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Mr. James Clappison (Hertsmere): I begin with an apology to the House and to my hon. Friend the Member for Ryedale (Mr. Greenway), as a constituency matter meant that I missed the beginning of his remarks. However, I caught the flavour of them at the end, and his sensible points about the need for flexibility have been adopted in subsequent contributions. I also wish to declare that I am a member of the Bar.
Ministers must listen carefully to the arguments advanced by my hon. Friend the Member for Ryedale and by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) in favour of more flexibility. Labour Members have made some good contributions to the debate, but they are making slightly heavy weather of the issues.
There is no need to go over the arguments about restorative justice and referral to youth panels, as there is wide agreement in the House on them. What my hon. Friend the Member for Ryedale said in support of the new clause did not contradict the general principle of restorative justice, and it cannot be said that the need for restorative justice disposes of the new clause as the administration of restorative justice requires flexibility.
The hon. Member for Meirionnydd Nant Conwy practised for 25 years in youth courts and has much greater experience than either I or the hon. Member for Lancaster and Wyre (Mr. Dawson). However, the Government must consider very carefully the arguments of the hon. Member for Meirionnydd Nant Conwy about flexibility--which I shall turn to in a moment--and about the availability of referral to a youth offender panel in cases where a custodial sentence is not available.
The Bill restricts referral to cases punishable with imprisonment. That is one of the conditions. The hon. Member for Meirionnydd Nant Conwy asked about those offences that are not punishable with imprisonment but which magistrates think might be dealt with appropriately by referral to a young offender panel. That is an important question, but the Minister of State looks puzzled.
The Minister of State, Home Office (Mr. Paul Boateng):
It is a Conservative new clause.
Mr. Clappison:
That just shows how important flexibility is.
My hon. Friend the Member for Ryedale made another important point in favour of flexibility when he said that magistrates will decide such cases. The hon. Member for Lancaster and Wyre said in an intervention that the hon. Member for Meirionnydd Nant Conwy did not get the point because the youth offender panel could administer justice in a wide variety of ways and that it had a lot of flexibility.
I see that the hon. Member for Lancaster and Wyre agrees that that was his point, but magistrates will know the youth offender panel's capabilities and they may think that a more appropriate way to deal with a case is by means of conditional discharge or a fine.
Mr. Dawson:
Does not the hon. Gentleman recognise that the youth offender panel will be able to discuss such matters in depth and to examine a range of different ways to deal with offending behaviour and the underlying problems that become evident? The panel will be able to make decisions on the basis of knowledge that simply is not available to a youth court.
Mr. Clappison:
I appreciate that, but such decisions come after magistrates have heard the facts of a case and representations from both sides. One of the conditions for referral is that the court does not intend to impose a custodial sentence. After hearing the facts of a case, the court therefore will have to consider whether to impose a custodial sentence. That is a very important question. The hon. Gentleman's experience will tell him that the courts will want to think carefully about that. They will want to avoid imposing a custodial sentence if to do so would be unduly harsh, but they will also want to be certain that a case is not so serious that a custodial sentence is justified. The magistrates will also know what is available under a youth offender panel and might conclude that a case is best dealt with by means of conditional discharge or a fine.
It has been suggested that this rather modest new clause will undermine the edifice of restorative justice, but that is not the intention. It would give flexibility and discretion to the courts, and we should trust the magistrates.
I share the very high opinion of lay magistrates expressed by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell). Lay magistrates are very conscientious and perform an important function, and Ministers would do well to take on board what my right hon. and learned Friend said. He performed an elegant parliamentary minuet and handed a bouquet to Ministers when he commended the ideas of restorative justice and of referral to youth offender panels. Bouquets, as opposed to brickbats, are not often given to Governments by Oppositions--it certainly did not happen much before May 1997. Ministers must now think about the desirability of flexibility.
A warning should be taken from the recent past. I was not in the House when the Criminal Justice Act 1990 was passed--although I was a Conservative supporter then--so I have no expert knowledge about whether the Labour Opposition at the time were especially astute when it came to uncovering the inadequacies of that measure. I see the Minister of State smiling in a puzzled way, but we still use the framework of the 1990 Act for sentencing in criminal courts. In their amended form, the provisions have proved durable and I am not aware of any clamour for their repeal.
Before the 1990 Act was amended to take account of problems with unit costs and courts' inability to take previous convictions into account, it gave rise to great concerns among practitioners, who shared their unease with Members of Parliament at constituency surgeries. The Act was subsequently amended to render it more sensible and flexible. Ministers must listen to what has been said about flexibility and avoid tying the hands of the courts. Magistrates and judges dislike nothing more than being forced by law to take a certain course when the facts of the case suggest that a different course would be appropriate.
