all for the first six months. During that time he will be under the close supervision of his pupil master. It is only at that point that it is thought that he can appear in the most modest magistrates’ court in a contested hearing.

Putting the two courses of training side by side, your Lordships can quickly perceive that there is absolutely no comparison. More importantly—this is the point made by the noble Lord, Lord Kingsland—a barrister is subject to regulation. There is a regulatory authority, a very strict code of conduct and a very considerable penalty should he breach that code of conduct in any way. I agree with the noble Lord, Lord Kingsland. I was under the impression that if courses were provided by ILEX, they would lead to an ILEX qualification, which I would respect very much, and that ILEX would act as a regulatory body, but that does not appear to be the case. I hope that the noble and learned Baroness will be able to assure us that it is so, but as I understand her letter that is not intended.

A further point made by the noble Lord, Lord Kingsland, which I also refer to, is that this is essentially mission creep. In her letter to me the noble and learned Baroness refers to the fact that it may be some years before the CPS seeks to extend the designated caseworker remit to summary-only offences where imprisonment is a sentencing option. At the moment the proposal is that a designated caseworker should appear only in summary-only offences where prison is not an option. In a few years that will be proposed and no doubt we shall go on from there until, in the end, designated caseworkers with very limited training will be conducting trials in magistrates’ courts to the great detriment, I suggest, of the criminal justice system.

The amendment proposed by the noble Lord, Lord Kingsland, has our support. While we do not object in principle to designated caseworkers appearing in court, they must have proper training and they must be regulated. There must be a sanction to ensure that they carry out their functions in a way that is compatible with the principles of the way in which advocacy should be carried out in the courts of this country.

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.

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.

I do not quite understand the difficulty, since these people can be authorised to carry out any legal activity. They can presumably be told that they can do some activities and not others. Again, however, if such an authorisation is given by a designated body it must be able to remove it. Therefore, there must be a power to deal with people whose conduct is not appropriate for a responsible prosecutor.

One must remember that it is actually much more difficult to behave correctly when one is prosecuting at very short notice, on a relatively minor offence, a man who is not adequately defended. There is a much greater danger of malpractice there—not deliberate, but inadvertent—with keeping him in than there is in a full-scale trial in front of a puisne judge with representation on all sides and everyone objecting if one strays from the straight and narrow.

One must also remember, although this is not by way of any criticism, that these people who will prosecute will in fact be employees of the prosecuting authority. There will therefore be an inevitable temptation for them to stray a little to try and achieve the result that they have been sent there to achieve. Again, I am not saying that they will be fraudulent, but it is easy to overstep the mark a little—particularly if, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, there is probably nobody in court who is able to say “You can’t do that”, because they are not legally qualified to do so. Therefore, it seems essential that anybody entrusted with a prosecution is subject not to professional regulation in the sense that is normally meant but to proper regulation whereby if he strays from the straight and narrow he can either be reprimanded or suspended—or whatever is appropriate.

I would like some enlightenment from the noble Lord, Lord Kingsland, on the point about not prosecuting in criminal cases. His proposed subsection (1A) says that a person can,

“only be permitted to carry out any legal activity … if he has been authorised so to do”.

Surely, that means that it is open to the regulator to say, “You’re very green; you can only do very minor cases”, or “You have done a lot and are doing it rather well; you can be advanced to a higher level”. It would not enter everybody qualified to do anything of which he is capable under this subsection. If I thought that it would be working that way, I would be less worried about the qualification point.

I take on board what the noble Lord, Lord Thomas, said about the degree of training, which he contrasted with what a barrister has to do. However, a barrister has to be trained to perform in any part of the law, while these people only have to know the relatively narrow procedure for dealing with magistrates’ court criminal cases, and so on. Therefore, their training will obviously not be comparable. I have to confess that what the noble Lord, Lord Thomas, read out seemed to stray a little too far in the opposite direction. Again, however, the regulator can surely set how much training there is to be; the noble Lord, Lord Thomas, spoke as though that amount was to be fixed for all time and all types of cases. If it is, that would be bad, but I would have thought one could have different levels of training and degrees of experience for varying case types, and be regulated according to your knowledge and experience.

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.

The moderated provisions which we have put forward meet the concerns that noble Lords have raised. All of us agree that DCWs should not do work that could involve an individual going to prison; we absolutely agree on that, and we believe that the provisions we have put forward would cope with that. If the House were to disagree to the amendment and the Bill were to provide that DCWs should have no opportunity to do work that might involve imprisonment, we could have an order-making power, probably an affirmative power, so that the matter could come back in that way. It is unnecessary to use the panoply of primary legislation to deal with an issue which could be dealt with by order. I hesitate to use the phrase used by the noble Earl, Lord Onslow, but it really would be taking a sledgehammer to crack a nut. I know how much the House dislikes that.

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.

