House of Commons Hansard Debates for 8 Jul 1999 (pt 17)

3 pm

A resource, such as those committees, should not have its time wasted, and the elaborations of the court should not be made necessary by inflexibility in the structure of the Act, as it will be. That is why I support the new clause. I do so honestly, although I do not think that the new clause is the perfect answer as it also uses the word "shall". However, it gives more options before we reach compulsory referral.

There is little opportunity left for the Home Secretary, as we are getting to Third Reading today. However, I beg him to try to find a way to allow the court honest flexibility. He may say that there is a certain flexibility because courts can always impose a fine.

Mr. Greenway: That is the whole point--the courts cannot impose a fine. However, there will be an opportunity for the Home Secretary to think again. If he gets his way, and neither the new clause nor the Liberal Democrat amendment is accepted, the Bill will go back to the other place with the measure reversed. The Home Secretary's noble colleagues will then have to explain why.

Sir Nicholas Lyell: I am extremely grateful to my hon. Friend. We need to get back to the sensible position suggested by their Lordships in a thoroughly constructive amendment to this otherwise thoroughly sensible proposal by the Government. Our suggestion--that a fine or conditional discharge would provide more flexibility--is a second-best, but a useful second-best. I ask the House to think seriously about supporting the new clause.

The Home Secretary must not think it necessary to force these referral committees to take every case. They will be extremely enthusiastic to take up the right kind of case, and they will need no forcing. I have long experience of working with magistrates at every level, publicly and privately, and my impression is that they cry out for new measures, which they welcome with open arms when they are flexible. They will welcome the proposal with open arms, but it would be much more useful to them if the flexibility that was wisely proposed by the Lords--it is not a slap in the face for the Government, but a sensible suggestion--could be restored.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): It is a pleasure to follow the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell). I have every

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sympathy for the Bill, and this part in particular, but I agree with the thrust of the new clause. The basic problem that we have faced--it was raised time and again in Committee--is the inflexibility of this clause. I hope that Labour Members will not say that I have misunderstood it. I have 25 years' experience as an advocate, and I have a limited ability to understand legislation.

The new approach is, of course, welcome, and it gives an opportunity to avoid criminalising a young person who may, early on, be put back on the rails. It is a good investment of time and resources. For every reason, it is a good idea. However, I agree with the right hon. and learned Member for North-East Bedfordshire on the question of flexibility, which is the key issue.

Before I address that matter, there are one or two points about new clause 1 that I cannot quite accept, such as the precondition that a custodial sentence must be available. Many serious offences do not carry a custodial sentence, and that is a slight concern.

The hon. Member for Ryedale (Mr. Greenway) has worked extremely hard on this Bill, but I disagree with one of his points in relation to people electing trial to the Crown court. With some judges that I know--present company excepted--one would be better advised not to do that. One could end up with a right old tanning in some of the places where I used to practise.

I agree that bringing in the conditional discharge--referred to by both the hon. Member for Ryedale and the right hon. Member for Berwick-upon-Tweed (Mr. Beith)--is a proper and sensible approach. The inflexibility of the mandatory approach is most unfortunate.

I plead guilty to having introduced the subject of the milk bottle into the Committee's deliberations. I was probably subliminally concerned about the dairy industry. However, I ask the House to consider this example. At a temporary traffic light system where one can see from one end to the other, a young person sees that nothing is coming and drives through. He should not have done it--we all know that. That offence is not endorsable. However, under the Bill, that young person might well have to spend 12 months in a multidisciplinary panel approach because of that one transgression, which is not even endorsable. I am sure that there are many other examples. I am not trying to clever--I am making a point about the inflexibility of the Government's mandatory approach.

There are huge resource implications. [Interruption.] The hon. Member for Lancaster and Wyre (Mr. Dawson) may disagree. No doubt he will say that I have misunderstood the matter. I agree with the thrust of the Bill, and I am not arguing about the theory behind it or the practice of it. However, I am saying that it will not be appropriate for all offences.

Mr. Dawson: I believe sincerely that the hon. Gentleman is missing the point. This not a 12-month sentence to anything. This is an opportunity for a panel to be almost infinitely flexible and to address that young person's behaviour in a variety of ways.

Mr. Llwyd: What variety of ways are needed over a period of between three and 12 months to address the offending behaviour to which I referred? What possible

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expert or authority could be involved? What can be done with that type of person? These are just words. With respect, that is a complete nonsense.

Ms Beverley Hughes (Stretford and Urmston): Does the hon. Gentleman accept that, in the example he has given, that young person has demonstrated a serious miscalculation of risk to himself or herself and to others, and that while nothing untoward may have occurred on that occasion, it is an important moment to get that young person to address that risk-taking to ensure that it does not escalate?

Mr. Llwyd: The hon. Lady makes a good point, forcefully. I accept what she says in that instance, and the point has been made. She has a valid point, and I do not profess to have the monopoly of wisdom.

My main concern is the mandatory form--the inflexibility. There are two main ways of making bad law. One is to rush it and to repent at leisure. The second is to introduce something that is inflexible. One of the worst-ever pieces of legislation passed by this House concerned the Child Support Agency, and we are still grappling with it. That was so inflexible, it did not work.

The right hon. and learned Member for North-East Bedfordshire referred to the unit fines system. I was in daily practice at that time, and the number of injustices that poured out of magistrates courts, day in, day out, was an absolute disgrace. That was again because of inflexibility. The poll tax is another example. I note that the Home Secretary is laughing loudly. I am pleased that he is enjoying himself.

I fully endorse the drift of the provision and agree with the new penalty, which will help young people in many cases; but there will be huge resource implications. Perhaps the Home Secretary does not realise how much it will cost. In some parts of north Wales and Merseyside it already takes up to six or seven weeks to get a probation report. The system will be clogged up with new referrals. I hope that the resources and expertise will be in place. I wish the system well but I foresee problems arising from its mandatory nature.

Mr. Boswell: I gather that the Home Secretary or the Minister of State described my hon. Friend the Member for Ryedale (Mr. Greenway) as an old lag in these matters. I plead guilty to being a first offender. It is not an area in which I spend much time. I have spent a great deal of time on other legislation, from the safest of all possible positions, as a lay legislator, not a legally qualified one.

I am very much in sympathy with what my hon. Friend and others have said today, above all about the need for flexibility. I want to cite an example from completely outwith the Home Office. Recent protracted experience of the national minimum wage legislation encouraged us, in Committee, despite our opposition to the principle, to offer the Government the opportunity for flexibility in the drafting, giving them what one might loosely call a get-out clause: if something had been overlooked or got wrong, it would be possible to amend it to take account of the particular circumstances of a case.

Almost immediately, such an opportunity arose in respect of au pairs. The legislation was unsatisfactory, as it would have brought to an end the ability of the majority of the people who employ au pairs to continue to do so.

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The Government had to strain legal language to the uttermost to get round inflexible legislation that was set in stone, redefining not the workers who were excluded but the work, in a way that I, as a lay person, find legally implausible.

I suspect that it would have been easier to sustain the concept behind unit fines, which is not a bad one, had magistrates been able to vary their operation when they deemed that appropriate in the interests of justice or in the light of all the circumstances of a case.