Sir Nicholas Lyell:
Another aspect of flexibility is worth mentioning. Has my hon. Friend noticed that the new clause also gives the Home Secretary flexibility to widen slightly the ambit of referral, which need not apply solely to the absolute first-time offender? I fully understand the Home Office's anxiety not to have too many such referrals, but does my hon. Friend agree that the provisions of the new clause would be valuable in many cases involving young people under 18 who are not absolutely first-time offenders? Would not the Home Secretary be wise to consider that aspect of the new clause as well?
Mr. Deputy Speaker:
Order. The right hon. and learned Gentleman's intervention has gone on too long.
Mr. Clappison:
My right hon. and learned Friend sensibly pressed the point that we should leave it to the courts to choose horses for courses. If they are dealing with a young person, perhaps one with a previous conviction, they should have the flexibility to deal with that person as they see fit.
I prefer to trust the courts with a measure of discretion within a sound legislative framework. The courts should have available all the powers that they need, and it should be up to them to use them as they wish. We do not know the facts of individual cases, but magistrates hear the facts and the representations. Their experience and training give them discretion on how best to deal with particular cases.
I do not agree with all that was said by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), but the Home Secretary should deal with two of the points that he made. First, victims should feel that they have a say in sentencing. The Crime and Disorder Act 1998, the Committee for which I had the privilege of serving on, set up the advisory panel. We said that it should include representatives of victims organisations, and we received certain general assurances from the Government. I should be happy if the Home Secretary would write to tell me what voice victims will have on the panel. Does anyone on the panel represent victims organisations?
The right hon. Member for Berwick-upon-Tweed also feared that the Bill spread resources too widely. It may be that resources will be inappropriately used because of the Bill's inflexibility. What are the implications for the probation service? We need flexibility, and Ministers should trust the courts.
The Government are making slightly heavy weather of the Bill. I cannot see why they put up such fierce resistance to a sensible amendment that has won support
on both sides of the House and in the other place. It would be in the spirit of criminal justice legislation if the Government showed some flexibility and listened to representations, even by those who essentially agree with them.
Mr. Peter Brooke (Cities of London and Westminster):
My only qualification for speaking is that I have no qualifications. By definition, I also have no interests to declare. I have never served as a Home Office Minister, perhaps partly because my father once did, and I felt that one member of a family in two generations in the Home Office was an adequate discharge of duty for a single human group.
Nor am I a lawyer, although my younger brother is. He is, in fact, the first member of the family in several generations to have been a lawyer. I once heard him at a local government wards inquiry, but I have never attended upon a court in which he was appearing. I have been a juror only once, when I heard a case involving a kebab house that was operating without a licence. The case took four days, but it was not enough on which to build an understanding of the entire legal system.
Neville Cardus once said that, even if all other batsmen in the world were destroyed in a holocaust, but Tom Graveney remained, we could reconstruct the total art of batsmanship. A wise lady scholar once said that we could construct the entire administration of the Roman empire from the construction of ut with the subjunctive. However, I defy anyone to construct the full majesty of the legal system on a single case involving a kebab house.
When I accepted an invitation to attend West London magistrates court's open day in May--the Lord Chancellor had encouraged them to hold it, and I think the practice extremely good--I did not know that I would be speaking in this debate. Indeed, it would not be dishonest to disclose that I did not know that I would speak in this debate until 2.15 pm today. I come to the Chamber with a mind of molten wax on which my hon. Friend the Member for Ryedale (Mr. Greenway) has most eloquently inscribed my education in these matters. Had I known that I would speak today, I should have paid even closer attention than I did to what I was told at the West London magistrates court.
I enjoyed that visit very much, not least because of a wholly admirable dramatic scenario--it ran all day, but I heard only part of it--in the youth court, in which contemporary cases, written up and prepared in advance in line with present practice, were acted out with splendid realism. That demonstrated how valuable the open days are. It was standing room only for the general public who attended the open day.
I have not yet heard the Government's case on new clause 1--indeed, I am preventing the Home Secretary from offering it. I listened intently to the hon. Member for Lancaster and Wyre (Mr. Dawson), and I felt that there was nothing between the Opposition and the hon. Gentleman on the virtues of the proposed procedure. The real test of the issue is whether the harness in which the magistrates will work should be the leather harness commended by the great Duke of Wellington or the iron harness on which the great Napoleon Bonaparte always relied. Bonaparte's dying words may well have been, "We have enlarged the borders of glory", but it was the leather harness that did for him at the battle of Waterloo.
3.30 pm
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