83: Clause 55, page 38, line 5, at end insert “or offences which are punishable with imprisonment”

84: Clause 55, page 38, line 18, after “courts” insert “other than trials of offences triable either way or offences which are punishable with imprisonment”

84A: Clause 55, page 38, leave out lines 31 to 35

On Question, amendments agreed to.

85: After Clause 58, insert the following new Clause—

“Looked-after children in custodyAssistance for looked-after children in custody

After section 61A of the Criminal Justice Act 1991 (c. 53) insert—

“61B Assistance for looked-after children in custody

(1) This section applies to—

(a) a child looked after by a local authority who is taken into custody;(b) a child or young person being held in custody who was previously being looked after by a local authority;(c) a child or young person who has been released from custody but who was, prior to his or her detention, being looked after by a local authority; and (d) a child or young person—(i) who is of a description prescribed by regulations made by the appropriate national authority; and(ii) in relation to whom the regulations impose the duties in this section on a local authority.(2) It is the duty of the local authority—

(a) to appoint a person who shall act as the caseworker to the person to whom this section applies;(b) to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies.(3) The caseworker appointed under subsection (2) must, so far as is reasonably practicable, be a person who is acting as a caseworker for the relevant person prior to that person being taken into custody.

(4) The caseworker shall have a duty, so far as is reasonably practicable—

(a) to maintain an ongoing relationship with the young person in custody; and(b) to advise and assist him with a view to promoting his welfare.(5) The duty contained in subsection (4) shall, so far as is reasonably practicable, continue after the young person has left custody.

(6) The duty contained in subsection (2)(b) only applies to a young person over 18 years of age if that person seeks the relevant advice, support or assistance.

(7) The duties imposed by subsections (2), (4) and (5)—

(a) are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;(b) are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is held in custody.(8) Regulations under this section for the purposes of subsection (7)(a) may, in particular, make provision about the frequency of visits by the caseworker to the young person in custody and upon his release from custody.

(9) In choosing a caseworker the local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a caseworker under this section.

(10) In this section—

“held in custody” means held in detention by the police, prison service or other court authority and “taken into custody” and “released from custody” shall be construed accordingly;

“the appropriate national authority” means—

(a) in relation to England, the Secretary of State; and(b) in relation to Wales, the Welsh Ministers.””

The noble Lord said: My Lords, I shall be brief. The amendment has been tabled to this Bill and to the Children and Young Persons Bill for very deliberate reasons. It seeks to add a requirement that social workers who are responsible for young people in the community stay as caseworkers with them for any period of custody to which they may be ordered. Currently, under the detention and training order regime, the consistency of supervision maintained throughout is critical at the vital stage when a person leaves custody and returns to the community. Therefore, it must make sense for the person who was previously responsible for the young person in the community to carry on with that responsibility when custody is over.

Many noble Lords may wonder why it is necessary to put the requirement in the Bill because it ought to be happening already. Tragically, it is not—the amendment would not be necessary if it were. That is not to say that the practice happens nowhere: there are some very good caseworkers who make it their business to stay with their people when they go to custody. However, it is not a statutory requirement. The Department for Children, Schools and Families says that it will include the requirement in instructions, but, sadly, I do not feel that that is good enough.

The statistics show that the children who are ordered into care are the most vulnerable within the young offender estate. Tragically, their reoffending rate is not helped because there is so little consistency in their treatment after release. They lack the parental support which others have. Therefore, I strongly feel that the requirement should be put into the Bill. It links with so much other legislation now being taken through your Lordships’ House—particularly the Children and Young Persons Bill—and therefore I beg to move.

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.

The excellent White Paper, Care Matters: Time for Change, summarises clearly the indisputable evidence of the poor outcomes for children who are in care, particularly the children who get into trouble and end up in the youth court. That admirable document is a reflection of a series of system failures. It is those system failures that this amendment is intended to address. We need to put pressure on local authorities—overworked, understaffed, under-resourced—that all too often say, “That person is now the subject of the YOT and the criminal court. We can sit back and deal with the child who has not yet got there”. It absolutely is not good enough for the local authority to take a back seat.

The Howard League for Penal Reform has taken up a number of serious cases of children who have not been identified by the agencies—children who have slipped through the net. There is a need for effective structures that are at present lacking. The purpose of giving the criminal court power to seek help from the home local authority, which is not here at present, is to give the YOT and the court proper help from the home local authority. It is to plug the gap and provide real pressure—a kick up that which I would not mention in this august Chamber. We do need home local authorities to play a proper part and they are not doing so in too many cases. These are children for whom the local authority is responsible and if, as I sincerely hope, Amendment No. 85 is agreed to by the Government, they would have help from the home local authority at the point where they go before the youth court, and before and after they go into custody. We must remember that these children who offend are children in need, children who have welfare concerns, and they are not getting the help that they need.

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.

[Amendments Nos. 85A and 86 not moved.]

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.